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

Attainted Jurors Opinion [1833] NSWSupC 75

felony attaint, right to sit on jury - pardon - trial by jury - reception of English law, capital punishment - capital punishment, abolition of

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 9 August 1833

Source: Sydney Herald, 12 August 1833[1 ]

Opinion of their Honors the Judges of the Supreme Court of New South Wales, as to the competency of Persons, whose sentences have expired, or been remitted, to be Jurors in England.  Ordered by the Council to be printed, August 9, 1833.

Sir, - In accordance with the request of His Excellency the Governor, we have the honour to communicate to you our Opinion on the subject referred to us for the information of the Legislative Council, and contained in your Letter to us of the 7th Instant.

We are of opinion that by the Statute, 6th Geo. IV. c. 50. sec. 3.

Any person (not under outlawry or excommunication) who hath been or shall be attainted of any treason or felony, or convicted of any crime that is infamous, and hath obtained a Free Pardon, would be holden qualified to serve on Juries in England.

We are further of opinion that since the passing of the Statute, 6th Geo. IV. c. 50, the law has been so far altered in this respect, by three subsequent Statutes, viz: - the 7th and 8th Geo. IV. c. 28, the 9th Geo. IV, c. 32, and the 9th Geo. IV. c. 83, that the following persons, who have been convicted of a felony or transportable offence, would now be holden qualified to serve on Juries in England, in addition to those who having been so convicted have obtained a Free Pardon; viz.:-

First.  By Statute 7th and 8th Geo. IV. c. 28, sec. 13.

Any offender convicted of Felony punishable with death, or otherwise, to whom His Majesty hath been or shall be pleased to extend his Royal mercy, and by Warrant under his Royal Sign Manual, countersigned by one of his principal Secretaries of State, hath granted or shall grant to such offender a Conditional Pardon, and the condition has been performed.-

Secondly. - By Statute 9th Geo. IV. c. 32, sec. 3.

Any offender convicted of Felony not punishable with death who hath or shall have endured the punishment adjudged for the same.

Thirdly. - By Statute 9th Geo. IV. c. 83. sec. 32.

Any transported Felon or Offender whose term of transportation hath, before the 1st of January, 1824, been remitted by any Governor of New South Wales in manner directed by the Statute, such remission having also been ratified by His Majesty as therein mentioned.

Fourthly. - We are of opinion that all persons who, having been convicted of any transportable Offence, not being Felony, or such crime as is accounted in law, infamous, have received an Absolute Pardon, or a Conditional Pardon, and have performed the condition, or who have endured the punishment for the same, would be holden qualified.

Because such offences create no disqualification, but only incapacitate the Offender so long as he is deprived of his liberty.

We are further of opinion that persons who have been convicted of Perjury under the Statute 5th Eliz. c. 14, can by no means, but by act of Parliament, be so restored to their civil capacities as to be qualified to serve on Juries in England.

Secondly.  That persons who have been convicted for such transportable offences as are in law accounted infamous, as perjury at common law, subornation of perjury, and forgery in some cases, and have not received a Free Pardon would not now be holden qualified to serve on Juries in England.

Thirdly.  That persons who have been convicted of such offences as are below the degree of felony, and are not transportable offences, but yet are in law accounted infamous, as persons convicted of conspiracy to accuse another of a capital offence, or of any other species of the crimen falsi would not now be holden qualified to serve on Juries in England.

We have the honor to be,


Your most obedient Servants,

FRANCIS FORBES, Chief Justice.



To the Honourable the

Colonial Secretary.



[1 ] This was also published in the Australian, 12 August 1833, and see Australian, 9 August 1833.  A manuscript copy is in the Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 320.

The New South Wales jury law at this time was provided by (1832) 2 William 4 No. 3.  Under s. 4 of that Act, those attainted by reason of felony or treason were not qualified to sit on a jury, unless they had been pardoned or their sentences had expired.  The same applied to those found guilty of infamous crimes (unless pardoned or their sentences had expired) and to ``every man of bad fame, or of dishonest life or conduct, or of immoral character or repute."  By s. 5, those convicted a second time of treason, felony or infamous crime were also excluded.  For contemporary commentary on the passage of this Act, see Sydney Herald, 12 September 1831; Australian, 16 September 1831; Australian, 30 December 1831; Australian, 27 January 1832; Australian, 3 February 1832; Sydney Herald, 23 January 1832; Australian, 24 February 1832.

After some controversy and after this opinion was delivered, the Legislative Council finally passed a bill which became (1833) 4 Wm 4 No. 12.  It continued the previous jury Act until 30 June 1835, but made some amendments.  By s. 3, it repealed the former provision on disqualifications.  Under the new section, those who were attainted by reason of a conviction of treason or felony, or who had been convicted of an infamous crime, were disqualified from sitting on a jury, unless they had received a free pardon.  That is, it deleted the provision about expiry of sentence, and the provision about those of bad character etc.

The irascible John Macarthur wrote to his son Edmond on 23 February 1832, pointing out that he had opposed the appointment of emancipists as jurors when it was debated in the Legislative Council, but that Governor Bourke (who agreed with Forbes) forced the official members of the Council to vote for it.  See Macarthur Papers, vol. 3, A 2899, (reel CY 752B).

The controversy over emancipist jurors continued for years: see the extremely conservative Sydney Herald, 7 May and 30 July 1835.  See also Australian, 28 October 1833; 22 November 1833; Sydney Herald, 3 July 1834.

When he was in England in 1837, Forbes C.J. wrote a brief history of the New South Wales jury legislation: see Forbes Papers, Mitchell Library, A 745.  For further correspondence, see Historical Records of Australia, Series 1, Vol. 17, p. 191.  For Governor Bourke's explanation of the new legislation, see Bourke to Stanley, 12 September 1833, p. 213; and Bourke to Stanley, 2 October 1833, p. 236.  Bourke thought that party feeling had influenced the vote in the Legislative Council, and sent Stanley a report on the division of the community, and council, into emigrant and emancipist parties: 25 December 1833, p. 303.

See also Australian, 1 July 1833, reporting that Dowling J. had expressed doubts as to whether a recent statute for abolishing capital punishment in certain cases (2 & 3 Wm 4 c. 62) was in force in the colony.  The Australian stated that this was the Act which restricted the rights of the holders of tickets of leave.  According to the newspaper, that part of the Act was in force, and should be repealed as quickly as possible.  Chief Justice Forbes also criticised the ticket of leave provisions, apparently, leading to controversy in the newspapers: Australian, 6 September 1833.

On the abolition of capital punishment through the colonial adoption of the English Act, see R. v. Cowan and Campbell, 1833; and (1833) 4 Wm 4 No. 4.  On convict rights under this legislation, see also Tunnicliff v. Barrett, 1833.

Published by the Division of Law, Macquarie University