The Commission of the first Judge Advocate David Collins, dated 24 October 1786 appointed him Deputy Judge Advocate in the Settlement within our Territory called New South Wales. He also had a warrant dated 1 January 1787 as Judge Advocate to the Detachment of His Majesty’s Marine Forces ordered to proceed to Botany Bay. Both the Act 27 Geo. III, c. 2 and the Letter of Patent dated 2 April 1787 used the term Judge Advocate.
The original courts were created under the authority of a Royal Commission and Royal Letters Patent given to Governor Phillip. These Courts were the Criminal, Civil, and Court of Appeal. The Criminal Court consisted of the Judge Advocate and six military or naval officers appointed by the Governor for each court separately. The Civil Court consisted of a Judge Advocate and two inhabitants of the colony. In the Court of Appeal the Governor was the sole Judge with the Judge Advocate only playing an advisory role. The Magistrate’s Court consisted of the Judge Advocate and one magistrate. This Court dealt with minor criminal offences, and civil cases where the amount involved did not exceed £ 10.
The Royal Letters of Patent also appointed the Judge Advocate along with the Governor, and Lieutenant Governor as Justices of the Peace. This role involved the power to keep the peace for the territory of New South Wales by being able arrest, take bail, bind to good behaviour, suppress and punish riots. The position of the Judge Advocate was in one sense 'quasi-military': his Commission subjected him to the Orders and Directions of the Governor and, before 1809, added the rider according to the Rules and Discipline of war. (3)
The Judge Advocate in England played an important role in courts Martials, advising the court on questions of law, and, in colonial times also acting as a prosecutor. However, the Judge Advocate had no voice in determining the finding of the Court. Departing from this practice, the Judge Advocate in the Criminal Court of New South Wales presided and had a vote in the judgement of the Court. The Judge Advocate used to retire with the other members of the Criminal Court to consider the verdict. After 1820 Sir John Wylde, Deputy Judge Advocate of New South Wales (1816-1824) changed the practice and charged the military members of Court as if they were a jury. (4)
Deputy Judge Advocate Ellis Bent described the Judge Advocate as the President of the Criminal Court whose duties included (5) -
* examination of depositions
* preparation of trial information
* causing the necessary witnesses to be summoned
* exhibiting the trial information to court
* conducting and make minutes of the trial and take down evidence
* making observations to the other members of the Court
* pronouncing the judgement of the Court
* making up the record of conviction or acquittal of prisoners
* taking charge of all the Court records
Letters Patent dated February 4, 1814, created the Supreme Court of Civil Judicature, which had civil, equitable, and ecclesiastical jurisdiction. This Court consisted of a Judge and two inhabitants. The same Letters Patent created the -
* High Court of Appeal, which consisted of the Governor, with the Judge-Advocate as assessor
* Governor’s Court, which consisted of the Judge Advocate and two inhabitants (magistrates).
The Criminal Court was left untouched.
By 1814 differing views on the status of the judiciary and its relation to the executive had estranged the Governor from the Judge Advocate. Ellis Bent as Judge Advocate was to support his brother Jeffrey Bent (Judge of the Supreme Court from 12 August 1814) in a bitter dispute with Governor Macquarie. Justice Jeffrey Bent refused to sit in the presence of emancipist attorneys and adjourned the Supreme Court. Ellis Bent copied his brother’s action in the Governor’s Court. He also declined to enforce new port regulations declaring them illegal. Both brothers Bent and Governor Macquarie appealed to England. For nearly two years both Civil Courts in the Colony were closed. No action, large or small could be tried. In April 1816 Lord Bathurst censured all concerned and terminated the appointments of the Bents as Judge Advocate and Supreme Court Judge. However, Ellis Bent had died, on 10 November 1815, long before these instructions came. (6)
The office of the Judge Advocate was abolished in the Letters Patent pursuant to the New South Wales Act, 1823 ( 4 Geo. IV, c.96) (also known as "the Third Charter of Justice" or "the Third Charter"). (7). This Charter was formally promulgated on 17 May 1824. (8)
(1) Windeyer W. J. V., Lectures on Legal History, Second Edition, The Law Book Company, Sydney, 1957, (reprinted 1974), p. 310.
(2) Golder, Hilary, High and Responsible Office: A History of the New South Wales Magistracy, Sydney University Press, Sydney 1991, p. 2 & 7.
(3) Warrant for the Charter of Justice, Historical Records of Australia, 2 April 1787, Series IV, Vol. 1, pp. 6-8.
(4) Windeyer W. J. V., op. cit. p. 301.
(5) Deputy Judge Advocate Ellis Bent to the Earl of Liverpool, Historical Records of Australia, 19 October 1811, Series IV, Vol. 1, p. 58.
(6) Ritchie, John, Lachlan Macquarie: A Biography, Melbourne University Press, Carlton Victoria, 1986, pp. 145-147.
(7) Windeyer W. J. V., Lectures on Legal History, Second Edition, The Law Book Company, Sydney, 1957, (reprinted 1974), p. 310.
(8) Promulgation of the Third Charter Justice 17 May 1824 Historical Records of Australia, Series I, Volume XI, p. 302.
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