Court of Criminal Jurisdiction - Procedure

Procedure

The procedure at the trial of an offender was different from the criminal procedures then existing in criminal courts in England. The charge against the prisoner was not a formal indictment; instead, it was a plain statement of the offence committed. Lawyers were not permitted (and in the early days of the court, there were none in the colony anyway), so technical objections were unlikely to arise. Only one of the judge-advocates appointed to the role over the years was a lawyer. The rest were just military officers, so their knowledge of the law was not great.

The first court assembled in full military regalia with a full military guard. Phillip wished the first sittings to be an example to the convicts and to impress upon them the authority of the court and the rule of law. Collins later in his memoirs reflected that the first court was a failure, as the sentences imposed were not sufficiently strong to deter crimes in the colony.

The judge-advocate was the presiding officer, and would do everything a normal judge would do. Unlike a judge, though, he was also one of the jury. This differed substantially from how criminal justice was administered in England. When the prisoner was brought before the court, the charge was read over to him or her, and he or she was called upon to plead. Witnesses were then examined for the Crown. The prosecution was not conducted by the judge-advocate. Instead, in line with the practice of Courts-martial in England, it was left in the hands of the person who had made the charge. In contrast to the English situation, the prisoner was allowed to cross-examine the crown's witnesses. The prisoner was left to conduct his defence without legal assistance. At the conclusion of the case, the Court was cleared, and the judge-advocate and the officers deliberated over their verdict. As soon as they reached their decision, the doors were opened again and the sentence was pronounced in public. In cases not involving the punishment of death, a verdict of the majority was sufficient. If the charge was a capital offence (and nearly every criminal charge in those days was capital) the concurrence of five members of the Court was necessary before the sentence could be carried out. Where fewer than five members of the court concurred, the proceedings had to be sent to the British Government for its consideration.