Australian Access Federation

You are here: Home Corpora Corpus of Oz Early English 2-360 (Original)

2-360 (Original)

Item metadata
author,male,Stephen, Alfred,48 addressee,male
Word Count :
Plaint Text :
Government English
Imperial Correspondence
Bennett, 1979
Document metadata

2-360.txt — 5 KB

File contents

Within the last few days an Act of Council had come into operation, which was of more importance, as affecting the administration of justice, than any other statute passed by the Colonial Legislature. His object, he said, in mentioning this Act, and in alluding briefly to a few of its leading features, was to direct to it the attention of the public, and particularly of magistrates, to whom a knowledge of its provisions was absolutely necessary. This Act, the 14th Victoria, No. 43, had been passed on the 2nd of October last, and had come into operation on Monday last. By the Act itself, and by three British statutes which were adopted by and embodied in it, the duties of a Justice of the Peace, both in and out of sessions, were clearly defined; and while the magistrates were protected from all vexatious actions, there were means provided by which all those who were affected by magisterial proceedings could protect themselves against error or injustice, by resorting to a most simple and inexpensive proceeding of a summary nature, by which the intervention of the Supreme Court would be obviated. The second clause of the Act of Council directed, that as soon as possible after the termination of every case, the depositions shall be transmitted by the committing magistrate to the office of the Attorney-General. This had been hitherto the usual, although not the invariable practice, but there had not, until the present time, been any legal enactment to enforce it. The third clause provided, that all prisoners should be entitled to copies of the depositions when committed or held to bail by a justice or a coroner, and to copies of examination or cross-examination, upon paying a certain rate per folio. The ninth clause gave to the Supreme Court a power of correcting all errors in point of form or mistakes not affecting the substantial merits of the case, and prohibited the discharge of a prisoner by Habeas Corpus, for any cause of this nature. [106] As a counterbalance to this provision, however, the twelfth clause gave a summary and a simple means of relief in cases of erroneous orders or convictions. An inexpensive application to the Supreme Court or to a judge of that tribunal, was the means provided for this purpose. The effect of these changes in the law, in point of fact, was to put an end to all opportunities of deriving advantage from mere technical objections and quibbles, and to ensure the administration of justice according to the plain facts and merits of each case. The first point which was defined in the embodied Acts of Parliament was the power and duties of the magistrate as to the issue of a summons or a warrant, and forms were given for all cases of this kind. The eighth clause defined the cases in which it was necessary the original information should be taken on oath or affirmation, and in which mere parol and unsworn testimony or complaint without writing would be sufficient. It also provided that no objection as to want of form should be of any force in such cases. The whole course of proceedings in these cases was distinctly laid down so clearly as to render any error almost impossible. When there was any variance which, in the opinions of the justices, might have misled the party charged, a power was given to them to remand the case until the defect could be remedied. Powers for compelling the attendance of witnesses, and for summarily punishing any person who might refuse to be examined, were also given. The seventeenth section of the same Act would change very materially the mode of taking depositions. 
It had been the practice hitherto to have only what was considered the substance of a witness's evidence, or a prisoner's statement reduced to writing; but this clause rendered it compulsory upon the Magistrate to have the whole of the evidence taken down, and in the first person. It was not, of course, meant that all which was said on such occasions should be placed in writing, but all that was pertinent to the case should be recorded upon the depositions, and that in the very terms used. The judges had, indeed, entertained very considerable doubts whether the statements and admissions of a prisoner were even admissible at all as a matter of evidence, unless they had been written down in the first person, and in the very terms used, no matter whether the latter were clear and intelligible or not. A power was given to the justices to sit with closed doors in cases where they were acting ministerially, and where they conceived that the ends of justice would be furthered by this course; but whenever they acted judicially, the place where they sat was to be deemed an open Court, and defendants were to be allowed to avail themselves of the advocacy of a barrister or attorney if they thought fit. Power was given to a justice to remand upon warrant, and to admit to bail even after committal.. Full directions were given as to proceedings under the powers of summary jurisdiction possessed by the justices, and it was optional with them to adopt the forms of conviction given by this new Act in preference to those provided by other statutes by which they possessed these powers. Directions and forms of every nature, indeed, were contained in this Act so plain, that it was almost impossible to err. The magistrate had beside, a power of appealing to the Supreme Court for an expression of its opinion upon any point whereon he entertained a doubt. He might stay the progress of the case until he obtained this opinion, and provided that he acted upon it, he was not liable to any action. A gentleman of the legal profession, thoroughly competent to the task, was about, he understood, to prepare a synopsis of these enactments; [107] and he hoped when this was done, that not only every member of the profession, and every magistrate, but every constable, would procure a copy, as it was important that the knowledge of their provisions should be widely diffused.