Page:History of New South Wales from the records, Volume 1.djvu/511

THE CRIMINAL LAW, 39? answered^ and no evidence allowed to go to tke jtuy^ 1788-1838 which was not technicallj admissible according to the reported ralings of the judges. But in the Judge- Advo- cate's Court that principle was altogether ignored, because the judge, not being a lawyer, could not know anything about the law of evidence. There was consequently no means either of checking the admission of evidence which would have been held inadmissible in England, or of pre- senting it to the jury in such a shape as would have veidicta by enabled them to discriminate between truth and falsehood, thumb. to gauge the credit of a witness, and to arrive at their conclusion by some better process than that of mere con- jecture. There was a still more characteristic principle which was not recognised in this Court. The law of England abhorred secresy in the administration of justice, and the most essential of all features in a trial was that it should be Trials in public. The accused was entitled to hear every word that pufuo, was alleged against him in evidence, or urged against him either in the addresses of counsel or the remarks of the judge. But in the Military Court the Judge- Advocate and the other members " retired to an adjoining room, when the evidence was closed, in order that they might discuss the various questions of law and fact that had arisen during notpubuc the hearing of the case. Neither the prisoner nor the colony, public knew anything of what passed while the discussion was going on^ and consequently there was no opportunity for correcting mistakes or removing misapprehensions. The practice on these occasions is described in Bigge's Beport as follows, p. 13 : — The members had here an opportunity of discussing the ques- Pnutioe tions that had arisen, of hearing the opinion of the Judge- Advocate, and of deciding upon their verdict and sentence. Upon their return to the Court, the Judge-Advocate resumed the open consideration of the case, made reference to the questions of law and fact that had already been decided by the Court, and in doing this he somethnes read the evidence from his notes. Digitized by Google