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

Opinion on Juries [1836] NSWSupC 22

trial by jury, emancipists - emancipists, jurors - Sydney Herald, attitude to Forbes C.J. - Forbes C.J., attitude of Sydney Herald towards

Supreme Court of New South Wales

Forbes C.J. and Dowling J., April 1836

Source: Sydney Herald, 16 June 1836[ 1]

CIVIL JURIES.

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Opinion of their Honors the Judges of the Supreme

Court, and of the Law Officers of the 

Crown, upon the Verdicts of Civil Juries.

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From the Honorable the Colonial Secretary to their

Honors the Judges of the Supreme Court.

 

Gentlemen, - As Civil Issues have now for the period of six years, and Criminal Issues for the period of four years, been triable in the Supreme Court of New South Wales, in certain specific cases, by Juries of civil inhabitants, empannelled according to Colonial laws enacted in that behalf, I am commanded by the Governor to request, that you will favor me, for His Excellency's information, by stating, either collectively or separately, whether, in your opinions, the verdict of Juries so constituted, have or have not answered the ends of law and justice.

I have the honor to be,

Gentlemen,

Your Honors' most obedient servant,

ALEXANDER McLEAY.

 

Colonial Secretary's Office,

Sydney, April 2, 1836.

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From His Honor the Chief Justice, to the Honorable 

the Colonial Secretary.[ 2]

 

Sir, - With reference to your letter of the 2nd Instant; addressed to the Judges of the Supreme Court, and requesting our opinions, collectively or separately, whether the Verdicts of Juries in Civil and Criminal Cases have answered the ends of Justice, I have the honor to state, for information of His Excellency the Governor, that the Judges prefer answering the question separately; as they have had different degrees of experience since the introduction of Trial by Juries, composed of the Civil Inhabitants.

Upon the first introduction of Trial by Jury into the Supreme Court, I had occasion to observe, that, from want of experience, the Jurors had not formed a right opinion of difference between the law and facts of a case, or appear to have been properly impressed with the constitutional maxim, ad questionem facti respondent Juratortes, ad questionem legis judices; they appeared to entertain an opinion that the whole power of determining the matters at issue between the parties, had been transferred from the Judge and Assessors to the Jury.  This error, as it arose from the want of practice in discharging the office of Jurors, so it has given way to time and experience.  I have no difficulty in stating it as my opinion at present, that the verdicts of Juries in Civil cases have answered the ends of law and justice.  I believe, that this opinion is entertained by the suitors of the Court, as I have not heard of any complaints from the parties \themselves, of the want of the fairness of trial.

His Excellency is of course aware, that if justice be not done by the verdicts of a Jury in a Civil cause, it is within the power of the Court to grant a new trial, and I think it will be found, that new trials have not been more frequently granted by the Court in causes tried by Civil Juries, than by Assessors; making due allowance for the circumstance, that in trials by Assessors, there is the less probability of the other Judges disagreeing with the finding; and also that as it is within the power of the Court to grant or withhold Trial by Jury: this form of trial is seldom applied for, except upon some contemplated difficulty, or conflict of evidence alleged as the ground of application in the particular case.

With respect to the trial of Criminal Issues, I may take some credit for experience in the operation of Juries, as I have sat exclusively from the time of their introduction on that side of the Court, where the cases are usually tried by Juries composed of the Inhabitants.  I can safely state, that with one or two exceptions, I have been satisfied with their verdicts; and in those cases in which I was not satisfied, there was a conflict of testimony, and I cannot say, but the Jury might have taken a conscientious view of the case, although I differed with them in their conclusion.  There have certainly been from time improper persons impannelled on these Juries, but the fault is not in the law, for the Jury Law of the Colony is in principle, the same as the Jury Law in England; it is attributable to the neglect of those person to whom the care of returning person properly qualified has been committed.  I had occasion, during the last year, to discharge two person from the Jury Lists, both of them Convicts under sentence of transportation; I may add, however, that the attention of the Magistrates has been directed to this important part of their duty; and that there has been great care taken in the preparation of the Jury Lists for the present year.

It may be proper to observe, that by comparing the returns of the number of person tried by Juries of Inhabitants and by Military Officers, with the number of convictions by each; the convictions of the latter are more numerous, in proportion than the former, during the three first years after the introduction of Civil Juries.  During the last Session, the number of convictions was greater in proportion by the Civil, than by the Military Juries.  But in my opinion, the difference in the number of convictions will not afford a satisfactory criterion of the comparative justice of the verdicts, because this result is liable to be affected by causes which afford no data for forming a correct conclusion.  I have observed that in cases of aggravated violence against the settlers, which, from the depositions appeared to to [sic] be desperate, the accused parties have elected a Military Jury, probably from some vague hope of finding mercy at the hands of gentlemen disconnected with the Colonists, while in cases where a conflict of testimony was to be set up as a defence, the probability of twelve person being of different opinions upon the credit of witnesses was greater than that of seven, and consequently there was a better chance of acquittal.  I will not venture to affirm that this has always entered into the calculation of the parties accused, but on some occasions I have distinctly discerned its operation.  These two causes are sufficient, however partial their operation, to materially affect the relative proportion of convictions by either class of Juries.

I am aware it is frequently asserted, that the introduction of Trial by Jury has not answered the ends of justice; but I believe this opinion is entertained, chiefly among persons who have not attended the Courts, and who express themselves upon the authority of report; and I also believe that the objections which are felt to this constitutional form of trial, are partly political; but principally arise from the unwillingness of the upper classes of the inhabitants to be drawn so frequently from their private affairs to attend an irksome and painful duty in the Courts.  An objection which I admit is very natural, and which, unfortunately must continue to be felt, until the institution of Circuit Courts shall relieve them from a considerable portion of this duty.  In short, my decided opinion is, that Trial by Jury in this Colony has been deferred too long.

I have the honor to be,

Sir,

your most obedient humble servant,

(Signed)FRANCIS FORBES,

Chief Justice.

Sydney, April 12th, 1836.

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From His Honor Mr. Justice Dowling, to the

Honorable the Colonial Secretary.

 

Sir, - In reply to the joint and several letter of the 2nd. instant, addressed by command of the Governor to the Judges, I have the honor to state for the information of His Excellency, that in my opinion, so far as my experience and observatior have extended, the verdicts of the Juries of Civil Inhabitants, empannelled under the Colonial Laws for the trial of Civil and Criminal Issues respectively in the Supreme Court, have in general answered the ends of law and justice.

Since the laws in question have been in operation, eighty causes have been tried before myself on the Civil Side of the Supreme Court by Juries of Civil Inhabitants of the Colony, that is to say, between the 15th March, 1130, and the 15th March, 1836, inclusively: of which fifty-two were special, and twenty-eight common Jury issues.  Between the 7th August, 1833, and the 15th March, 1836, about one hundred cases were tried before me, on the Criminal Side of the Supreme Court, by common Juries of Civil Inhabitants.

I am not prepared to say that I was satisfied with every verdict delivered by the Juries so constituted; but judging from my own close observation of the working of the Trial by Jury in the Mother Country, after an experience of nearly twenty-five years, and adverting to the inevitable imperfection of a tribunal composed of so many various mental capacities, I am of opinion, that the Jury system in this country, will not bear a very disadvantageous comparison with that in the Mother Country, especially as the introduction of the system into this Colony is at present so limited in its adoption, and so recent in its date.

Some few unsatisfactory verdicts have undoubtedly been delivered by those other tribunals still existing in the Colony, for the trial of civil and criminal issues, respectively in the Supreme Court.  When the Jury system comes to have a fairer trial, and greater care than hitherto shall be taken in future by the returning officers, to return fit and legally qualified persons to serve as Jurors, I doubt not that the administration of justice will be greatly benefited by the permanent and most unqualified adoption of the system.

I have the honor to be,

Sir,

Your most obedient humble servant,

(Signed)JAMES DOWLING,

Senior Puisne Judge.

Sydney New South Wales,

April 7, 1836.

 

Burton J., Kinchela and Plunkett, April 1836

Source: Sydney Herald, 20 June 1836

 

CIVIL JURIES.

________

Opinions of their Honors the Judges of the Supreme 

Court, and of the Law Officers of the 

Crown, upon the Verdicts of Civil Juries.

________

(Concluded from our last.)

________

From His Honor Mr. Justice Burton, to the 

Honorable the Colonial Secretary.

 

Sir, - His Honor the Chief Justice has communicated to me your letter addressed to the Judges of the Supreme Court, dated 2nd April, 1836, wherein you stated, that, as civil issues have now for the period of six years, and criminal issues for the period of four years, been triable in the Supreme Court of New South Wales, in certain specified cases, by Juries of civil inhabitants, empannelled according to Colonial Laws enacted in that behalf, you are commanded by the Governor to request that we will favour you, for His Excellency's information, by stating, either collectively or separately, whether in our opinions, the verdicts of Juries so constituted, have or have not answered the ends of law and justice.

His Honor the Chief Justice has further communicated to me his intention of expressing his own opinion on this subject separately, and Mr. Justice Dowling having, I understand, followed him in that course, it remains for me to express mine in a similar mode.

I must, however, state, that from the circumstance, that my brother Judges have always exercised a selection, both as to the days of their sitting, and as to the Jury trials, it has happened that during the three years I have sat upon the Bench of this Colony, no more than twenty-three issues in civil cases have been tried before me by Juries, it having chiefly fallen to my lot to try those cases which have been left to the ordinary mode of trial of civil issues before the Supreme Court, by a Judge and two assessors, and only one hundred and eleven issues in criminal cases out of a number of three hundred and three, have for the same reason been tried before me by Juries of civil inhabitants.

I should, therefore, be unwilling to express any general opinion formed from the results of these verdicts, for it appears to me, that if the results of the verdicts themselves are to be taken as the basis of an opinion, that must be ascertained upon a consideration of all the verdicts which have been recorded within the assigned period, and not upon a view of those alone which have been recorded before an individual Judge, and I have no opportunity for such a consideration.

I am, however, of opinion that the results of the verdicts of Juries do not afford such a criterion of judgment as would justify my offering a general opinion, either that they have or have not answered the ends of law and justice in this Colony.  In civil cases, such as form the ordinary business of the Court, the matter in dispute are extremely simple, affording seldom any field for undue bias on either side in the minds of those who form the Jury upon the trial.  It is only in cases occurring between the Government and an individual, or involving some point of political or party feeling, that any trial can be had of the principles of the jurymen, and happily there have been no instances of any such during the last three years.

In criminal cases, however, for trial, there is greater and more constant ground for the apprehension of improper influence and undue bias upon the minds of jurymen, inasmuch as although ordinarily the cases to be tried would appear to involve no political or party feeling, yet from the circumstance that prisoners for trial before the Courts of this Colony are chiefly of a class transported hither for crimes committed out of the Colony; and that persons of the same condition, and others very low in respectability and character, and frequently also allied to them, are qualified, according to colonial law, to serve as jurymen; and that the persons to be tried, frequently possess means of influencing in their favour, if so disposed, those whose principles are not superior to such contamination; and thus not only a bias arising from old association, fellow-feeling, and class of life, but more direct influence may exist to cause an improper verdict to be returned, and yet no circumstance become apparent to cause the detection of the evil principle; whilst on the other hand, a verdict which may be wholly unsatisfactory to others, may nevertheless have proceeded upon the purest and most upright principles on the part of the Jury.

With respect to the verdicts which have been recorded before myself as one of the three Judges, I have to remark that very few cases of conviction have occurred in which the verdict has been unsatisfactory to me, and I have in those instances invariably submitted at the time my dissatisfaction to His Excellency the Governor.  In the great proportion of cases which are brought before the Court, the parties accused are without means of procuring assistance in their defence, and without influence, and the evidence is conclusive one way or other.  Respecting such, there is no room for the exercise of undue influence, and whether the verdict be of acquittal or conviction, no room for dissatisfaction with it; it is only where means of influence are within the power of the prisoner, that the suspicion arises of their being exerted in his behalf.  The cases in which, as a mere byestander [sic], I might consider the verdict unsatisfactory, have been chiefly those of acquittal; with respect to them, however, I can only take upon myself to say, that in several of them I should not myself have returned such a verdict as has been returned; but unless I could discover actual dishonesty in the Jury, I would not venture to call it unsatisfactory to me, conceiving that I have no right, as a Judge, to do more than truly to state the law and fairly to lay the facts of the case before the Jury; and that it is not my province to take the case out of their hands, or to relieve them of the responsibility of whatever verdict they may return.  It is not my habit to betray any opinion of my own upon the facts of the case, and still less to sit in judgment upon their verdicts afterwards, except as before stated in favor of a party convicted.

I have had occasion, however, to be convinced by my own personal observation of the existence amongst the Jury of an improper prejudice in favor of the party accused.  In one case, a native of the Colony and the son of a publican was the party charged, and in the course of the trial, three of the Jurymen, who were also publicans, manifested by their gestures, their observations, and by the questions they put, such a predisposition in his favor, as caused me, in summing up, to address myself so strongly to them upon the danger and wickedness of such a predisposition, that, if it had existed, it was abandoned, and the prisoner, as to whose guilt there could, I think, be no reasonable doubt, was convicted.

In another case, were two prisoners were charged with an offence, and were sworn to by one witness, and there was respectable corroborative evidence in aid of his testimony; I observed before the prosecution was closed, and certainly before any doubt had been thrown upon the case, a similar disposition on the part of some of the Jury, and one in particular told the principal witness) who had stated that as one of the prisoners came up to him at out dusk in the evening, he had said to him ``Is that you Paddy!"  At first taking him for another person) that he would not believe him or any other man in Sydney, who said he did not know * * * *, naming the prisoner, thereby manifesting his own acquaintance at least, with that prisoner.  Many facts were afterwards adduced by the prisoners, in contradiction of the evidence for the Crown (whether true or false it was for the Jury alone to judge,) and both the prisoners were acquitted.

In these instances I have no doubt that there were persons on the Jury, predisposed towards the parties charged, they having been so unwary as to betray their feeling, a circumstance however, scarcely to be expected where such a feeling is entertained; but I have been afterwards made acquainted with its actual existence in other cases, where I did not observe it.  Whether the verdict in the latter instance was owing to improper influence or bias, it is impossible to judge; there were circumstances sworn to, which, if true, would justify the verdict, and so in the great number of verdicts of acquittal in this Colony which are unsatisfactory to the bystanders (and such I have remarked, are always those where the parties accused, have possessed means of obtaining assistance in their defence, and of procuring witnesses in their behalf.)  There have even been circumstances sworn to, contradicting the testimony, or disparaging the credit of the witnesses for the Crown, and I am sorry to say, I have been often times fully convinced, that a great mass of false testimony is for this purpose continually brought into the different Courts of the Colony.  An honest man may believe such testimony, and dishonest man may lay hold of it to raise a doubt upon; the result of a verdict of acquittal, consequently affords no criterion upon which to judge of it.  There can be no confidence in such cases, but in a Jury, themselves, above suspicion.  One great end which is attained in our own country by the institution of Trial by Jury, and I believe in every other in which it has been established but this, is the respect and veneration with which it is regarded, and the confidence with which it inspires the public mind, that the interests of the community, and the life, reputation, liberty, and property of its individual members may be safely entrusted to the safeguard of Juries of the country.

This end, however, it appears to me to have failed in attaining in this Colony; and first it appears to me, that a want of cofidence [sic] in Juries, constituted according to the Colonial law, is betrayed on the part of the Colonial Legislature itself, in the Local Act, 4th Will. IV, No 12, sec. 2, whereby it is enacted, ``That all and every issues and issue of fact joined on any information which shall be exhibited in the Supreme Court, against any person or persons for any crime, misdemeanor, or offence, shall be tried by a Jury of twelve of the inhabitants of the said Colony, provided any such person or persons shall be desirous of having any such issues or issue of facts so tried, and shall declare such his, her, or their desire, upon being arraigned upon any such information in the said Court," thus leaving to the party to be tried, the option of a Jury of Military Officers, as is provided by the stat. 9th Geo. IV., chap. 83, sec. 5, which choice, I presume, would not have been left to a party so circumstanced, had the Legislature considered the Juries of civil inhabitants as constituted according to Colonial law, entitled to entire confidence.

Secondly - It appears to me, that a want of confidence in the Juries of this Colony is entertained on the part of the civil inhabitants.  I have myself sat for upwards of three years in the Supreme Court, and have witnessed the disposition in which that mode of trial has been received by persons of undoubted respectability, and themselves in every way qualified, who have been summoned to serve as Jurors, and although not so often engaged as my brother Judges upon trials with Juries of civil inhabitants, I have nevertheless had opportunity every session, of witnessing the display of that disposition, and I have no hesitation in saying, that it has appeared to me, that such persons have given the strongest proof, by their unwillingness to appear and to serve on Juries, of an absence, on their part, of confidence in, and respect for, the institution of Juries in this Colony; and I am of opinion, that this arises from the circumstance that very low and disreputable persons are qualified and liable to serve on Juries, according to Colonial Law, and the Juries actually empannelled, are frequently chiefly formed of such persons.

The qualifications are those contained in the Local Act, 2nd Will. Iv., No. 3, sec. 2, viz. - ``A clear income arising out of lands, houses, or other real estate, of at least Thirty pounds per annum, or a clear personal estate of at least Three hundred pounds."

The disqualifications as they now stand, are those contained in the Local Act, 4th Will. IV., No. 12 sec. 3 and 4, and are, First - Of every man, not a natural born subject of the King, and every man who hath been or shall be attainted of any treason or felony, or convicted of any crime (unless he shall have received for such crime a free pardon, or shall be within the benefit and protection of some Act of Parliament having the force and effect of a pardon under the Great Seal).  Secondly - Of any person upon him in any part of the British Dominions, or after the expiration or remission of such sentence, shall have been convicted of any treason, felony, or other infamous offence.

Respecting the qualifications arising from property, the possession of such an amount as is specified in the Act, affords no criterion in this Colony, where property is notoriously accumulated by every variety of dishonest means, of the respectability and trustworthiness of the possessor of it, and that criterion which in a community differently constituted from the present, where property is scarce amongst a large and reputable class of persons, may form a safe guide to the eligibility of a Juror as placing him above temptation, wholly fails in a community like this, lacking honesty, but abounding in property.  Whilst in consequence of this qualification being requisite, many honest and respectable persons in the community, very proper in every respect to serve on Juries, are excluded from the list; in proof of which I may be allowed to instance, as it arises either from this cause or from negligence on the part of those to whom is confided the preparation of the Jury lists, that out of sixty-six respectable persons, Scotch emigrants, chiefly heads of families, fifty-six of whom arrived in this Colony in the year 1831, and ten in the year 1834 (a nominal list of whom I annex hereto), only seven have been placed on the Jury lists upon which the Courts have hitherto acted, and only twelve upon the new list which has been framed for the present year.

Within the range of qualification marked out by the Act, are included a class of persons in this Colony who have been transported hither for offences committed out of the Colony.  As to them, there exists a legal presumption that at one time they were not of good repute; they are nevertheless qualified as Jurymen under the Local act, without any proof being previously required that they have regained in the estimation of the world that good repute which has once been lost, and the mere circumstance of their having severed the period of their several sentences, although it satisfies the claims of vindictive justice, does not establish that fact.

There are others also possessing qualification in property equal to any amount which would be required as a criterion of respectability, who have arrived in this Colony as free emigrants, the near relations of transported persons, and others so connected with them by various ties, as justly to lead to the suspicion of an undue bias existing in any case affecting many of them, unless the moral principles of these person be known to be such as to place them beyond suspicion, especially as it may be considered that those who have been transported to this country from the United Kingdom have very frequently dishonest connexions there, who are not unlikely to follow them hither, and that persons of that class who have connexions in England, possess ready means of importing into this country property dishonestly acquired, and of speedily accumulating wealth by that and other dishonest means; and there is no provision in the Act for guarding the administration of justice against the predominance of such persons upon the Jury list.

I have next to observe, that whether the principle upon which the Colonial law has been framed be erroneous or not, its effect in practice has been, that the Juries actually empannelled under it have been frequently formed of very improper persons.

In order that His Excellency may form his own judgment upon this point, I annex a copy of all the Jury pannels of the Supreme Court from the 11th of November 1833, to the 11th of February 1836, the period during which the Jury Act has been in force as to the trial of criminal issues distinguishing those person who have not appeared and have not served, by a blank space opposite their names, and those who have actually served, by setting opposite their names, in figures, the days on which they served, [and further, distinguishing by letters in the column of ``remarks," according so the best information.  I have been able to obtain, the several classes of transported persons, natives of the Colony, and free emigrants, and a blank for persons unknown.  I also annex a synopsis containing the results gathered from the several panels from which His Excellency may at once see of what persons the Juries in the Supreme Court have been constituted].

And first, I would draw his attention to the proportion which the class of convicted person on these panels bears to that of free emigrants and natives of the Colony.

Secondly - To the proportion which the class of publicans bears to that of other persons.

Thirdly - I would lead His Excellency to a conclusion, suggested by a reference to the panels themselves, as to how many persons of those two classes who have actually served, were proper to be entrusted with the administration of justice.

Fourthly - I would refer to the names and descriptions of these persons as they stand upon the panels, who, falling within the class of person born in the Colony or came free, have actually served, in order that His Excellency may form a judgment as to how many of those person are proper to be entrusted with the administration of justice.

Fifthly - I would refer to the names and descriptions of those persons, as they stand upon the panels, who have not appeared and served, as indicative of that unwillingness and the extent of it on the part of respectable persons to serve on Juries so constituted, which I have stated as existing.

Upon the view thus submitted, it will appear that a party accused, inclined to exercise his right of peremptory challenge, might ensure a large predominance of convicted persons on the Jury, inasmuch as the law allows, in cases of felony, of the peremptory challenge to the extent of twenty in number, and in the panel.  No. 1 for instance, it will be seen that out of twenty-six person who appeared, nine were certainly of that class, eight only were certainly of the class of free emigrants, or natives, the remaining nine being unknown, whilst in many other panels, as in No. 2, No. 3, No. 4 No. 11, No. 17, &c., the proportion is still greater, and if a prisoner has professional assistance in his defence, this right of challenge is very freely exercised.  In one instance I observed gentlemen of such character and respectability thus peremptorily rejected on the part of a prisoner, that I took the liberty of asking some of them afterwards if the prisoner were known to them, and was answered that he was not.  The conclusion in my own mind was, that they were challenged on account of their respectability; in another case before me every person of apparent respectability who was called, was peremptorily challenged on the part of the prisoner, which the Crown Officer observing, challenged all the others, and the case remained over for default of Jurors! in both cases the accused had professional assistance.

Again, inasmuch as according to Colonial Law, the Jurors are placed alphabetically on the list, and are summoned in that order; the relations of convicted person, also qualified and bearing the same name, are sure to be on the same panel with them, and owing to this alphabetical order being observed, a party may be well informed beforehand, who will be summoned on his Jury, and so an opportunity offers for the exertion of improper influence.

Further, it will appear, that a large proportion of the persons who have appeared and served, are Publicans, so many in some instances as eight (three also having been convicted persons) out of twenty-nine: ten (five having been also convicted persons) out of thirty-one; eleven (four of them having been convicted persons out of thirty-five, &c.  Respecting the large proportion of this class of persons on the Jury panels, I had the honor of pointing His Excellency's attention to this circumstance, in a letter which I found it my duty to address to His Excellency on the 2nd of December, 1835, on the state of crime in this Colony, and the cause of it, as exhibited in the proceedings before me in the Supreme Court; and now repeat, that the evils arising from the very great number of licensed houses for the sale of ardent spirits, are not restricted to the stimulus which they give to the commission of crime, and the concealment of it which they afford; but I have found a very great proportion, out of the panel of Jurymen before the Supreme Court, ``who actually attend," to be holders of licensed public houses, frequently very low in respectability, to whose houses prosecutors, and parties accused ``on bail," and their witnesses, bond and free, resort for the purpose of drinking during the period of time they are in attendance on the Court; and a reasonable fear is thus excited for the purity of the administration of justice, which I have had occasion, as a Judge, to see realized."

Upon reference to the  Jury lists as returned for the year 1835, which are the last acted upon by the Court, I have found that the total number of Jurors belonging to the County of Cumberland, and liable to be summoned for the trial of Criminal Issues before the Supreme Court, amounts to nine hundred and fifty-three, of whom two hundred and three were publicans and innkeepers.  The proportion, however, of those who actually served, as shewn by me, has far exceeded this proportion; and I am aware that in June, 1835, no less a number than two hundred and twenty-four licenses were granted for public houses ``in the town of Sydney alone."  All these persons are householders, and they most readily occur to those with whom the framing of the Jury Lists in practice commences.  Few of them do not possess the pecuniary qualification required by the Act, and many of them are highly respectable persons; but the proportion which these bear to the whole number will be found on reference to the list of Sydney publicans, to be but small.

The keepers of the low public houses in Sydney, which form the far greater number, are chiefly persons who have been transported to this Colony, or are married to Convicts; many of them are notorious drunkards, obscene persons, fighters, gamblers, receivers of stolen goods, receivers and harbourers of thieves, and of the most depraved of both sexes.  They exist upon the vices of the lower orders, and, inasmuch as there are no licensed pawnbrokers in Sydney, they are in fact the pawnbrokers; but not, as frequently occurs in other countries, upon occasion of some temporary pressure on the poor, for some necessary of life, but for intoxicating liquor.

I cannot reconcile the circumstance of such persons obtaining ``recommendations" for licenses with any other presumption, that that they resort to dishonest means for the purpose, since I cannot conceive that circumstances relating to them, which are known to their neighbours, can, by possibility, be unknown to those who recommend them for licenses.

I have stated thus much concerning this class of persons, in order to shew how very unfit they are to be entrusted with the administration of justice as Jurors.

I am aware that in the Jury lists which have been framed for the year 1836, since I had the honor of addressing the letter to His Excellency above referred to, there are to be found a less number of publicans in the County of Cumberland, by ninety-three, than were on the lists which have ``been hitherto acted upon - a circumstance which it may perhaps be admissible to mention, as shewing that nearly one-half of this class of person who were on those lists, have been now considered by the Magistrates as improper to serve on Juries.  The proportion, however, upon the new lists for 1836, is still one hundred and sixteen publicans out of eight hundred and twelve Jurors for the County of Cumberland.

Upon the view, which is thus submitted, of the great proportion of keepers of public houses in Sydney, who have actually served on the Juries before the Supreme Court, since the 11th November, 1833, it will further appear how large a proportion of those persons a party accused might ensure on his Jury, especially when it is considered that two Juries of twelve persons in each, collected out of one panel, have been very frequently sitting for the trial of Criminal issues at the same time.

Further, I have reason to believe that much of the unwillingness of respectable persons to appear and serve on Juries, arises from repugnance to association and confinement in the Jury-room with persons whom they themselves know to be disreputable, and much from the ill conduct occasionally displayed by those persons, in the manifest determination of some one or more of them to acquit prisoners, in particular cases, at all events, when there has appeared to the rest of the Jury no ground for so doing; and which causes them (however improperly) to give up their own opinion rather than endure confinement with such persons.  An instance of this occurred in a case where a young man, a native of the Colony, was tried before me, and a verdict of acquittal was returned, which might be considered unsatisfactory to a byestander [sic], but where no predisposition, amongst the Jury, in favor of the prisoner, was manifested in Court, and I suspected none: is was afterwards informed by a highly respectable and credible gentleman, a married man, and father of a family, who was one of the Jury, that such did nevertheless exist, and actually caused the acquittal in question.  The Jury retired to consider their verdict, and my information entered the retiring-room about the third or fourth, and found one of the Jury, who had already entered, lying on the table on his back with his arms folded, who said, ``Well, my mind is made up."  Another followed, and immediately lay down on the floor, saying, ``My mind is made up;" and when all got into the room the Jury were talking about indifferent matters concerning their own business for about twenty minutes, when the foreman called their attention to the case, and said, ``Come, gentlemen, let us to business;" when they repeated, ``their minds were made up;" one giving, as his reason, that he had known the boy's father for many years - another, that he had known the boy's mother for many years - and a third, that he had known the boy from a child.  Three of the Jury, including the foreman, were of opinion that the prisoner was guilty; and nine, of whom three were certainly convicted persons, for acquittal, the remaining six appearing to be led in their opinion by two of those three; but from their conversation during the time they were confined together, it appeared to my informant that the whole nine persons were of that class; and it further appeared to him, that they were predetermined to acquit the prisoner, right or wrong.

The Jury remained locked up the whole night, during which, my informant stated, there was much foul and disgusting language and next morning he and those who agreed with him in opinion, yielded to the others rather than continue to be so associated; he further stated, that in his opinion, no greater punishment can be inflicted upon a respectable person, than to be shut up with such people for a few hours, or at all events for the night; and that no consideration would induce him again to serve on a Jury with them, a determination which I have abundant reason to believe influences many like respectable persons in this community.

The same gentleman further informed me, that he was on a Jury in another case, also tried before me on the previous day, where an acquittal also took place, and where there appeared to him to exist the same predetermination to acquit.

As a further illustration of the same improper prejudice, I have been informed by a respectable inhabitant of Sydney, on whose veracity I rely, that he was sitting under the Jury-box in the Supreme Court, upon an occasion when a prisoner was on his trial for Cattle stealing, who was defended by one of the practitioners of the Court, when, during the progress of the trial, a juryman leaned over my informant towards the practitioner, and called him by his name: the latter looked up, and the Juryman said, ``its all right, we'll acquit him;" when the prisoner was called on for his defence, the practitioner advised him to say nothing, and call no witnesses, and he was acquitted.

I am further informed by an officer under the Government, who is well acquainted with the low characters of Sydney, and who is generally in attendance on the Supreme Court during the Criminal trials, and in whose veracity I rely, that he has frequently seen persons amongst the Jury, whom he has known to be disreputable, and has given the Crown Solicitor information, upon which the parties have been challenged; but his so doing having become known to some officers of the Court who informed the parties challenged that it was upon his information, he was obliged to desist.

The same officer has further informed me from his own knowledge, that the general character of the Juries has been, that they have been formed of low and disreputable persons, except in some few instances, and that there are always some such on every Jury.

I might adduce some facts within my knowledge to the same effect; but enough have perhaps been stated to show the causes which have led to the Jury System in this Colony falling into disrepute, and to justify me in adding, that Juries so constituted have not my confidence.

I have, however, no doubt from all I have seen and known of the resources of this Colony in the number of its respectable inhabitants, that there are abundant for the establishment of the Jury System here, upon a basis which must command the respect and confidence of all classes, and I know no reason why Juries in New South Wales should not and cannot be constituted of men equally ``omni exceptione majores" as in any country in the world' but I know of many reasons why they should be so constituted here more especially than in any other, if (which, however, I do not admit) that principle can any where be departed from, and the administration of justice committed to other hands.

I have made it my duty to inquire for His Excellency's information not only what persons have actually served upon Juries, but also to a certain extent, who have been omitted, and I have pointed His Excellency's attention to the fact of a considerable number of respectable citizens not being placed upon the lists at all.  Whether this has happened from omission on the part of those to whom the preparation of the lists is in the first instance committed, or whether it arises from those persons not possessing the requisite pecuniary qualification, it shews that from one or other of these causes the public have not the advantage of the services of these men as Jurors; and I have abuntant [sic] reason for supposing that if a similar inquiry should be pursued, other instances will be found of like omissions as to other emigrants of good character who have arrived in this Colony of late years, and that there are persons enough to be found equally well qualified with them to supply a requisite number of Jurymen; but I am aware that in order to obtain their services, and to render then effectual, there must be a change, not only in the principles upon which they are to be chosen; but in the agents employed in selecting them, and in the practice hitherto pursued in the selection.

I have the honor to be,

Sir,

Your obedient humble servant,

(Signed)W. W. BURTON.

 

From the Attorney and Solicitor General, to the Honorable the Colonial Secretary.

Court House Chambers, April 8th 1836.

Sir, we have the honor to acknowledge the receipt of your letter (No. 161) ``requesting that we would state, either jointly or separately, for the information of His Excellency the Governor, whether, in our opinions, the verdicts of Civil Juries in the Supreme Court have, or have not, answered the ends of justice."

As we have not the slighest [sic] difference of opinion in answering this question, we therefore prefer giving our reply jointly.

Since the first establishment of Civil Juries for the trial of Criminal issues in the Supreme Court, every case that was tried there was conducted by either one or other of us, and we do not recollect a single case in which we considered the verdict was decidedly wrong.  In some very few cases, perhaps to the amount of four or five, we have differed in opinion with the Juries; but, even in those cases, we have no reason to be dissatisfied with the verdicts, because the questions on which we so differed arose out of mere evidence, and depended upon the credit due to witnesses, and were consequently peculiarly the province of the Jury to decide upon.

We beg leave to state, however, that we have always considered it necessary to be very circumspect at the time of the empannelling of Civil Juries, in order to prevent persons from being sworn as Jurymen that were not legally qualified; because the names of several persons, who were possessed of no property whatever, and of very doubtful character, (even prisoners of the Crown holding Tickets of Leave) have been returned on the Jury list.  By the Act of Council, 2 Wm. IV., No. 3, the Justices of the Peace are directed to assemble in their respective districts, at a Sessions to be held on certain days in the month of January, for making up and correcting the Jury lists, before they were returned to the Sheriff.

This Act requires the attendance of all Magistrates living within each district, that each may give the benefit of his local knowledge of its inhabitants to his brother Magistrates, and thus enable them to revise the lists with greater accuracy.

This very important duty has not hitherto been sufficiently attended to by some of the Magistrates, and it is to this that we attribute the circumstance of so many unqualified persons having been returned to serve as Jurors.

The Jury lists of the present year (at least that for Sydney, which is the principal district,) we have reason to believe are free from this objection.  But, notwithstanding this irregularity in the Jury lists, as hitherto returned to the Sheriff, we consider the verdicts of Civil Juries in the Supreme Court, have answered the ends of justice, and have been in accordance with the spirit of the British constitution.

We have the honour to be,

Sir,

Your obedient Servants,

(Signed)JOHN KINCHELA,

Attorney General.

J. H. PLUNKETT.

Solicitor General.

 

Notes

[ 1] The Sydney Herald, 30 June 1836, responded to these opinions in characteristic fashion: it said that the view of Forbes C.J. was predictable, and that of  Dowling J. was merely an echo of the Chief Justice's.  This was published six weeks after Forbes' departure for England, which shows that the Herald's hostility to Forbes C.J. did not end when he left the colony.  See also Sydney Herald, 11 and 18 July 1836, for comments on the views of Burton J.

As the notes to R. v. Murrell, 1836 show, Forbes C.J. was under immense pressure at the time this was written, one of his last acts on the bench.  The Sydney Herald was attacking him regularly.  One of its  main complaints about Forbes was his role in the enactment of what it called the Convict Jury Law, under which emancipists could sit as jurors: see for example, Sydney Herald, 30 May 1836 (editorial).  Despite its furious opposition, the jury Act was renewed until 30 June 1837: Sydney Gazette, 16 June 1836; 6 Wm 4 No. 15.

The Sydney Herald continued its attack on Forbes C.J. well into the second half of 1836, particularly concerning his connection with a convict called Gough: see Sydney Herald, 10 and 24 October 1836.  For the reply of the Australian, see its editorial of 4 October 1836, and the issue of 25 October 1836.  The Sydney Herald then scoffed at the low price received for a portrait of Forbes: 7 November 1836.  As a correspondent to the Australian noted in its pages of 25 November 1836, this campaign appears to have been animated by personal hatred of Forbes and Governor Bourke.

For the views of Burton J. on these broad questions, see also Speech to Jury, 1835.

In early 1836, there were two important petitions for constitutional reform, raising some of the issues examined in Burton's Speech to Jury, 1835: see Australian, 29 March, and 8 April 1836, and see 1 April 1836 (news item, and letter to editor), 15 April 1836 (editorial and report of meeting) 19 April 1836 (editorial and article), 26 April 1836 (editorial), 3 June 1836 (``The Tory Association"), 7, 10, 14 June 1836 (articles).  See also Bourke to Glenelg, 13 April 1836 (Historical Records of Australia, Series 1, Vol. 18, pp 391f) which included copies of the petitions.

The subjects of juries, transportation and emancipist rights were very often in the newspapers in 1836: see for instance, Australian, 6 September 1836, noting that there would be three classes of transportation in future: Norfolk Island or Macquarie Harbour for the worst prisoners, working in road gangs for intermediate prisoners, and assignment to private masters for the rest.  The latter had been in existence for most of the colony's history.  There was a long debate in the newspapers about whether crime was increasing: see for example Australian, 18 November 1836, suggesting that it was in fact decreasing and noting that the just completed Criminal Session in the Supreme Court had not included a single conviction of highway robbery.  This was based on a conversation in court between Dowling A.C.J. and the Attorney General (Mr Plunkett), as to which, see Sydney Gazette, 15 November 1836; Sydney Herald, 17 November 1836; Australian, 18 November 1836.  See also Australian, 30 December 1836.

[ 2] There is a copy of this particular letter in Chief Justice's Letter Book, 1836, State Records of New South Wales, 4/6652, p. 10.

Published by the Division of Law, Macquarie University