2-367 (Original)

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(a) Court of Quarter Sessions Act, 1832 (2 Will. IV No. 4)
Whereas, a Court of Quarter Sessions of the Peace, has for some time past, by virtue of a Commission of the Peace issued by His Excellency the Governor of this colony, existed, and acted within the same. And whereas, it is necessary to extend the jurisdiction of the said court, (being the only criminal court in the said colony) to certain offences of which by the custom of England, such courts do not generally take cognizance, and also to regulate the proceedings of the said court in certain cases hereinafter specified. [218]
1. Be it therefore enacted, by His Excellency the Governor of Western Australia, and its dependencies, with the advice of the Legislative Council, that from and after the passing of this Act, the Court of General Quarter Sessions of the Peace, for the said colony, shall have power to hear and determine all felonies whatsoever, whether capital or otherwise, including forgery, and perjury at common law, and all misdemeanours whatsoever, in whatever part of the said colony or its dependencies, such felonies or misdemeanours shall have been committed, and whether the same shall have been committed before, or after the passing of this Act. Provided, that nothing herein contained, shall be construed to give the said court jurisdiction over any offence which, by the laws of England, is exclusively cognizable by Courts of Admiralty, or Ecclesiastical Jurisdiction.
2. And be it further enacted, that with the exception of alterations introduced by this Act, the powers and authorities, the mode of proceeding in the trial of all crimes, and misdemeanours, the forms, rules, and regulations, and the ministerial officers of the said court, shall be the same as in Courts of Quarter Sessions of the Peace in England, so far as the circumstances, and situation for the time being of the said colony shall admit.
3. And be it further enacted, that the sessions of the said court, shall be held at such times and places, as the said Governor shall, from time to time appoint by proclamation; and that in the mean time, until any such proclamation to the contrary, the same shall be held at the times and places, at which the same have hitherto been held.
4. Provided always, and be it further enacted, that the said court shall not proceed to the trial of any person charged with an offence punishable with death, unless three magistrates at least, shall be present, who shall also remain present, during the whole time of such trial.
5. And be it further enacted, that no sentence of death, passed by the said court, shall be carried into execution, until the same shall have been first reported by the chairman of the said court to the said Governor, and until the said Governor shall issue a warrant under his hand, and the public seal of the said colony, directing the Sheriff of the said colony, to cause such sentence to be carried into execution.
6. And be it further enacted, that no sentence of transportation beyond seas, passed by the said court, shall appoint the place to which the offender so sentenced shall be transported; but that such place shall be left to the appointment of the said Governor, by proclamation, or by warrant, under his hand, and the public seal of the said colony.
7. And be if further enacted, that the Clerk of the Peace for the said colony, shall keep a book . . . which shall be called, "The criminal record book."
8. And be it further enacted, that an abstract of the said criminal record book, certified to be correct by the chairman of the said court, shall be by him, submitted to the Governor, and Executive Council, as soon as conveniently may be, after each Quarter Sessions. [219]
9. And be it further enacted, that it shall be lawful for the said Governor, by warrant under his hand, and the public seal of the said colony, to appoint a fit and proper person, to be Chairman of the said Court, and some other fit and proper person, to be Clerk of the Peace for the said colony. And as well the said chairman, as the said Clerk of the Peace, to remove, and discharge, by order in writing, on account of any misfeasance, or nonfeasance.
(b) Justices of the Peace Ordinance, 1845 (9 Vic. No. 4)
Whereas it is expedient to constitute Local Courts for the trial of certain criminal offences at Albany and other remote districts of this colony, so as to avoid the great expense and inconvenience either of bringing the prosecutors, witnesses and prisoners from so great a distance to Perth for trial, or sending the Chairman (who is also the Commissioner of the Civil Court), the Advocate-General and the officers of the Court of Quarter Sessions to so great a distance from Perth to the serious interruption of public business: Be it therefore enacted by His Excellency the Governor of Western Australia, with the advice and consent of the Legislative Council thereof: That Courts of General Sessions of the Peace for the various districts of this colony may be holden under and by virtue of the provisions of this Ordinance, at such times and in such places as the Governor shall by proclamation from time to time appoint: Provided that such courts may be appointed to be held more or less frequently than four times a year, as convenience may require, and that each of such courts shall have power to adjourn its sittings from time to time if necessary.
2. And be it enacted that the said Courts of General Sessions of the Peace so appointed for such districts shall be Courts of Record, and shall be held before any two or more Justices of the Peace of the said colony, whereof the Chairman or Deputy-Chairman, as hereinafter mentioned, shall be one, and shall have power to hear and determine all felonies whatsoever not punishable with death, including forgery and perjury at common law and all other misdemeanours whatsoever committed in any part of the said colony, and whether the same shall have been committed before or after the passing of this Ordinance, and all such appeals and other matters and things as may be assigned to General or Quarter Sessions of the Peace by any Ordinance heretofore or hereinafter to be passed: Provided that nothing herein contained shall be construed to give the said courts jurisdiction over any offence which by the laws of England is exclusively cognizable by Courts of Admiralty.
3. And be it enacted that it shall be lawful for the Governor from time to time to nominate and appoint during pleasure any Justice of the Peace to be Chairman of any such courts: Provided that in order to provide for the case of the illness, temporary incapacity or absence from the colony of the Chairman of such court, the Governor may appoint any other Justice to be Deputy-Chairman of such court, who, during such illness, temporary incapacity or absence, and no longer shall be deemed and taken to be the Chairman of such court for the time being to all intents and purposes:
Provided also that in case of sickness or unavoidable absence the acting Chairman shall be empowered, under his hand and seal, to appoint a Deputy-Chairman, being a Justice of the Peace, to act for him at the Court of General Quarter Sessions of the Peace for the district then next ensuing, and no longer or otherwise.
4. And be it enacted that it shall be lawful for the Governor from time to time to nominate and appoint clerks and all ministerial and other proper officers of the said courts and the same at any time to remove and appoint others, and in case of the absence of any such officer from any sitting the Chairman for the time being may appoint some fit and proper person to act in his stead at such sitting.
5. And be it enacted that if in any case the required number of justices shall not be present at the time and place appointed for the holding of any such court, any one justice (whether he be the Chairman or not) shall be a lawfully constituted court for the purpose of opening such court and of adjourning the same, and respiting all recognizances until such further day as such justice shall then and there cause to be proclaimed.
6. And be it enacted that with the exception of alterations introduced by this or any subsequent Ordinance, the powers and authorities, the mode of proceeding in the trial of all crimes and misdemeanours, the forms, rules and regulations of any court established under this Ordinance in any particular district shall be the same as in the Court of General Sessions of the Peace for the said colony (usually held in Perth), as far as the circumstances and the situation for the time being of the district shall admit.
7. And be it enacted that no sentence of transportation beyond seas passed by such court shall appoint the place to which the offender so sentenced shall be transported, but that such place shall be left to the appointment of the Governor.
8. Provided always and be it enacted that whensoever it shall appear that any crime or offence, from its nature or magnitude, ought to be tried by the Court of General Quarter Sessions of the Peace for the colony it shall be lawful for any court so appointed for any such district as aforesaid to remit such case for trial before the Court of General Quarter Sessions, and to take proper recognizances for the appearance of all parties and witnesses thereat, which recognizances shall be returned to the said Court of General Quarter Sessions aforesaid at the next sitting thereof. .
(c) Judicial Interpretation of the 1845 Act
Hensman, J. This is a rule for a prohibition which has been applied for directed to J. A. Wright, Esquire, of Albany, and one O'Donohue, to prevent them from further proceeding with an order made by the Court of Quarter Sessions at Albany recently. It appears that the applicant, Beasley, was prosecuted before the Justices in Petty Sessions for an offence against some recent Act, with the result that he was ordered to keep the peace for some time, and to pay a certain sum for costs. Beasley appealed to the Court of Quarter Sessions  -  as he was entitled to do  -  and that court, which was attended by solicitors or counsel on both sides, was composed of Mr. Wright in the chair. No objection was taken at that time to that constitution of the court by either counsel, and Mr. Wright confirmed the order which he had previously made, and ordered Beasley to pay the costs of the appeal. A few days afterwards, steps were taken to apply for a prohibition. Other grounds were mentioned, to which it is not necessary to refer, but the main ground, upon which we are now about to give our decision was that the court was improperly constituted and that it was necessary, in order to constitute a Court of Quarter Sessions, that there should be a chairman, and at least one other Justice of the Peace. [221] The case depends upon two statutes. The first is the 9 Victoria, No. 4  -  an Act to make provision for the trial of criminal offences at Albany and other remote districts of the State. It in effect constitutes Courts of Quarter Sessions, and it says that the courts so appointed shall be courts of record, and shall be held before any two or more Justices of the Peace of the State, whereof the chairman or deputy chairman, as thereinafter mentioned, shall be one, and shall have power to hear appeals and other matters. Then it goes on to say that the Governor may nominate any Justice of the Peace to be chairman. Further it is enacted that in any case in which the required number of Justices is not present, any one Justice, whether he be chairman or not, shall be constituted the court for the purpose of adjourning it. If that statute stood alone, it must be obvious that, there should be a chairman and one other Justice of the Peace at least, in order to constitute a Court of Quarter Sessions. But reliance has been placed by counsel on a later Act  -  the 27 Victoria No. 17, intituled, "An Ordinance to extend the jurisdiction of the Police and Resident Magistrates." That enacts that it shall be lawful for any Police or Resident Magistrate to do any act directed to be done by more than one Justice of the Peace. But then occurs a proviso that no such Police or Resident Magistrate shall be competent to act alone in anything required to be done by Courts of Petty Sessions or any general Sessions of Justices of the Peace. It appears to me quite clear that that Act, when it gave a Resident or Police Magistrate power to do what otherwise should be done by two Justices of the Peace, intended specially to except the Courts of Quarter Sessions. In point of fact, the chairman of Quarter Sessions is not necessarily a Resident or Police Magistrate. It is open to the Governor to appoint any Justice of the Peace to be the chairman of the Quarter Sessions, and, probably, it is the fact that Quarter Sessions are held at places where there are not Resident or Police Magistrates. However, be that as it may, I am clearly of opinion that the Court of Quarter Sessions on this occasion was wrongly constituted, and in other words, that the case was coram non judice.
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