Court of Criminal Jurisdiction - Differences Between The Court and Courts-martial

Differences Between The Court and Courts-martial

While the Criminal Court was modelled on the basis of court-martial in England at the time, it was essentially different both in its constitution and its practice. The first and most important difference is the position of the judge-advocate. In England that office was always held by a lawyer whose duty it was to conduct the case for the prosecution and to advise the Court on legal points, especially points of evidence. They did not preside as a judge (as the court did in Sydney) and the judicial duties were performed by the president appointed to that particular court-martial. The role of judge advocate was therefore important, as the president of the court was usually a military officer not professionally qualified to deal with legal questions. Trial by court-martial in England was conducted according to the rules of the common law, and consequently the judge advocate was needed to advise on such matters of law as might arise before the tribunal. The judge advocate therefore had no voice or vote so far as the judgment of the Court was concerned. His function was to advise. He also acted as the prosecutor for the Crown, and was also supposed to assist the prisoner in his defence in the same manner that judges in normal criminal courts in those days were supposed to do. This process went some way to ensure a fair trial for the prisoner.

The judge-advocate of the New South Wales court created by the Letters Patent of 1787 issued by the British crown bore very little resemblance to the judge-advocate of the English courts. The first person appointed to the office was David Collins, who was a captain of marines. He was not in a position to discharge the duties of a legal adviser. The Court therefore administered the law without any legal assistance. An ordinary court-martial court could get by with the procedures established for it because the offences tried before it were simply breaches of military discipline. Punishment for such breaches were regulated by military law. Unfortunately, the New South Wales court was empowered to deal with the whole range of criminal offences, including both common law and statute law which then existed in England. Later judges appointed to the Supreme Court of New South Wales established nearly fifty years later were to experience similar difficulties in understanding the criminal law which applied in New South Wales.

Putting this aside, Collins was satisfied that "when the state of the colony and the nature of its inhabitants are considered, it must be agreed that the administration of public justice could not have been placed with so much propriety in any other hands." This is particularly apt as it would have been difficult to find a jury of twelve men at the time (most men in the colony being either military officers or convicts).