Summary of 'The history of trial by jury in NSW'
The 2002 Francis Forbes Lecture
Delivered by Ian Barker QC

The settlement of New South Wales was a political solution to a social problem caused by the loss of the American colonies, fear of insurrection, a high rate of crimes such as highway robbery and burglary, the fear of the outbreak of diseases in convicts consigned to the overcrowded hulks and the manifest failure of the hulks as prisons, together with the perhaps altruistic belief that transportation would ultimately enure to the benefit of the convict transported, in the next life if not during life on earth.

The penal colony was at first ruled by governors who were necessarily dictators, and whose edicts were enforced by the military. The Governor had very great power. He decided times of religious observance, rights of assembly and publication, whether people could marry, whether a man was sane or not, how much men should drink, how much those victualled by the government should eat, and what should be taught in schools. He could pardon, grant tickets of leave and grant land. The extent of his powers was uncertain because of the difficulty in distinguishing between executive acts and those legislative in character.

For the convicts it was a prison. Punishments were harsh. For offences not capital, the commonest was flogging. Refinements such as being nailed by one's ears to the pillory, burning on the hand, starvation diets and being chained in close confinement were not uncommon.

A criminal 'court' had all the trappings of a military court martial. There was no judge, but a judge advocate. The first two judge advocates were not lawyers. There was no jury, but a tribunal of military officers. There was no grand jury to consider in the first place whether there was a case. The judge advocate was both prosecutor and one of the decision makers.

The deep social divisions in New South Wales in the early nineteenth century were serious impediments to the establishing of a fair legal system which included trial by jury. Even if the first free settlers did bring with them the right of trial by jury it served no practical purpose for there was no place for a jury in a convict settlement.

Until 1833 there were no jury trials in the Supreme Court in criminal cases because they were legally proscribed. The jury system was not complete in criminal cases until 1839 and in civil cases until 1844.

In his address, 'The history of trial by jury in New South Wales', Ian Barker QC will deliver a fascinating analysis of the way in which a penal colony, governed by the military, and with deep social divisions, was able to implement a system of trial by jury and gradually broaden eligibility for jury service.

Barker QC concludes with an overview of more recent legislation that has served to gradually restrict the right of an accused to a trial by jury. He warns that this important protection of a civil rights is increasingly denied to citizens accused of all but the most serious of crimes and calls for trial by jury to be protected.

Back to Forbes Society homepage