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

R. v. Perrott [1839] NSWSupC 3

criminal procedure - trial by jury - highway robbery - Willis J., opinions of

Supreme Court of New South Wales

Willis J., 1 February 1839

Source: Sydney Herald, 4 February 1839[1] 

Charge to the Jury. -- Previous to summing up the first case tried in the present Sessions, Mr. Justice Willis delivered the following charge to the Petty Jury. --

Gentlemen -- It is but justice, I think, to take the earliest opportunity of expressing my satisfaction as to the manner in which the case before us has been brought before the Court.  Indeed, I must say that on this, as well as on every other occasion, the zealous, active, and efficient manner in which the Crown Solicitor has discharged his arduous duties relative to such criminal business of the colony as has fallen within my observation, entitles him to the highest commendation I can bestow.  The more minutely his labours are scrutinized, (and I may here say that I have read the briefs in all cases for trial previously to each Criminal Session) the more fully, in my opinion, must his legal ability and sound judgment be appreciated.  It is rumoured that he is about to retire from office, and if he is so, I can assure him that he will carry with him my best wishes for his future prosperity.  In the conduct of the criminal cases of this Court, so far as I have been able to judge, he may be equalled, but not surpassed.  I have few observations, however, with your permission, to make before I advert to the evidence in the case now before you. -- The great end of law, gentlemen, is to protect the persons and property of individuals, where the right and personal security of private property is proved to have been violated, the law is put forth for the punishment of the offender; but the object of punishment is not only example, but reformation.  It is then by punishing their infraction, that these invaluable blessings of the protection of our persons, and the enjoyment of our property are secured.  Thus punishment (according to a striking personification of the Hindoo Code) is the magistrate -- punishment is the inspirer of terror -- punishment is the nourisher of the subject -- punishment is the defender from calamity -- punishment is the guardian of those that sleep -- punishment, with a black aspect and red eye, terrifies the guilty -- but it only terrifies the guilty; and before it can be imposed, there must be proof or evidence sufficient of the wrong complained of, having been committed, to induce you, gentlemen of the jury, to find the prisoner guilty.  It is, indeed, the duty of the Judge, to unfold for the information of the Jury, as circumstances may require, the law which defines the offence; and it is the sole province of the Judge (should the accused be found guilty) to declare the penalty which the law awards; but it is for the Jury to decide on his guilty or innocence.  Unhappy would it be for the Judge if the prisoner's fate depended upon his directions -- unhappy also for the prisoner if the Judge's opinion must rule the verdict: trial by jury would be useless.  I agree with what has fallen from the lips of one of the most wonderfully gifted men of our generation -- one too who has filled the highest legal office in the state -- ``That the best tribunal for investigating contested facts (and by the pleas of not guilty all the facts alleged against the prisoner are contested), is a jury of twelve men of various habits of thinking -- of various characters of understanding -- of various kinds of feeling -- of moral feeling -- all of which circumstances enter deeply into the capacity of such individuals.  The diversity of minds of the jury, even if they are taken without any experience as jurors -- their various habits of thinking and feeling, and their diversity of cast of understanding -- their discussing the matter among themselves, and the very fact of their not being lawyers -- their not being professional men -- their believing as men believe, and acting on their belief in the ordinary affairs of life, give them a capacity of aiding the Court in eliciting truth, which no single Judge, be he ever so largely gifted with mental endowments -- be he ever so learned with respect to past experience, can possess."  To Lord Brougham's just character of a British jury, I may add in the words of a celebrated writer on the constitution of England, that ``if a Juryman does not possess that expertness which is the result of long practice, yet neither does he bring to judgment that hardness of heart, which is more or less also the consequence of it; and bearing about him the principles (let me say the unimpaired instinct) of humanity, he trembles while he exercises the awful office to which he finds himself called, and in doubtful cases, always decides for mercy."  Will any one who hears me, knowing the honor and importance of the office of a juror, the unbound[e]d confidence which the law reposes in him, the necessity of his intervention and assistance for promoting the great ends of justice, shrink from the honorable discharge of a duty which, should he himself suffer from violence or rapine, he would implicitly rely on being performed by others?  Should you, gentlemen, find the prisoners at the bar guilty after I have stated and endeavoured to explain to you what I conceive to be the effect and extent of the evidence, then will it be for me to declare the penalty by law awarded to the offence.  But without immediate reference to the guilty or innocence of the party now accused, I confess that I am anxious to avail myself of this occasion to say a few words more on the subject of punishment.  One of the first acts of our present Sovereign, has been to soften the former rigour of our Penal Code.  The statutes passed by the Imperial Parliament for that purpose, have, with one exception, (and why there should have been any exception, I am at a loss to imagine) been adopted by the local Legislature, and this is the first Criminal Session of the Court since they have come fully into operation as the law of this Colony.  By these humane, and as I believe most politic acts, the punishment of death has, in many cases, been abolished, and can now only be inflicted for crimes of the utmost atrocity.  I coincide so entirely in opinion with the great authority before me, that at the risque of being tedious, I will venture to read it.  ``For my own part, I have ever been of opinion, that punishments far exceeding the measure of humanity have less effect in deterring the multitude from crimes than in rousing them to greater efforts both as actors and sufferers.  Nor do such punishments (in my opinion) tend to intimidate so much by their severity, as by their frequency, to diminish the terrors of the spectators.  The evil is more peculiarly great when the mind of the criminal is hardened against the sense of pain; for, in the judgm[e]nt of the unthinking vulgar, a stubborn confidence generally obtains the praise of heroic constancy."  I have dwelt more perhaps, on this topic, than is usual on occasions of this kind, because I am anxious not to be misunderstood in a matter that has heretofore given rise to difference of opinion; and chiefly, because the severity of punishment allotted to certain crimes has (though most improperly, I think,) heretofore influenced the verdicts of English Juries.  This pretext no longer exists.  It is not with respect to capital punishments only, but also with regard to those of an inferior nature, that the rigour of the law has (most happily I think,) been recently mitigated.  Let it not, however, be supposed that the leniency of the Legislature has abrogated punishment so far as to permit the commission of crime to escape its due reward.  Transportation still exists -- a punishment which, when it has reference to a penal settlement, many deluded creatures declare to be worse than death itself.  I say deluded, because miserable indeed must the state of that man's mind be who, under any circumstances, could prefer death to a continuance of existence, however painful, which enables him by earnest repentance, to exchange, in God's good time, a life of misery for the hope of pardon and eternal felicity. ...

Before Mr. Justice Willis and a Civil Jury.

John Perrott and Robert Jones were indicted for a highway robbery on John Jobbins, on the Liverpool Road, on the 10th October.

The prosecutor was riding along the Liverpool Road, when the prisoner and another man came up to him and robbed him of twenty-six shillings in silver and a quantity of clothes.  They were afterwards apprehended with part of the property in their possession.  Guilty -- To be transported for fifteen years.



[1]  See also, Sydney Gazette, 1 February 1839, noting the following: ``He prefaced his remarks with some observations relative to the Crown Solicitor, of whose rumoured retirement from office he had heard.  He observed that on that as well as every other occasion which had come under his notice, Mr. Fisher had acted in the most zealous, active, and efficient manner, and had discharged his duty relative to the criminal business of the Colony in a way that entitled him to the highest commendation he could bestow."  See also Australian, 2 February 1839.

For an editorial on military juries, see Sydney Herald, 25 September 1839.

Published by the Division of Law, Macquarie University