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

R v White [1835] NSWSupC 62

jury, military, choice of - election, doctrine of - jury, civil, choice of - jury, right to challenge - stealing, cattle

Supreme Court of New South Wales

Burton J., 3 August 1835

Source: Sydney Herald, 6 August 1835[1 ]

John White stood indicted for stealing at Patrick's Plains, one bullock, the property of Robert and Helenus Scott, of Glendon, on the 10th March, 1833.

The prisoner being called on to plead, and choose the jury by which he would be tried, pleaded Not Guilty, and chose a military jury.  His Honor asked the prisoner how long he had come to that conclusion as to his being tried by a military jury; the prisoner answered a few minutes previously by the advice of his lawyer, Mr. Sydney Stephen.  His Honor intimated to the officers of the Court, that he would wish Mr. Stephen to be sent for.  Mr. Stephen having come into Court, His Honor put the following question. - Did you, Mr. Stephen, advise the prisoner at the bar to be tried by a military jury or not?

Mr. S. Stephen. - I did.

His Honor. - Allow me Sir, to ask whether in giving such advice at this late opportunity, you consu[l]ted the advantage of the prisoner, or your own convenience.

Mr. Stephen. - I do not consider myself bound to answer such questions from the bench.

His Honor. - You only leave the Court then to draw its own inferences from your conduct, and I will say, that your own convenience seems to have been considered in this case.

Mr. Stephen, (with some warmth.) - Your Honor may form what opinion you please; but I will tell your Honor that you have no right to assume that I have acted under any such influence in this case.

His Honor. - Let the prisoner be put back for trial by a Military Jury as he has now made that selection.

The Solicitor-General. - Your Honor, I must object to this; I am informed that he has already chosen a Civil Jury in the other Court, and has no right whatever to be allowed to alter his mind, he is bound by his first election; if this case is allowed to go, it will establish a precedent destructive of all order as to the arrangement of cases for trial by the different Juries.  The Court will subject itself to the caprice of prisoners who may change their minds as often as they please.  The law in awarding the privilege to prisoners of electing Juries, certainly did not anticipate that it would be subject to such abuse, as would infallibly establish itself on such a precedent as now presents itself.

His Honor. - As it appears that the plea with the prisoner's choice of a Civil Jury, is already on the records, it cannot now be departed from.  I would wish this case to be looked upon, by all person concerned in the administration of Justice, as an example, that the Court will hold prisoners bound by their first election, under all circumstances.

A Civil Jury was then empannelled.

The Solicitor-General in a peremptory challenge excluded a Juror; immediately after which the prisoner, on the book being put into the hand of J. J. Moore, Esq. of Cabramatta, challenged that gentleman, and he retired from the box.

The Solicitor-General. - I must submit, your Honor, that the prisoner has no right of peremptory challenge, which is exclusively in favorum vitae.  This being a case of cattle stealing, formerly a capital felony, but now punishable only with transportation, the principle of favorum vitae is no longer recognizable by law, having ceased with the abolition of death, before which that privilege was justly and necessarily applied in behalf of the accused; but with the revision of the barbarous code of our fore-fathers, and the recent alterations in our more modern code, it can no longer be claimed as a privilege particularly as the accused still retains the right of challenge upon cause.  I would therefore submit in this case, that the prisoner has no right of peremptory challenge.

His Honor. - I would rather you would not press that point at present Mr. Solicitor General, unless you are fully prepared with your arguments in support of your objection; when you are prepared, if not already, I shall be happy to entertain it.

The Solicitor General. - I could send for my books in a few minutes, if your Honor considers it necessary; the point suggests itself as being one of great importance, and I would be happy that it should at once be disposed of.

His Honor. - My impression is, that the accused has the right of peremptory challenge; and if it should be proved that he has not, then I am of opinion than an Act should be immediately introduced by the Legislative Council, affording persons accused of felony, the advantage of that privilege.  In the present case the prisoner's challenge may stand.

The Solicitor-General expressed his determination to move the point before the Bench, at the earliest opportunity, feeling the deepest impression as to its importance on this Colony in particular.  The case then proceeded, but as the animal had not been positively identified by the evidence adduced, as the one laid in the information, His Honor directed the jury to acquit the prisoner, as upon this point the case had failed.  The prisoner was accordingly discharged.



[1 ] See also Sydney Gazette, 4 August 1835.  For the trial judge's notes, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2419, vol. 18, p. 115.

John White was also tried before Burton J. on 5 August 1835, for robbery on Charles Smith.  He was found not guilty, although Stephen Burnet, who was tried with him was found guilty: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2420, vol. 19, p. 20.

Published by the Division of Law, Macquarie University