Skip to Content

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

Dowling C.J. on Jury Trial [1839] NSWSupC 64

trial by jury, military jury

Source: Sydney Herald, 16 September 1839[1] 



Although want of space prevented us from giving a full report of the proceedings in Council on the day upon which the Jury Bill was discussed, yet as the opinions of the Judges upon subjects connected with the administration of justice are always important, we publish the Chief Justice's remarks upon the occasion.  He said the Bill now on the table had his hearty concurrence.  The object of it was to confirm to the Queen's subjects in New South Wales, that mode of trial which was as ancient as the constitution of England.  Nothing but the peculiar circumstances under which this Colony was founded could excuse the anomaly of a trial by seven Military Officers, instead of twelve Civil inhabitants.  The necessity for so wide a departure from the ancient laws of England, he ventured to say, no longer existed.  In 1836, he had officially certified when called upon, ``that in his opinion, so far as his experience had 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, had in general answered the ends of law and justice."  Since then, he had seen no reason to change that opinion.  On the contrary, it had been confirmed by subsequent experience, and he was prepared to express his conviction, from close observation, that the Colony was in a fit state to receive with advantage to public justice, the unqualified introduction of Trial by Jury.  There were now thousands of respectable Civil inhabitants in New South Wales, as well qualified by intelligence and respectability to discharge the office of Jurymen as in any other part of Her Majesty's dominions.  He owned that in his opinion the introduction of the system of Trial by Jury had been too long delayed.  The concession of this privilege, might perhaps by some be considered as the imposition of a burthen.  He had heard it urged on a former day by an honorable member, that the duty of serving on Juries was very inconvenient, and worked injury to individuals by taking them away from their business.  This was an argument against the present measure, which he was sure no man with a just sense of his position in society would be prepared to uphold.  Doubtless the office of a juryman was burthensome, but it was amply compensated for in the privilege of sharing in the administration of public justice.  The introduction of the present measure could not be construed into any reflection upon the honorable body of men who had hitherto been called upon to serve on Juries.  From his experience, now of thirteen years, he had no hesitation in bearing testimony to the purity, integrity and ability, which had distinguished the Military Juries during that long period.  He had reason to believe that this was by no means an acceptable service, which the gentlemen of the army and navy had, by force of law, been called upon to perform.  It took them out of their proper vocation, and the public service often sustained damage by detaching them from the duties of their profession.  These considerations afford abundant argument in favour of the present measure, even if the higher grounds of constitutional expediency and necessity did not prevail.  The return laid on the table showing the comparative number of cases tried by civil and Military Juries during the last two years, afforded no test of the merits of each mode of trial.  It was notorious that the choice of the Jury selected was mere matter of speculation in many cases.  The verdict of one Jury, whether guilty or not guilty, often influenced the next prisoner to be tried, in the choice of the Jury he had to select.  A convicting Military Jury would frequently cause a run upon Civil Juries, and vice versa.  In most of the cases it was observable, that the greatest criminals chose Military Juries, as affording the greatest chance of escape, from their ignorance of character and inexperience of the habits of life of the offender.  Without however, farther adverting to considerations of this kind which were quite beside the present question, he was prepared to support the present measure, on the broad ground, that as the time had arrived for the unqualified introduction of Trial by Jury according to the law of England, it was a sacred privilege which ought no longer to be withheld from the people of the Colony.  The effect of the present system was to encumber the administration of justice with unnecessary machinery.  Two sets of Juries were always required to be summoned and in attendance upon the chance of being called upon to serve in the box.  This was attended with great expense, inconvenience and delay; but although these considerations ought not to determine the present question, yet they must be borne in mind, especially by those who were continually complaining of those parts of the public estimate, which concerned the administration of justice.  The Colony was now rapidly wearing out its convict character, and in his opinion the period had arrived for making this further step in the unqualified assimilation of Trial by Jury in this Colony to that of the Mother Country.  The objections to the Bill did not proceed from any practical experience, but he feared from a too tenacious attachment to suspicions, that the interests of justice could not be safely committed to those who might be impannelled on Juries.  In practice he ventured to say, that in general, these prejudices would be found imaginary.  Theoretical objections ought not to be allowed to prevail against the testimony of those who had daily experience of the working of the present unqualified system; if the testimony of those who saw the system in actual operation were asked, he persuaded himself, it would be found almost unanimously in favour of the proposed measure.



[1] See also Sydney Gazette, 20 June 1839.

Published by the Division of Law, Macquarie University