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2-187 (Original)

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addressee,male author,male,Burton, E.S., Chief Justice,un
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Government English
Imperial Correspondence
Bennett, 1979
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Courts of Quarter Sessions have been established, having the summary jurisdiction thus authorized, and also the general jurisdiction exercised by Courts of Quarter Sessions in England in criminal cases and holding their sessions at eight places within the colony viz. Sydney, Parramatta, Campbell Town, Windsor, Liverpool, Penrith, Maitland and Bathurst.
In the exercise of their summary jurisdiction, the courts try without the intervention of a jury, and sentence to corporal punishment, and to various terms of imprisonment with or without hard labour, and transportation extending to life, to penal settlements, for all offences not punishable by death. That the courts should have cognizance of all such offences, I do not dispute; but I would suggest the propriety of restricting the measure of punishment to be inflicted by them on a summary proceeding; which should not exceed three years - imprisonment with hard labour in an ironed gang, or seven years transportation; which would leave offences of such a character as to demand a higher measure of punishment to be tried by a jury. 
25. The Acts of Council tenth George the Fourth number seven third Victoria number ten and sixteenth Victoria number thirty-six so far as they relate to the election nomination and appointment of a Chairman of Quarter Sessions shall be repealed and it shall be lawful for the Governor with the advice of the Executive Council by commission to appoint the Judge of any District Court to be the Chairman of any Court of General or of Quarter Sessions to be holden within the limits of the District for which he shall have been appointed and every such Chairman shall be the sole judge at the trial of all criminal issues in such courts and in all matters relating to any information filed therein for any felony or misdemeanor and all such Courts of General and Quarter Sessions shall possess jurisdiction in respect of all crimes and misdemeanors not punishable with death anything in any law or statute to the contrary notwithstanding. [108]
Although he is equally termed a chairman in the District Courts Act, sect. 25, the judge's functions and authority differ considerably from those of a Quarter Sessions chairman; for the latter is only the presiding justice, among two or more justices - whereas the former, in criminal cases at least, is the sole judge; constituting, therefore, in effect, the court itself. At the trial of any criminal issue, consequently, the justices have literally no jurisdiction. So that as to such cases the effect of holding the 4th section of the 16th Vic. to be still in force would be virtually, to change the constitution of the court for the particular occasion, to re-vest in the justices their ousted authority, by the mere act of their choosing a chairman for themselves, in the judge's absence; and thus, although temporarily only, to set up again a tribunal for the trial of prisoners, which the legislature unquestionably intended for that purpose practically to abolish. [...]
The circumstances of the colony are now such that either separate Commissioners must be appointed to several Courts of Requests in different parts of the colony, or else some other provision must be made for the determination in a summary way of the subject matters of the jurisdiction of these courts.
At present one Commissioner who is a barrister of considerable standing performs the whole duty of the several Courts of Requests throughout the colony performing circuits for that purpose. He complains, however, and with reason, of the increased and laborious duties of his office, and represents correctly "that notwithstanding the considerable increase in the number of places in which courts are now to be holden, that increase by no means satisfies the present exigencies of the colony". He recommends "to satisfy the public exigencies of the community that the duties of the court in which he presides be restricted to Sydney and the County of Cumberland, and that Courts of Requests be established in every district without the County of Cumberland, in which a Police Magistrate is stationed".
In his views to this extent, the judges [have] expressed their concurrence. But as to the mode in which the Commissioner proposed to meet the exigency they did not concur; nor is it possible for me to express my individual concurrence. He proposes in short to attach a Court of Requests jurisdiction to the several Police Magistrates throughout the territory: a measure which I feel assured the Commissioner could only have recommended from an opinion that its recovery in a pecuniary point of view, might lead to its adoption, whilst a system causing any considerable addition of expense would not be entertained. [109]
The legal acquirements of the present Commissioner are such as to have caused the performance of his very laborious and useful duties to be most satisfactory to the judges and to the public: and I cannot recommend that the administration of justice, even in the Courts of Requests should be committed to persons less skilled in the law. Although the hearing and determination of cases in the Courts of Requests is summary, yet for the determination of questions which daily arise, legal knowledge is as necessary as in the higher courts; the same law is to be administered in both; and the same questions may arise, although in the one case to be determined summarily, and without appeal; from which if any argument can be raised, it would appear to me to be more in favour of the Commissioner being a person possessing competent legal knowledge than the other way.
Respecting the several Police Magistrates throughout the territory I would express myself of them with all proper respect; but I must at the same time unequivocally deny their competency to act as Commissioners of Courts of Requests.
I admit however that the mere jurisdiction of a petty civil debt court would not give occupation to the Commissioner in any place; and I so far agree with the Commissioner's principle as to be of opinion that it is only by uniting a criminal and civil jurisdiction in one person, that the provision for both can be effectively or economically provided for. But if an arrangement could be made in which these should be united, then ample employment could be found for an effective magistrate in several districts of the colony, in which it is now necessary to hold both Courts of Quarter Sessions and Courts of Requests.
Neither the Courts of Quarter Sessions nor Courts of Requests as at present constituted, being ambulatory, possess the same advantages in the administration of justice as a stationary District Court would possess, having a criminal and civil jurisdiction united. The union of the Chairmanship of the Quarter Sessions with the Commissionership of the Court of Requests, would be a considerable improvement upon the present system; and the most economical which could be devised; since it would afford full employment for a gentleman of adequate legal knowledge; and would afford an adequate remuneration being attached to the office: it must be wanting however in the advantages of a stationary court. And I think that a court constituted similarly to the Courts of Resident Magistrates at the Cape of Good Hope, in which a criminal and civil jurisdiction are united, would be found more beneficial.