The criminal trials accessed for this project are in the first place those of the Supreme Court, as recorded in the registers maintained by the respective courts. In some cases (especially Western Australia before 1861) these registers contain a record of trial going back to the earliest days of European settlement and these have been accessed for this project. The records are supplemented by press reports of offences and trials (primarily accessed through the NLA Trove database of digitised newspapers) and by archival records.
The Australian criminal law jurisdictions
Although Australia is a federation, most criminal law matters are the responsibility of the States. The States and their colonial predecessors have administered the criminal law under the Supreme Court of each jurisdiction. The highest court in each State jurisdiction is the Supreme Court. The Supreme Court has original jurisdiction (it can adjudicate criminal cases) and can hear appeals from the decisions of lower courts. After 1901 appeals from a Supreme Court decisions could be made to the High Court of Australia. Until 1975 appeals could be made from decisions of the High Court of Australia to the Privy Council in the United Kingdom, as had been the case in the nineteenth century.
A variety of courts have developed over time to hear criminal cases. Courts of ‘Quarter Sessions’ (held at the beginning of each quarter, January, April, July, October) were common in nineteenth century Australia, replaced as urban centres grew by Courts of General Sessions meeting more frequently. As in England and Ireland, the Supreme Court judges also went on ‘circuit’ at regular intervals to hear cases in the larger towns outside capital cities. While criminal statutes might vary from colony to colony and State to State, the criminal trial process itself showed little variation. Criminal trials in Australia were conducted from the earliest times generally by Crown or public prosecutors. Persons arrested for offences were typically brought before a Court of Petty Sessions, over which presided one or more magistrates or justices of the peace.
The magistrate at the ‘committal hearing’ decided whether the evidence presented by prosecutors (most commonly the police) justified committing the accused to trial before judge and jury at a Quarter Sessions, General Sessions, District or Supreme Court. Accused who pleaded guilty to the charge at a committal hearing surrendered their right to a trial by jury and were later sentenced by a judge of the Supreme Court. To a degree which is yet unknown the accused might be defended by a lawyer.
In the ‘free’ colonies of Swan River (Western Australia) and South Australia, criminal trials were held from the earliest days before juries of local settlers. A struggle for ‘trial by jury’ was an important element of the development of political life in the convict colonies, especially of New South Wales and Van Dieman’s Land (Tasmania).
The six State Supreme Courts were established during the colonial period.
|State||Supreme Court Established|
|New South Wales||1824|