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2-185 (Original)

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addressee,male author,male,Dowling, C. J.,un
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Government English
Imperial Correspondence
Bennett, 1979
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I am of opinion, that the general jurisdiction of the Supreme Court should remain untouched, but that its strength should be increased by the addition of a fourth judge, who should have, and exercise the like powers as are conferred by the 9th Geo. IV Cap. 83, upon the other judges of the court. This addition appears to have been recommended by the late Governor, Sir Richard Bourke, and sanctioned by Her Majesty's Government. [75] Had it been intended, not to institute Circuit Courts, and not to provide for the due administration of justice at Port Phillip, as a dependency of New South Wales, I should have thought such an addition to the strength of the Supreme Court unnecessary; but, in the events contemplated, of instituting Circuit Courts, and making provisions for that new settlement, I am decidedly of opinion that such addition is necessary. By means thereof the Supreme Court would be enabled to hold more frequently than at present, criminal sessions to be holden in Sydney, for the trial of offences committed within the County of Cumberland, the most populous and thickly settled part of the colony. These sessions might be holden six times a year, or oftener, if necessary to keep the gaols of the county clear. For this duty the judges by arrangement amongst themselves, might take their turn in like manner, as is now adopted, in practice, in the ordinary criminal sessions of the Supreme Court; or, the duty might be assigned chiefly to one, as exigencies, or experience, might from time to time point out. I would propose that the proper residence of all the four judges should be in Sydney, except when absent on judicial duty in the provinces or dependencies. I object on principle to the fixed residence of the judge in any of the provinces or dependencies, on two main grounds, first the tendency of local attachments and prejudices to fetter the judge in the discharge of his duties, a vital incident of which is unshackled independence of mind, and freedom from external influence; and secondly, the tendency to be feared, of a want of uniformity with the decisions in different tribunals, upon similar questions; these disadvantages would be guarded against by a course of rotation of duty, amongst the four judges, who, in their turn might act in the provinces with freshness of mind, and be possessed of the knowledge of business, and the combined experience of the college, (if I may so express myself) of which he is a constituent member. By the adoption of this measure, I am now of opinion, that there would be no necessity for the institution, as in my former letter I had suggested, of a Recorder's Court for Sydney and the County of Cumberland; a court, which, upon reflection, I think would not be so satisfactory to the public mind, as a court held by one of the Judges of the Supreme Court, who would have the advantage of ready access to, and conference with his brother judges, in cases of doubt and difficulty, arising in the course of judicial duty. By reason of the frequent sittings of the criminal session of the Supreme Court, thus proposed, the Court of Quarter Sessions might be greatly relieved of the heavy cases, often brought within its cognizance, by a partial transfer of them occasionally to the superior tribunal.
With respect to the form and manner of proceeding in the Supreme Court, I am of opinion that the institution of the Grand and Petty Jury system in the administration of criminal law, should be adopted, constituting such gentlemen as are now eligible as special jurors, to be qualified to act as grand jurymen, both in Sydney, and on circuits.
I would also recommend that the trial in the Supreme Court of civil issues of fact, should in all cases in Sydney, and in the Circuit Courts, be determined by a jury of twelve inhabitants, instead of by a judge, and two assessors, as now in practice.
I do not recommend any alteration in the judicial establishment, for the administration of the Equitable Jurisdiction of the Supreme Court, inasmuch as it would involve considerable additional expence in the creation of new ministerial officers, and would not be satisfactory to the public. [76] I would still leave to all the Judges of the Supreme Court, the Equitable Jurisdiction now inherent in the court, the duty of presiding in the Equity Court to devolve upon any one judge, as at present, by arrangement amongst themselves, giving to the suitors the power, as now exercised, of appealing to the Full Court from the decision of the single judge. If the office of Equity Judge were instituted, without any right of appeal, and he were called upon to confine himself exclusively to this branch of jurisdiction, the public might sustain injury in the event of illness, absence, incapacity, or other causes, of the judge devoting himself exclusively to equity business, by which, whilst on the one hand, he could not relieve his brethren, nor on the other, be relieved by them. The advantage of an appeal by this arrangement, will then be greater to the suitors, than at present, for there will then be a right of reference to three new minds, instead of two, under the present constitution. An appeal of this kind, will not only prevent dissatisfaction to the suitors, but probably prevent appeals to England.
In order to relieve the present able and intelligent Chief Clerk from much of the labour now devolved upon him, as Acting Master, both in Equity and at Common Law, I would recommend that the judge's clerks should be called upon, to discharge for each of the judges, when sitting alone in Sydney, or on circuits respectively, the duties of Clerk of Arraigns, Associate, and Marshal, and that for such purposes, they should be deemed Clerks of the Supreme Court, and be subordinate to the Chief Clerk. To these officers I would give an addition to their present salaries of £100 per annum, in consideration of the additional duties which would he thus cast upon them. By this arrangement the new appointment of a Master in Chancery would become unnecessary, for it would relieve the Chief Clerk of all court duty, and enable him to pay more attention to the higher functions of his office.
The Act of the Legislative Council by which the proposed alteration, in the constitution of the Supreme Court should be effected, ought to contain a power enabling the judges to introduce into the practice of the court, all the various improvements now in force in the courts at Westminster by Act of Parliament, relating to pleadings both at Law and in Equity.
This Act should confer upon His Excellency the Governor the power of nominating the fourth judge, until the pleasure of the Crown should be made known.