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

R. v. Hogarty [1839] NSWSupC 80

trial by jury - criminal defendants, right to counsel - murder - Hassan's Walls

Supreme Court of New South Wales

Willis J., 1 November 1839

Source: Australian, 5 November 1839[1] 

Michael Hogarty was indicted for stabbing with a knife, with intent to murder Henry Bird, at Hassan's Walls on the 23rd July.  The prisoner and prosecutor were convicts in the stockade.  The prisoner was convicted on the testimony of the prosecutor, of stealing, and he got up during the night and stabbed the prosecutor in his bed.

Previous to charging the Jury, His Honor addressed them as follows:--

``Gentlemen of the Jury -- the distinguishing mark in the administration of English justice, is the institution of trial by Jury; and whatever this institution may have been in its origin, one quality, at least, for which it is now held in estimation, is, that it imposes on the Judge the necessity, when required, of summing up the case -- of showing himself acquainted with all its details, and of assigning his reasons for any opinion on the merits of it, which he may think proper to express: though at the same time, it leaves the Jury wholly unfettered by what may fall from the Bench, in coming to the decision they may finally pronounce.  It is, in truth, the privilege of the Jury, regarding above all things the oath which they have sworn, taking the whole case into consideration, conscientiously and independently to return an unbiased and impartial verdict.  This it is which is the characteristic excellence of trial by Jury.  Such being our relative positions, I am persuaded that you, Gentlemen, must feel, as I do, that dispensing the criminal justice of this colony is always an anxious, and frequently an arduous duty, not only with reference to the nature, but on account of the number of the accusations; a number which I fear on the present occasion will be found even greater than usual.  But the magnitude of the labour can only stimulate to additional exertion, notwithstanding the pain and difficulty which it may produce.  A recent decision of the Supreme Court has proclaimed the ``Prisoners' Counsel Bill" to be in force in this colony; a measure of the British Parliament evidently intended to promote the interests of humanity and justice.  In some cases, therefore, we may hope for the assistance of hearing Counsel for the prisoner, as well as for the prosecution.  Under any circumstances, to condemn a fellow creature to punishment, cannot fail to be repugnant to the unalloyed feelings of charity and compassion; yet those who are intrusted [sic] with the administration of criminal justice to the public, as well as justice, tempered with mercy to those whose fate they are to determine.  I have the authority of Lord Hale, one of the greatest Judges and best men that ever lived, for saying ``that Juries are not to overlook the evidence -- that they are not to forget the truth, and give way to false mercy; but without looking to the right hand or to the left, they are to weigh the evidence on both sides, and then according to the best of their understanding, to do justice to the public, as well as to the prisoner."  Your duties, Gentlemen, during the period of service which the law requires of you, are now encreased [sic] by the abolition of military Juries, and although you will now be more fully employed than formerly, yet there will be no greater tax upon your time.  The difference is this -- instead of being merely in attendance, you will be [in] employment.  Before proceeding with the case in issue, I have only to add my fervent prayer, that He, without whose aid all our doings [are ?] worth, may so fill our hearts with that spirit of justice and mercy, and incline our minds to those sure and safe conclusions in all matters that may come before us, that when hereafter it may happen, as oft it must, that you shall meditate and reflect on the important duties which as Jurymen you may have been called upon to discharge, your reflections may be such as will prove to you a source of comfort in life -- of consolation in death -- of happiness here, and of hope hereafter."

His Honor then adverted to the case befo[r]e the Court, and left it in the hands on the Jury, who returned a verdict of guilty.  Judgment of death was ordered to be recorded.



[1]  See also Sydney Gazette, 7 November 1839; Sydney Herald, 4 November 1839.

Published by the Division of Law, Macquarie University