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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Reilley [1828] NSWSupC 95

burglary, jury, dispute among, trial by jury, death recorded

Supreme Court of New South Wales

Forbes C.J., 18 November 1828

Source: Australian, 21 November 1828


At ten o'clock, this morning the Court was opened in form, Mr. Chief Justice Forbes taking his seat upon the Bench.  A report was buzzed about that no precept had issued for empannelling a Jury, as his Excellency the Governor was amongst the locations up-country.  The names of several military gentlemen[1 ] were called over, but the prescribed number seven being wanting, the Court was incomplete, and could not proceed to business.  After waiting employed in doing no part of that for which the Court had assembled, at length, in about an hour's time, the requisite number of Jurymen, holding commissions under his Majesty, appeared in the jury-box.  Nothing now seemed to be in the way of the Court proceeding to business, and the customary oath was in course of being put to the several Jurymen, when a warm altercation ensured between three of the gentlemen, as to which of the three was most properly entitled by rank and seniority to be Foreman - Captain Wellman, Captain Green, or Captain Crotty.  The first gentleman considering himself senior to the other two gentlemen, kept the same seat he had taken on entering the jury-box, which was in a chair just at its entrance.  The second gentleman maintained his post next the first, and the third-named gentlemen next the second.  The learned Judge recommended to the gentlemen to settle the matter in the way most consonant to justice amongst themselves, and whilst his Honor expressed himself unable to decide which of the three was entitled by seniority to retain the place in dispute, also expressed his dissatisfaction at the delay caused by the point remaining unsettled, and requested that such officer as considered himself senior would take the place of Foreman, agreeably to the statute, which provides that all verdicts of a Jury, assembled as that was, should be delivered by the mouth of the senior officer.  His Honor concluded that in order to prevent as much as possible the recurrence of such an irregularity and uncertainty, as well as that the business of the Court might not be needlessly impeded, as that a proper understanding might exist amongst the gentlemen of a Jury assembled in the same way, and for the same purposes in future, he should communicate with his Excellency the Governor upon the subject.  The three gentlemen being still unable to agree who was first in point of seniority, the Court notwithstanding, proceeded upon.


The first of which was that of

Philip Reilley, who was indicted for breaking and entering the house of Wm. Williams, Esq. in Pitt-street, in the day time, and stealing thereout several articles of property belonging to the latter, above the value of 5l.[2 ]

The Attorney General conducted the prosecutions for the day.

Michael Ryan, a servant to the prosecutor, deposed that on the 3d of August last being in his master's house, attending to some domestic duties, his attention was called by hearing a noise which seemed to proceed from the front part of the house: dropping what he was about, the witness deposed that he hastened out of the kitchen and was passing towards the hall door when the sound of some person in one of the side rooms, used for the purposes of an office, again arrested his attention.  He accordingly stepped up to the door of the office, which having left ajar but a few minutes before, he found was closed and fastened on the inside -- witness knocked but could gain no admittance.  Suspecting from this of whom the room was in possession, witness determined to cut off the enemy's retreat and getting out at the street door cast an eye towards the office window, out of which he beheld a man in the very act of making a plunge right into the street.  That man the witness felt positive was the prisoner staring him at the bar, who resisted stoutly all attempts at caption by the witness who struggled with the fellow lustily but was several minutes before he could obtain assistance, and it was not improbable but the eloper might have given witness the cut and run had not a constable stepped up, by whose assistance the prisoner was finally secured and transported into the receiving arms of the highest watch-house.  Having succeeded so far the witness bent his attention to the office, when he found that a chest of drawers had been pillaged, and part of the contents packed up in a bundle that lay under the window looking into the street.  Upon the inside the office door was locked which witness concluded must have been done by the prisoner or some other stranger, as well as the lifting of the window which was down a little time before the prisoner made his exit through it.

Orr, a Sydney constable, deposed to receiving a bundle from last witness, which he stated on the occasion of the robbery, had been purloined by the prisoner, with whom he was then wrestling in the street opposite the prosecutor's master's house.

The prosecutor having deposed as to the identity of the property produced by the constable, as also to its value, being from 7l. to 8l., and the prisoner offering not a word in defence, the learned Judge charged the Jury on the law of the case, and the Jury retired to consider on their verdict, but had scarcely left the box, before they returned, and again resuming their seats, the Clerk of the Arraigns, after severally challenging the gentlemen as to whether or no each had agreed in the verdict to be given, and an intimation being returned in the affirmative, the question was put in the usual form -- Is the prisoner guilty or not guilty?  Almost at the same moment the three gentlemen.  Captains Wellman, Green, and Crotty, who could not bring themselves to agree upon the point of seniority, responded severally, guilty of stealing to the value of 5l.  This verdict the learned Chief Justice received in the way stated, and directed to be recorded.  The prisoner was remanded for judgment.[3 ]


Source: Australian, 28 November 1828

In order to counteract any wrong impression that may chance to have got abroad from the cursory mention made by us of a slight disagreement amongst the military gentlemen who composed the Jury on the opening of the Criminal Court at its present Session, we deem it but just to state that the Governor's precept appointing a military jury was accidentally delayed, the bearer of the precept having stupidly left it at the private residence of Mr. Justice Stephen, in whose place his learned colleague, Mr. Justice Dowling, presided on the first day's meeting, and it was the time passed in sending back to Mr. Stephen's residence for the precept, which caused the Court to suffer a delay.  We wish also to state that the gentlemen who subsequently composed the jury were in waiting in Court from before ten o'clock in the forenoon.

Captain Wellman took his seat on a chair at one end beyond the precincts of the jury box; in consequence of the officer who disputed rank and seniority with him occupying the foreman's proper seat, which it subsequently appeared Capt. W. was entitled by superiority of rank and relative seniority in the service, to maintain directly in preference on both points, to one of the other two officers who moved in the matter, and on the latter point with the other.

We like to observe unanimity on occasions like these.  A jury constitutionally composed would not be dallying with etiquette, yet it is the rule of the service and it is the advice of the law that the verdicts of all juries composed of military or naval officerss, whether distinct or conjugate, shall be delivered by the senior officer.  We cannot therefore blame in the slightest degree Captain W. for maintaining his claim to be foreman, as clearly recognised by the established rules of the service, and by the law so far as the law touches upon this subject.  In a military view Captain Wellman would have been set down as wanting to himself had he tamely resigned the seat to which established usage and justice gave him the sole relative right.  We hope notwithstanding to hear in future of all matters of the above description being settled fairly beforehand out of Court.


[1 ] At this time, criminal cases in the Supreme Court were heard before a jury of military and naval men: (1823) 4 Geo. 4 c. 96, s. 4.  That had been the case with all serious criminal trials since 1788, despite pressure by reformers.  On the changes instituted by (1828) 9 Geo. 4 c. 83, see Murray to Darling, 31 July 1828, Historical Records of Australia, Series 1, Vol. 14, pp 260f.

The significance of the seniority was that the verdict was to be delivered by the senior officer: see (1823) 4 Geo. 4 c. 96, s. 4; and R. v. Troy and Bradley, 1828.

[2 ] See also Sydney Gazette, 19 November 1828.

[3 ] The defendant claimed that he had never been before the courts in New South Wales before, but was sentenced to death recorded: Sydney Gazette, 15 December 1828.  Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University