Justice System

The Justice System

Magistrates

Police Districts

» The Justice System

In the nineteenth century, the English court system involved a three tiered structure with the Supreme Court at the apex, the Court of Quarter Sessions at the intermediate level and the Court of Petty Sessions being the lowest court.[1]

When the British first colonised Van Diemen’s Land (VDL) in 1803, they brought with them a rudimentary lower court system to administer justice which dated back to 14th century England and the Office of the Justice of the Peace.[2] Justices of the peace or honorary magistrates in England – predominately wealthy country land owners - carried out a combination of administrative and judicial functions, had no legal qualifications and were not paid for their services.[3] This system, adapted to meet the different social structures in the Australian colonies, largely relied on these justices of the peace (also known as lay or honorary magistrates) dispensing justice in the lower courts in VDL.[4] Initially, more serious criminal offences committed in VDL were dealt with by the New South Wales Supreme Court.[5]  

By 1823 the Court of Quarter Sessions had been introduced to try indictable crimes (where the accused has a right to trial by jury) of a non-capital nature (where the death sentence does not apply) and in 1824 a Supreme Court was established in VDL.[6]

In the face of constant criticism of the endemic corruption, undue influence and bias amongst honorary magistrates (as had happened in England in the late eighteenth century),[7] the lower court system in VDL was overhauled in 1827 and saw the creation of police magistrates (stipendiary magistrates) who were appointed by the Governor and received a stipend or payment for their services.[8] The role of the honorary magistrate (or justice of the peace) continued but was subject to the direction of the police magistrate.

Early Justice in VDL

The English criminal justice system had to be adapted to suit the colonial environment and, even locally, the administration of criminal justice developed somewhat differently in VDL to NSW.^[9] Magistrates and the lower courts were an integral part of VDL’s justice administration. A superior court body was not present in VDL until 1821, when the NSW Court of Criminal Jurisdiction sat in VDL as part of its travelling circuit court. Prior to this, more serious criminal matters had to be referred to the authorities in Sydney.* This justice system was heavily based upon martial law and the guilt or innocence of defendants brought before the NSW Court of Criminal Jurisdiction was determined by a panel of six military officers not a civilian jury.^[10]

SHIP NEWS. - On Tuesday last sailed for Port Jackson, His Majesty's colonial brig Elizabeth Henrietta, Mr. WHYTE, Master, Passengers,... - John Drummond,Esq; Miss Mackellar and Mary Evers, lately committed on a charge of murder, were sent up in this vessel for trial; and all those bushrangers who were lately sentenced to be sent to the Coal River, New South Wales... The Hobart Town Gazette and Southern Reporter, Saturday 20 September 1817 p 1.

In NSW justices of the peace (honorary magistrates) were appointed largely from the military and whose primary function was to manage the convict labour force - frequently referred to as the ‘convict magistracy’.^[11] Nonetheless, the role of a magistrate was seen to be prestigious, with strategic advantages and the potential to offer ‘secure footholds for the contest of power in the colony.’^[12] The Governor exercised complete control over the magistracy with the sole power of appointment and dismissal. The Colonial Office could override the Governor, but such occurrences were rare.^[13]

For convicts in VDL, justices of the peace were punishing all offences short of murder whereas free settlers were more likely to be sent to Sydney for trial. Punishments for the public order offences adjudicated by the magistrates were inflicted on both free and convict alike.^[14]

* The want of law courts had an evil effect on the prosperity of the settlement. In civil matters, a prospective litigant was averse to take action on account of the losses and expenditure involved in the visit of himself and his witnesses to Sydney; as a result, fraudulent persons acquired a certain degree of immunity. In criminal matters, the lieutenant-governor was frequently averse to sending prisoners for trial to Sydney, when such a course involved sending members of his scanty staff as witnesses. Commentary  by Fredk. Watson 20^th Dec 1920. (HRA III, I, p.818)

The Supreme Court

In 1819 a group of NSW colonists petitioned the British government for the reform of the criminal justice system and the introduction of trial by jury. Commissioner Bigge was despatched to investigate colonial conditions, particularly the judicial system. The reforms he advocated resulted in legislation introducing a new court system in both NSW and VDL. The 1823 Act for the Administration of Justice in New South Wales and Van Diemen’s Land established Supreme Courts in both jurisdictions. Tasmania has the oldest Supreme Court in Australia enacted on 7 May 1824 - seven days before NSW.^[15]

The Supreme Court was given authority over criminal matters as well as civil and equity matters. The first Chief Justice of the Supreme Court of VDL was Chief Justice John Pedder and the first Registrar of the Supreme Court, William Sorell.^[16]

In addition to sitting regularly in Hobart, the Supreme Court was empowered to organise circuit sittings (assizes) in other districts. However, between 1825 (when VDL achieved independence from NSW) and 1830 there were only three such sittings - all in Launceston. In Hobart widespread delays meant that many defendants often spent more time in gaol awaiting trial than the actual period of their sentences if they were convicted.^[17]

Furthermore, from 1826 to 1842, in an attempt to deter criminal behaviour, 203 criminals were sentenced to execution in VDL with some also facing additional penalties, such as gibbetting or dissection.^[18] Mary McLauchlan, the first woman executed in VDL, was sentenced both to death and dissection in 1830, having being convicted of infanticide after giving birth while imprisoned at the Cascades Female Factory.^[19]

The new Supreme Court process involved the establishment of criminal trials by jury, rather than by a military panel. Limited capacity for civilian jury trials who could try issues of fact in common law actions (civil suits) was introduced in VDL in 1830, although this was at the discretion of the judge. In 1834 civilian juries were established in the Supreme Court for civil cases, replacing the previous process where a Supreme Court judge heard a case with two assessors (often justices of the peace or lay magistrates).^[20] In some cases military juries could be replaced by twelve civilian jurors but military juries were finally abolished in 1841. There was no provision for a grand jury system under VDL legislation. In England, the grand jury was used to determine whether there was sufficient evidence to launch a prosecution against a potential defendant. Under VDL legislation this remained with the Attorneys General and the Crown Prosecutors despite frequently expressed concerns of potential bias and undue influence.^[21] Grand juries are not part of the legal system in Australia.^[22]

Chief Justice Pedder sat on the Supreme Court bench alone until a second judge Algernon Montagu was appointed in 1833. Both Pedder and Montagu’s judicial tenure was marred by a series of disputes with the Legislative Council and in 1854 Montagu was finally removed from office by the order of the Lieutenant-Governor. It was legally impossible to appoint locally trained judges in Tasmania until enabling legislation was passed in 1880. In 1885, Robert William Giblin became the first Tasmania born and locally trained lawyer to be appointed to the Supreme Court bench.^[23]

A third judge was not added to the Supreme Court bench in Tasmania until 1887, the main purpose being to create a Supreme Court of Appeal. The Full Court (the full bench of all judges appointed to the Supreme Court) was authorized to hear appeals of decisions made by the lower courts or the Supreme Court itself. Appeals heard by the Supreme Court initially related to points of interpretation of law, not to the jury’s findings about the facts of the case. From 1924, The Court of Appeal was empowered to hear matters of fact as well as law in Tasmania.^[24]

The Court of Quarter Sessions

In 1823 when the Court of Quarter Sessions was established in VDL, it was unclear whether the legislation intended to introduce civilian jury trials into the colonial courts and Chief Justice Pedder refused to entertain the notion that an ex-convict population should determine criminal matters. He decided that, until the Imperial Parliament stated otherwise, the Courts of Quarter Sessions in VDL would refrain from hearing criminal cases against free settlers, but would deliver summary justice to convicts.^[25] Unfortunately, this only increased the workload and pressure on the Supreme Court.

While the Court of Quarter Sessions had a critical role in the early legal system, particularly between 1824 and 1850, its operation proved problematic. Tasmania eventually abolished its intermediate courts and today remains the only Australian state without an intermediate court.^[26]

The Court of Petty Sessions

The Court of Petty Sessions continued to form the lowest tier of criminal justice in VDL. In 1821 there were eight honorary magistrates (or justices of the peace) on the island to adjudicate these lower court proceedings - four at Hobart Town and four at Port Dalrymple – all of which were unpaid positions. Due to the scattered population and distances involved, the court system was heavily reliant on these honorary magistrates and put the system under significant pressure.^[27]

In 1827, prompted by constant allegations of corruption within the magistracy, Governor George Arthur introduced a system of payment for police magistrates. He divided the island into nine police districts each under the charge of a paid magistrate (or stipendiary magistrate). These police magistrates were military men, appointed by the Governor, who owed their allegiance to the government and were more influential than the often ‘brutal and incompetent’ honorary justices. By 1837, there were fifteen police magistrates, who were still assisted by the honorary magistrates.^[28]

The Court of Petty Sessions continued to try low-level criminal offences until 1987, when this function was taken over by the Magistrates Court.^[29]

» Magistrates

The police magistrates dealt with both summary and committal matters and could issue a warrant or summons. Summary offences were minor transgressions for which the magistrate could impose penalties. Committal hearings however, dealt with more serious offences which could only be tried before a judge and jury in a higher court; the magistrate could only commit a defendant to a jury trial if he found that the defendant had a case to answer. Later their responsibilities could also included acting as Coroners and Commissioners of the Court of Requests.

Several visiting magistrates also operated across the state. They visited hiring depots, gaols and female factories to pass sentence on prisoners charged with major crimes within the convict establishments. Read more on the Visiting Magistrate's Report after a visit to the Brickfields Hiring Depot in 1844.

The following regulations were defined for the Visiting Magistrate in 'REGULATIONS OF THE PROBATIONARY ESTABLISHMENT FOR FEMALE CONVICTS IN VAN DIEMEN’S LAND' (July 1, 1845):

 Extract:

VISITING MAGISTRATE.

• —The probationary Establishment will be visited by this Magistrate at least twice in each week.
• —He will investigate all charges brought against the women, and award punishment, as sanctioned by law. In the discharge of this duty care will be taken to regulate the description and amount of punishment by the temper, disposition, and understanding of the offender. The description of punishment, which to one would be trifling, to another would be severe. Want of attention in inflicting punishment on this principle frequently renders it unequal and unjust.
• —A distinction is also to be drawn between offences: some in their nature are criminal, whilst others are mere breaches of discipline or of regulation; and it is not too much to expect that, under a strict system of personal superintendence on the part of the Officers, offences will not be frequent, and severe punishment seldom required.
• —Advice, admonition, and kindness, will in most cases be found effectual; but if these fail, and it should be found necessary to resort to punishment, extension of the allotted period of probation—or separate or solitary confinement—will, it is hoped, in most cases, be found sufficient.

M. FORSTER,

COMPTROLLER- GENERAL

 » Police Districts:

 Lieutenant-Governor George Arthur instigated the appointment of stipendiary district police magistrates and district courts in 1827, and the establishment of the field police in the Police Districts. 

Police Districts 1827:  Launceston;  Hobart Town divided into four police districts, formed by the intersection of Liverpool and Murray streets; and the interior divided into five police districts: New Norfolk, Oatlands, Campbell town, Norfolk Plains [Longford], and Richmond.

The interior of Van Dieman's land divided into five-police districts,and police magistrates appointed to each, viz, at New Norfolk, Oatlands, Campbell town, Norfolk Plains, and Richmond.

The Hobart Town Courier, Saturday 29 December 1827 - Page 4

The boundaries of the seven Police Districts were defined in 1830:

By His Excellency Colonel George Arthur,

Lieutenant Governor of the Island of Van Die

 men's land and its Dependencies.

A PROCLAMATION.

 

WHEREAS, by the Act or Ordinance intituled "An Act to institute Courts of Requests" it is enacted that courts of civil jurisdiction to be called courts of requests shall be holden within this island and its dependencies in and for the several and respective police districts of Hobart town, Launceston, New Norfolk, Oatlands, Campbell town, Richmond, and Norfolk plains, the extent and limits of such districts shall be defined and made public by a Proclamation to be issued for that purpose by His Excellency the Lieutenant Governor.

 

Now therefore, I the said Lieutenant Governor do by this Proclamation; by me for that purpose issued, define and proclaim the extent and limits of the said several police districts accordingly.

 

Police District of Hobart town contains all the country to the south-westward of the Derwent

below the Black Snake, including Bruné Island.

 

Police District of Launceston is bounded on the north by Bass's Straits on the east by the Rubicon and on the south by the Meander and South Esk as high as Ben-lomond Rivulet.

 

Police District of New Norfolk contains all the country westward of the Black Snake Rivulet and of the Jordan as high as the Donny Brook Rivulet at the Cross Marsh. This district being bounded on the north by a line from the Donny Brook Rivulet to the north boundary of Dr. Hood's grant on the Clyde, and thence by a line-to the Ouse at the Shannon Ravine.

 

Police District of Oatlands is bounded on the north by Stony Creek, on the east coast and thence by a line to the source of the Macquarie, and by that river to its confluence with the Blackman. By the Blackman and Millbrook, and thence by a west line. Bounded on the south by Richmond and New Norfolk districts and on the east by the sea.

 

Police District of Campbell Town is bounded on the south by Oatlands district, on the west by the Lake River, on the north by the South Esk and Ben-lomond Rivulet, and on the east by the sea.

 

Police District of Richmond contains all the country to the eastward of the Derwent below its

confluence with the Jordan, and to the eastward of the Jordan as high as the Quoin Rivulet at Whitfield's grant. This district being bounded on the north by the Little Swan Port River and a line by the Quoin Mount to the Quoin rivulet.

 

Police District of Norfolk Plains is bounded on the south by a portion of Oatlands district, on the east by the Lake River, and South Esk, (to the junction of the Meander), and by the Rubicon on the north by the Meander and Bass's Strait. The grants on the north bank of the South Esk from Mr. Cooke's north west boundary to Perth are included in this district.

 

Given under my hand and seal-at-arms at Government

House, Hobart town, this twenty-second day of April,

one thousand eight hundred and thirty.

GEORGE ARTHUR, Lieutenant Governor.

By His Excellency's Command,

1. BURNETT.

GOD SAVE THE KING !

 

 

The Hobart Town Courier, Saturday 24 April 1830 -Page 2

Soon after, two further Police Districts were added bringing the total to nine: Clyde and Oyster Bay.

In 1837, George Frankland, Surveyor-General, released a map with Police Districts detailing Police sub-districts:

South, Bothwell, Spring Bay, George Town, Westbury, Morven, Avoca, Waterloo Point, Hamilton, Brighton.

Police Districts Map 1837- Tasmanian Archives AF395-1-5.  Historic Plan 6 - map of the colony Van Diemens Land showing police districts by George Frankland, Surveyor-General. Printed April 1837.

Further Resources:

Offence Classes

The Prosecution Project: Other Courts

Bench of Magistrates Guide, State Archives NSW

Quarter Sessions Guide, State Archives NSW

Supreme Court Guide, State Archives NSW

Historical Notes: Administration and Law, Tasmanian Legislation

The Guide to Tasmania, by Hugh M. Hull: List of Magistrates in Van Diemen's Land/Tasmania up until 1858

http://classic.austlii.edu.au/au/journals/AUColLawMon/1858/1.pdf (document pages 16 - 21)

The Magistrates' Manual for the Colony of Victoria, printed 1852

http://classic.austlii.edu.au/au/journals/AUColLawMon/1852/1.pdf

Policing in a Penal Colony: Governor Arthur's Police System in Van Diemen's Land, 1826-1836 by Stefan Petrow

http://www.austlii.edu.au/au/cases/tas/TASSupC/
Records of decisions in superior courts of Tasmania, 1824-1924

http://www.austlii.edu.au/au/cases/tas/TASLawRp/
Tasmanian Law Reports, 1897-1940

http://www.austlii.edu.au/au/legis/tas/num_act/
Legislation passed in Tasmania since 1826

https://www.supremecourt.tas.gov.au/the-court/history/#:~:text=The%20Supreme%20Court%20of%20Tasmania,then%20Sovereign%2C%20King%20George%20IV.

References: