Skip to Content

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

R. v. Russell (1839) 1 Legge 110; [1839] NSWSupC 65

coroner - dead body, dealing with - criminal procedure

Supreme Court of New South Wales

Dowling C.J., 14 August 1839[1] 

Source: Sydney Herald, 19 August 1839

 

Wednesday, August 15 [sic] -- Before the Chief Justice and a Civil Jury.

James Charles Russell, Druggist, of Pitt-street, Sydney, was indicted for a misdemeanor.

The information set forth that at Sydney, on the 5th April, on James Macintosh died a sudden death, and that according to the laws, customs, and usages of the Colony, it became necessary that an inquisition before a Coroner and Jury should be held, and that the said Coroner and Jury ought upon view of the said body, to enquire and determine whether the death was caused by violent means or from natural causes; and that the defendant Russell knowing the premises, but having no regard for the laws, and wishing to prevent the cause of the death from being ascertained, unlawfully, wickedly and contemptuously did remove and take away the brains of the said James Macintosh, with intent to frustrate the ends of justice, in contempt of the laws, &c.  A second count charged the defendant with having no regard for the religion and laws of the Colony, and with having dissected the body in a manner contrary to religion and decency.  A third count charged the defendant with having immediately upon the death of the said James Macintosh, and while the body was yet warm, dissected it, to the grievous affliction of his relatives and his friends, in contempt, &c.  A fourth count charged him with knowing that John Ryan Brenan was one of Her Majesty's Coroners, and with neglecting to give him notice of the death of Macintosh.  A fifth count recited the Coroner's Inquests' Act, and the Medical Witness Act, and asserted that the defendant had not proved to the satisfaction of the Medical Board, that he was a duly qualified medical practitioner, and yet, in order to prevent a duly qualified witness from giving evidence as to the cause of the death of Macintosh, the defendant opened his head and took away the brains.

Upon being called upon to plead, Mr. Russell said that his Solicitor had been promised a copy of the information which had not been forwarded to him.  He prayed that he might have a copy.  His Honor said that Mr. Russell was entitled to a copy of the information, which he ordered should be furnished, and also to four days to plead.

 

Willis J., 19 August 1839

Source: Australian, 20 August 1839

 

MONDAY. -- Before Mr Justice Willis.

On the opening of the Court the Attorney-General moved, that James Charles Russell, Druggist, of Pitt-street, be called on to plead for an indictment for a misdemeanor.

Mr Justice Willis said, that he understood there was a demurrer to the information, and a special plea, which would occupy some time in arguing, and he therefore suggested, whether it would not be better to have the case conducted before the full Court, when they would have the benefit of the joint experience of the three Judges.

Mr Windeyer said, that he was of opinion it would be, and, independent of that advantage, he should have time to study the case (which he had not yet had time to do) and be enabled to condense his argument which otherwise, would occupy from three to four hours, if not from five to six.

His Honor said, that it was very desirable the argument should be condensed, and he thought a postponement would be better for all parties.

The Attorney-General said, that he was not at all frightened at the probable length of Mr Windeyer's argument, and he should press on the case now.  With respect to the advantage of having it tried before the full Court, he must say, that he should be perfectly satisfied with the decision of His Honor, and even if Mr Windeyer extended his argument to twelve hours he would bear it patiently.  The time allotted to the defendant to plead had expired, and under all the circumstances he ought to have been ready and in attendance that morning.  On Saturday the defendant had proposed to plead guilty provided he (the Attorney-General) would consent not to call him up for judgement, but this he had at once refused, as he did not chuse [sic] to compromise the matter but let it come fairly before the public.

Mr Windeyer wished to say a few words on what had fallen from the Attorney-General, at which he was much surprised.  It was impossible that the defendant could have made such a proposition to the Attorney-General, without prejudice (after the communication which had been made to him) and he was astonished that the Attorney-General should have made such a disclosure which was communicated strictly in confidence.

The Attorney-General explained that there was no confidence in the matter.  Mr Johnston (Mr Nichol's clerk) had applied to him, on Saturday, to consent not to call the defendant up for judgment if he would plead guilty, but it was without any reference to prejudice which was a term he did not understand.

Mr Windeyer said that Mr Johnstone had stated the substance of the communication as related by the Attorney-General, but said that it was in confidence.

The Attorney-General said that he would pledge himself for the truth of what he had stated relative to Mr Johnstone's communication, which had been neither more nor less.

Mr Windeyer said that the Court had granted the defendant four days to plead, which was Thursday, Friday, Saturday, and Monday, so that he had all that day to plead, and could not be called on bef[o]re the end of the day.

Mr Justice Willis said, that if what Mr Windeyer stated was true, and he was bound to believe that it was, he could not call on the defendant to plead, as required by the Attorney-General.

The Registrar of the Court said, that Monday had been specially appointed by His Honor the Chief Justice for the defendant to plead.

Mr Windeyer said, that he did not come into Court for the purpose of pleading, but the plea was drawn and ready to file.  However, if the Court would take the trouble to look over the information, it would find that it was such a novel one -- so total unprecedented, that it must have taken the Attorney-General considerable ingenuity, as well as time, to draw it; and it was rather unfair to call on the defendant to answer an information in three days, which must have taken the Attorney General a week to consider and concoct.  If the Attorney General would say that he had put the information together in three days, he (Mr Windeyer) would plead to it at once.

His Honor said, that he thought it would be much better to have the experience of his learned colleagues, who had had far greater experience than he had, in hearing the argument on this case.  His Honor the Chief Justice had practised at the Old Bailey, and His Honor Mr Justice Stephen had been the Attorney-General of the sister colony for many years, and consequently was better versed in the framing of informations than he was.  However, if he was required, he would hear argument, and deliver his decision to the best of his power.

The Attorney-General said, that he could not consent to a postponement of the pleading, which would cause wasteful expenditure of the public time.  His time was not his own, and he was accountable for the expenditure of it.  On Tuesday he would have to attend the Legislative Council, and as he was now ready to go on with the case, he required that it should be proceeded with.  It was the defendant's own fault that he had not communicated with counsel in time, and he could not now take advantages of his own neglect.  As Mr Windeyer talked of a demurrer, it would be open to him to move in arrest of judgment, after the case had gone to a jury, which would have the same effect as a demurrer to the information in the present stage of the proceedings.

Mr Windeyer stated that Mr Johnstone was then in Court, and had instructed him that the communication made by him to the Attorney-General, was that he thought justice would be satisfied if Mr Russell pleaded guilty, and the Attorney General undertook not to call him up for judgment, by the heavy expence [sic] to which he had been put, and this had been communicated in confidence, and without any idea of its going before the Court.

The Attorney-General said, that he would pledge himself that what he had stated to the Court was the fact, and that M[r] Johnstone had made no other communication to him either about expense or confidence, but had simply put the question to him and he had refused to compromise in any way.  He took this opportunity of giving notice that he would never communicate with any clerk, but solely with the attorney himself or officer of the Court.

Mr Windeyer said, that Mr Nichols was out of town, and his clerk as a matter of necessity, communicated with the Attorney-General.

His Honor said, that the conversation had been irregular, and he felt it had been his fault for allowing it.

The Attorney-General said, that he now moved, that James Charles Russell, be called upon to plead.

Mr Windeyer said, that if it was decided that the four days allowed had expired, he begged that His Honor would read over the information which was unprecedented, and h would then probably allow them another day to plead.

His Honor said, that he was always anxious that every person should be allowed full time and opportunity to prepare his defence, and have ample justice done him, and it was upon this ground that he had suggested that the case should be postponed until the first day of next Term.  It was also a matter of great inconvenience to the jury to be kept waiting for nothing.

Mr Windeyer said, that with respect to the jury it would be for him to say what jury would try the case, and he might at once say that no jury then present, would try it.

His Honor said that as the Chief Justice had specially appointed this day for the case, it would be presumptious [sic] and indecent in him to postpone it.  However, as the party was not sufficiently prepared he could have no objection to postpone it for an hour, in order to give the defendant an opportunity of coming into Court so as to meet justice.

The Court was adjourned to one o'clock.

Upon the re-opening of the court, the information was read over, and was to the following effect:-- that at Sydney, on the 5th April, one James Macintosh died a sudden death, and that according to the laws customs, and usages of the Colony, it became necessary that an inquisition before a Coroner and Jury should be held; and that the said Coroner and Jury ought upon view of the said body, to enquire and determine whether the death was caused by violent means or from natural causes; and that the defendant [Ru]ssell knowing the premises, but having no regard for the laws, and wishing to prevent the cause of the death from being ascertained, unlawfully, wickedly and contemptuously did remove and take away the brains of the said James Macintosh, with intent to frustrate the ends of justice, in contempt of the laws, &c.  A second count charged the defendant with having no regard for the religion and laws of the Colony, and with having dissected the body in a manner contrary to religion and decency.  A third count charged he defendant w[i]th having immediately upon the death of the said James Macintosh, and while the body was yet warm, dissected it, in the grievous affliction of his relatives and his friends, in contempt, &c.  A fourth count charged him with knowing that John Ryan Brenan was one of Her Majesty's Coroners, and with neglecting to give him notice of the death of Macintosh.  A fifth count recited the Coroner's Inquests' Act, and the Medical Board, that he was a duly qualified medical practitioner, and yet, in order to prevent a duly qualified witness from giving evidence as to the cause of the death of Macintosh, the defendant opened his head and took away the brains.

To this information, Mr Windeyer put in a plea in abatement, setting forth, that the defendant was a surgeon, and that the addition in the information was wrongly stated, praying thereupon the judgment of the court that the information might be quashed.

The Attorney General thereon put in a demurrer to the plea, and also prayed the judgment of the court on the insufficiency of the plea.

Mr Windeyer rejoined on the demurrer, and after argument on either side, the information was ordered to be amended by the addition of the title surgeon.

The Attorney-General wished to know what was the next step to be taken, when Mr Windeyer demurred to the information as not being sustainable in law.

His Honor said that, having stood upon the demurrer, if that was not sustained, final judgment would issue without the interference of a jury, who might consequently be discharged.

The civil jury was a[c]cordingly discharged.

His Honor said, that it was only occupying the time of the Court uselessly to proceed with the argum[e]nt at that stage, a[s], whatever it might be, he should certainly refer it to the opinion of his bro[t]her Judges, and should not pronounce upon it himself without their advice.

The Attorney-General said, that the alteration in the circumstances had removed his objection to the postponement of the case, and if His Honor would fix any day which did not interfere with his duties in the Legislative Council, he would consent to the postponement of it until that time, when he would be prepared to answer Mr. Windeyer's argument.

The further hearing of the case was postponed until Saturday next.

 

Dowling C.J., Willis and Stephen JJ, 24 August 1839

Source: Sydney Gazette, 27 August 1839

 

(Before Their Honors the three Judges)

 

James Charles Russell, of Pitt-street, surgeon, was indicted for the illegal dissection of a human body. The information contained five counts. It set forth that on the 5th of April, in Sydney, one James Macintosh died a sudden death and that according to the laws, usages and customs of the colony, it became necessary that an inquisition should be holden before one of Her Majesty's Coroners and a jury, and that such Coroner and Jury ought, upon view of the body, to have enquired whether death was caused by violence or otherwise; and that the defendant, knowing the premises, but having no regard for the laws, &c. The second count charged the defendant with, having no regard for the religion and the laws of the colony, dissected the body of the said James Macintosh, contrary to religion and decency. The third count charged the defendant with, having immediately on the death of the said James Macintosh, and while the body was yet warm, dissected it to the grievous affliction of his relatives and friends, in contempt of religion, and the laws, usages and customs of the colony. The fourth count charged the defendant with knowing that John Ryan Brenan was one of Her Majesty's Coroners, and neglecting to give him notice of the death of the said James Macintosh. The fifth count, after reciting the Corners Inquest and Medical Witness Acts, charged the defendant that, he not being a duly qualified medical witness and in order to prevent a duly qualified medical witness from giving evidence as to the cause of the death of the said James Macintosh, opened the head, and removed the brain.

To this information the defendant had pleaded a demurrer.

Mr. Windeyer on behalf of the defendant raised several objections to the information, in the discussion of which he occupied the court five hours and forty minutes. His first objection was with regard to that part of the information wherein it was alleged that John Ryan Brenan was one of Her Majesty's Coroners. Mr. W contended that Mr. Brenan was not legally appointed, as the office of Coroner was by right of election by the people in county courts, and it was a right of the people which the Crown could not assume. The appointment of a Coroner in this colony, he stated, was a matter of accident. When Mr. Gore was Provost Marshall he was ordered by the Governor to hold an inquest, which he did, and he continued to perform that duty until he was ordered home to England, to give evidence in the case of Admiral Bligh, when the duty devolved upon Mr. Lewin. He contended that as the election of Coroner was in the people, the grant of that office would be void, and that the office consequently was, as if it had never been made at all, and on that account the information must fall, as the Coroner could have had no jurisdiction. In the course of his remarks, Mr. Windeyer referred to several ancient statutes in support of his argument -- that the election lay in the people, and that although that privilege had, at certain times, been wrested from them, it had been again conceded, and he held it to be a privilege which the colonists still inherited, and had brought with them from England, in the same way as with all their common law rights.

Mr. Justice Stephen enquired if Mr Windeyer was prepared to show in whom the office of Coroner was vested, before it was in the people, as the decision of the kingdom into counties only took place in the time of Alfred.

Mr Windeyer replied that he had no doubt it was vested in the people from the [???] and in support of his opinion he quoted authority [???] Lord Coke's Institutes, wherein it is said that the right was vested in the people in [???].

Mr Justice Willis remarked that [???] consideration appeared to have been lost of, the conquest of of [sic] England by William, who introduced his own laws, retaining what he liked from those of Edward the Confessor.

Mr. Windeyer went on to say that that privilege had not been conceded was certain; it was inherent in the people, even Kings were formerly elected by the people in the open field, and therefore it could not be said that these privileges were conceded to them. The office was paid by the people, and it was a privilege of the people that any office which should act as a tax or tallage on them, should be elected by them.

Mr. Justice Willis again referring to the conquest observed that William made all the people hold of him in capita, and the question was whether he might not by his might, not his right, have acquired such an interest in the people as to make them fall in with his views in withholding these privileges.

Mr Windeyer answered that William never pretended to come in by right of conquest but by right of succession, and all his acts afterwards were declared to be derived from the common law before in existence [sic], and the Norman Kings were made to say, over and over again, that they would hold the laws of Edward the Confessor, and the election of these offices was one of them, binding; in the present instance, although the custom was not in use, it was not abolished, it was clear the office was in abeyance, but it did not on that account follow that the right of election was gone; it was a right of which they could not be deprived except by Act of Parliament. The Queen, for instance, could not appoint a legislative Council without an Act of Parliament, she could not nominate a member for Sydney or Parramatta, but only issue a writ of election -- a remnant of the power which had once been obtained by the Kings from the people. Mr. W. then went on to speak of other parts of the information; the defendant, he said, appeared on the face of it as a surgeon; it was a question whether as such, he had not a right to do what he had done. It could be no criminal offence even assuming that he had no permission to dissect the head, it might be that he was guilty of an act of impropriety, that he was guilty of a breach of taste, but was the defendant to be indicted criminally for a breach of taste, in doing that which was the only legal mode of discovering the cause of death? He would shew that it was a matter of necessity, and what was a necessity was no crime. He wished to remark, that there was no precedent for such an information, all previous cases touched upon the violation of the sepulchre, of digging up dead bodies for sale, or for selling them with a view to prevent their burial, matters which were contrary to decency, but in this case there was no indecency, nothing was done but what was necessary to be done by every surgeon in order to acquire a perfect knowledge of the anatomy of the human frame; without this kind of knowledge how were many operations, especially that of trepanning, to be performed. The defendant found the man dead and it was necessary that he should ascertain the cause of death as soon as may be. There was no contempt, for it was not assumed in the various counts that he did so, knowing it was to be a matter of adjudication, but even if were so, he did so to qualify himself to give evidence on that enquiry as any other man would have done. He, Mr. Windeyer, recollected a Judge on the Bench (Mr. Justice Burton) censured a man who was not a professional man, that he did not a[s]certain the cause of another's death. A witness in his evidence of a murder, said he had seen the wound, and had poked his stick into it, his Honor asked him why he did not examine the wound more closely, when the man replied, he was no surgeon. His Honor remarked, that notwithstanding that he ought to have made himself acquainted with the cause of death. If such a course were imperative in a non-professional person, it could be no offence in a surgeon, although the matter were to be followed by a judicial investigation. In the information it was said to be unnecessary, wanton, and indecent; that expression was brought about by the ingenuous way in which the information had been originally framed, when the defendant was termed a druggist, a mis-statement which the Court had ordered to be amended, and that he should be called a surgeon. He (Mr. W.) could not help it if it were said that it was unnecessary for a surgeon to make himself acquainted with his business; that which had been done by Mr. Russell had been done over and over again in the knowledge of the Court without any indictment having been preferred against the parties. The defendant would have been sorry that the case should go to a common jury after all the prejudices the Attorney General in the information had appealed to. It was well known what were the feelings of individuals on the subject of dissection, of the man nor in which it was viewed by their ancestors when criminals alone were ordered for dissection, but to this very vulgar prejudice the Attorney General relied on in his appeal to religion. He could well conceive its effect on a common jury, if any one man had stood out against this appeal to religion, he would have been held as a fool or a bigot, with no respect for religion or decency. He admitted that the operation might have been termed indecent if it had been performed publicly, but it could not be so termed when done in private. With as much reason an indictment might be preferred for various acts connected with the Arts, more especially with sculpture. In the same way an information might be preferred against an artist for preparing a model from a living naked figure; if it were done before a stranger there could be no doubt it would be indecent, but in the Studio it would not be so, the very character of the party would clear away the imputation of a crime. In the Stat 1 Vict. No. 3, an Act for regulating medical witnesses on Coroner's Inquests he observed it said that if it appeared the deceased person was not shortly before his death attended by some medical gentleman it should be lawful for the Coroner to appoint some legally qualified practitioner to give evidence, and provided a remuneration, but it went on to say that if any post mortem examination of the body should be made without the Coroner's permission that nothing should be paid. The defendant could not be charged with withholding evidence; he prepared himself to give evidence, and he did give his evidence. The penalty for his conduct was pointed out by the act just quoted, namely, that he should receive no fee for his examination. The imputations against the defendant, he contended, were stretched; anything that inclined towards him had been concealed; he was charged with taking away the brain -- how was it possible he could make a post mortem examination without removing the brain? It was like Shylock's pleading, all very well in a play, but it would not do in a court. He submitted therefore, that what the defendant was charged with, was but a post mortem examination, unauthorised be it, wanton be it, but still it was only a post mortem examination, and for which a penalty was provided by the Legislature, by saying that he should receive no fee. If Mr. Warburton's Act, he observed, did not extend to this colony, and it had been said that it did not, he would ask what means would surgeons have of obtaining professional knowledge; no doubt, that of post mortem examination alone. He concluded by urging the court not to confuse in this matter, any want of decency or of taste, with anything criminal; the defendant had a right to do what he did, and he did no more.

The Attorney General briefly answered the objections of Mr. Windeyer by observing that the defendant had admitted the allegations in the information by his demurrer, and he contended that the office of Coroner was vested in the Chief Justice.

Mr. Windeyer replied to the speech of the Attorney General.

The court ordered the defendant to enter into his person recognizance of £100, to appear on the first day of next term (the 15th September) for judgment. The court was then adjourned until Saturday next.

 

Dowling C.J., Willis and Stephen JJ, 16 September 1839

Source: Sydney Herald, 18 September 1839[2] 

 

The Queen v. Russell. -- The Attorney-General prayed the judgment of the Court upon Charles James Russell.  Mr. Russell being in attendance, the Chief Justice said -- This was an information filed by the Attorney-General against the defendant for a misdemeanour.  There were five counts.  The first stated, that on the 5th April, 1839, one James McIntosh [died a sudden death at Sydney and] that his body laid dead, and that according to the laws of the Colony in such cases, an inquisition is had and taken on the view of the body by and before one of the Coroners of the Queen and a Jury in that behalf, and that such inquisition ought to be had and taken on view of the said body, in order that it might be inquired into and found whether the sudden death was caused by violent means or from natural causes or otherwise, and that the same might be found by verdict and return of the said Coroner and Jury.  That the defendant, a Surgeon, well knowing the premises, did unlawfully, &c. cut open the head of the body of the deceased, and removed and took away from and out of the said head, the brains thereof, in order and for the purpose that the cause of the sudden death of deceased might not be found and ascertained as aforesaid, and thereby to frustrate the ends of public justice, in contempt of the laws, &c.  The second count stated that deceased had suddenly died, and that defendant being an evil-disposed person, and not having regard for the religion, laws, &c., whilst the body laid dead, contrary to decency, good morals, and religion, and in contempt of the laws, &c., did without any reason or necessity, wantonly, indecently, unlawfully and contemptuously cut open and dissect part of the body of the deceased so lying dead, to the great scandal, &c. of religion, in contempt, &c.  The third count stated that whilst the said body laid dead, the defendant, without any authority, and almost immediately after life departed, and whilst the body of the deceased so lying dead was still warm, did cut open, dissect, and mutilate the body of the deceased so lying dead, to the grievous affliction of the relatives and friends of the deceased, in contempt of the laws, &c.  The fourth count stated, that at the time the body of deceased lay dead as aforesaid, one John Ryan Brenan, Esq., was the Coroner for the Queen, acting as such Coroner, for the district of Sydney, in the Colony aforesaid, and that defendant being an inhabitant of the district of Sydney, and having notice of the premises, and not regarding his duty in that behalf, did not at any time send or give notice to or for the said J. R. Brenan, or to or for any Coroner of the Queen for the said district of Sydney, or any Coroner of the Colony, to view the body of the deceased, but unlawfully &c. omitted and neglected so to do, and unlawfully &c. did cut open and dissect the head of the body of the deceased, and removed the brains from and out of the head of the said body, and cut open and dismembered the said body, without and before any view being had of the said body by the said J. R. Brenan, or any Coroner of the Queen for the said district, and before any inquisition being had and taken on the view of the body of the deceased, as by law required in that behalf, to the great hindrance of justice, in contempt of the Queen and her laws, &c.  The fifth count stated, that the defendant not being a legally qualified medical practitioner, in pursuance of the local ordinance passed on the 12th October, 1838, entitled ``An Act to define the qualifications of Medical Witnesses at Coroners' Inquests," &c., and well knowing the premises, and contriving and intending to prevent a legally qualified medical practitioner from giving full and sufficient evidence at and upon the holding of an inquest on view of the body of the deceased so lying dead as aforesaid, of the cause or probable cause of the sudden death of the deceased, did on &c., unlawfully &c., dissect and mutilate the body of the deceased, and did unlawfully &c. cut open the head of the body of the deceased, and take and carry away the brains from and out of the head of the same body, with an unlawful and wicked intention to pervert the due course of justice, in contempt, &c.  To this information there was a general demurrer, and the question is, whether there is sufficient on the face of the record to warrant the Court in giving judgment against the defendant as for a misdemeanour.  In the course taken by the defendant he admits the facts stated, in the information, and contends that admitting the facts so alleged against him to be true, they do not constitute any offence punishable by law.  It is clear that if any one count in the information be good, the Court may proceed to pronounce judgment and award sentence, without the intervention of a Jury upon the merits.  By demurring the defendant has concluded himself upon the facts, instead of going before a Jury and offering any matter of defence excusatory of his conduct or demonstrative of his innocence of the matter charged.  Had he been found guilty by a jury the objections taken on demurrer were equally open to him in arrest of judgment.  Having therefore closed the door of inquiry by the country, and declined taking chance of an acquittal, we are now to determine the case as it appears upon the record.  The facts admitted by the demurrer to the different counts, respectively, are these:-- First, that McIntosh had died a sudden death, and that by the law of the Colony it was requisite that an inquest should be holden on the body, before a Coroner and Jury, in order to ascertain the cause of the death, and that the defendant knowing the premises, cut open the head of the body and removed the brains therefrom, in order and for the purpose that the cause of the sudden death might not be ascertained, and thereby to frustrate the ends of public justice.  Secondly, that without any reason or necessity he cut open and dissected part of the body of the deceased.  Thirdly, that without any authority, and almost immediately after life had departed, and whilst the body was still warm, he did cut open, dissect, and mutilate the body of the deceased.  Thirdly that knowing J. R. Brenan, Esq. to the be the Coroner for Sydney, and acting as such, and defendant being an inhabitant thereof, contrary to his duty as such, did not give notice to the said Coroner of the death of the deceased, that an inquest might be held on the body, but on the contrary thereof, and before any view had been had of the body by the said Coroner, he did cut open and dissect the head of the body of the deceased, and removed the brains from and out of the head of the body, and cut open and dismembered the body, to the great hindrance of justice.  Fifthly, that being an unqualified medical practitioner, according to the law of the Colony, and intending to prevent a legally qualified medical practitioner, according to the law of the Colony, and intending to prevent a legally qualified medical practitioner from giving full and sufficient evidence at an inquest upon the body of the deceased as to the cause of the death, he dissected and mutilated the body, and cut open the head thereof, and took and carried away the brains from and out of the head, with intent to pervert the due course of justice.  Upon these facts, admitted by the demurrer, it was contended, first, that those counts which mentioned a Coroner either generally or by name, were bad, because there was no legally appointed Coroner for Sydney or any other part of the Colony, and that consequently the whole matter charged by these counts to be criminal had no basis to support them; and secondly, admitting this objection to be tenable, there was nothing imputed to the defendant in the other counts which amounted to a crime, however offensive it might be to good taste or propriety.  I am of opinion, that in the way in which this case is presented to the Court, we are not at liberty to consider the question, as to the mode of appointing Coroners in New South Wales.  The demurrer does not raise that question, if any doubt could be entertained upon it.  The defendant is estopped [sic] by the record on this point, for he must be taken to have admitted that by the law of the Colony an inquest must have been had upon the body in question, and that at the time the body laid dead, J. R. Brenan, Esq. was the Queen's Coroner, acting as such for the district of Sydney.  In the absence of all proof to the contrary, we are, for the purposes of this case, bound to presume that the Coroner was lawfully appointed by Her Majesty, and that it is not now open to the defendant, after demurrer, to dispute the validity of his appointment. Could such a question have been raised, the mode of appointment must have been matter of proof before a Jury, and if the question were disputable, the point might be determined on special verdict.  The defendant has, however, concluded himself from disputing this part of the case, by admitting on the record, that there is such an officer in existence in the Colony, and that by the law of the Colony an inquest on a dead body must be holden by and before such an officer.  We can look to the record only, and see whether there is a sufficient constat of facts aptly charged to warrant us in giving judgment upon it.  Here we have the fact admitted, that at the time this body laid dead, there was a Coroner of the Queen for Sydney acting as such in the district where the sudden death occurred.  I do not therefore think it necessary to enter into any consideration of the very ingenious argument addressed to us on this part of the case, it being no part of the duty of this court to decide points not necessarily involved in a case submitted for judgment.  It being admitted that there is in fact a coroner for the district where this sudden death happened, having cognizance by law of sudden deaths, within his jurisdiction, the only question now is, whether the conduct imputed to the defendant, in all or any of the counts, is criminal, in the eye of the law.  I agree, that giving hard names to an Act, innocent in itself, will not make it criminal.  The terms wicked, contemptuous, pernicious, wanton, indecent, scandalous, disgraceful and irreligious, (expletives, pregnant of great pungency), would not, I admit, give any deeper colour to the transaction charged as criminal, unless it were really criminal in the eye of the law.  But is the act imputed to the defendant innocent as it appears on this record?  By the Statute de officio coronatoris, IV Edw. 1, st. 2, which was passed in affirmance of the common law, the Coroner, upon information, shall go to the place where any beslain or suddenly dead or wounded, and forthwith summon a jury to enquire into the circumstances attending and the cause of the death, and the jury must view the body.  Although the Statute alluded to does not say expressly, that the Coroner shall take his inquest on view of the dead body, yet it is clearly laid down by all the books, that an inquest of death can be taken by a Coroner super visum corporis only, and if there be no view, the inquisition is void.  This is an essential part of the duty of the Coroner, to the intent of making due enquiry as to the cause of the death for the purposes of public justice.  In truth the body itself is part of the evidence before the jury, and if they see it before, and not after, they are sworn, a material part of the evidence is given when the jury are not upon oath.  It is essential then, for the ends of justice, that the inquest should have the dead as well as the living witnesses untampered with before them, in order to enable them to arrive at a just conclusion.  This being the law, has the defendant been guilty of any criminal infraction of it?  It is charged in the various counts, that the defendant cut open the head of the body and removed the brains, in order and for the purpose that the cause of the sudden death might not be ascertained, and thereby to frustrate the ends of justice, -- that without any reason or necessity he did so; -- that without any authority and almost immediately after life had departed, and whilst the body was still warm, he did so, -- that knowing of the sudden death, and that J. R. Brenan, Esq. was the Coroner, he contrary to his duty, before any inquest was held, cut open the head, to the great hindrance of justice, -- and that being an unqualified person by the law of the Colony, and to prevent due enquiry into the cause of the death, he cut open the head with intent to prevent the due course of justice.  Regarding these allegations as now indisputable, I have no hesitation in holding this to be a criminal misdemeanor.  The act imputed, tended to defeat the very object of the Coroner's inquest.  How could the jury, upon view of the mutilated body, determine the cause of the death?  It is an offence at law to tamper with a living witness, prior to an ordinary trial, and surely it is no less so, to practice upon the most important witness upon so solemn an enquiry as an inquest super visum corporis.  The view of the body is often the most important and material proof before the jury.  The body, in such cases, often speaks more eloquently and convincingly for itself than the most consistent oral testimony.  The silence of death is more impressive than the vocal testimony of living witnesses.  The gravamen of the defendant's offence is, that without reason, or necessity, and without authority, and being an unqualified person, he did this act, in order to prevent due inquiry into the cause of the death, and for the purpose of hindering public justice.  This I hold to be a high misdemeanor.  It was competent for the defendant to have proved before a jury, if he could, that he was the medical attendant of the deceased before his death, and that he had the authority of his relatives to open the head, either for their satisfaction or for purposes of medical science, or that there was some cogent reason or necessity for opening the head, extracting the brains, and carrying them away.  By demurring to the information he has shut himself out from these grounds of defence, and taking the facts in the marked manner in which they are alleged, I cannot hesitate to pronounce this a criminal act at common law.  Whether it was con[t]rary to religion, we are not called upon to decide, but there can be no doubt that the wanton, unnecessary, and unauthorised, mutilation of a dead body, whether for idle curiosity or otherwise, is an offence.  Doubtless the interests of science ought to be promoted by all legitimate means.  The welfare and the happiness of the living are involved in an anatomical knowledge of the human frame.  However shocking it may be to popular prejudices, dissection is necessary and often indispensable, for the advancement of the sciences of surgery and medicine, by which the alleviation of human misery and the prolongation of human life are deeply concerned; and I should be sorry to give encouragement, in this enlightened age, to any popular feeling upon such a subject.  It is the manner and circumstances of this transaction, which constitute its offensive character.  Here the act of mutilation stands on the record to have been wanton, unnecessary, and unauthorized.  Such an act is criminal, as being contra bonos mores.  It was on this principle that it was determined to be an indictable offence to take up a dead body even for the purpose of dissection, (Rex v. Lynn, 2 T. R. 733, 1 Leach, 497), the Court holding ``that common decency required that the practice should be put a stop to; that the offence was cognizable in a criminal Court, as being highly indecent, and contra bonos mores; at the bare idea of which nature revolted, and that the purpose of taking up the body for dissection did not make it less an indictable offence."  If it be criminal to take up a dead body after burial, for the apparently innocent purpose of dissection, I cannot think it less criminal to dissect it before burial, without any reason, necessity, or authority assigned, with this additional ingredient, that it is done for the purpose and with the intent to hinder public justice.  In this information it is alleged, that the defendant took and carried away the brains from and out of the head of the deceased.  If this had the effect of defeating the enquiry as to the cause of the death, it would be no more effective for that purpose, than if he had taken away the body altogether, which it will not be disputed would be a criminal act, if unauthorized by competent authority.  On the whole of this case, I am of opinion that the information is good in law, and that we are bound to award judgment and sentence upon the defendant.

Both the other Judges delivered judgments to the same effect, but in consequence of the great length of Judge Willis's arguments, we are compelled to omit it in the present number.  Mr. Windeyer then briefly addressed the Court in mitigation, and the Attorney-General in aggravation, after which Mr. Russell was sentenced to pay a fine of £50 to the Queen.

 

Notes

[1]  The Sydney Herald got the date wrong, as the newspapers often did.  In this week Wednesday fell on the 14th of August.

This is one of the few cases of this period to be reported.  See (1839) 1 Legge 110, solely on the judgment delivered on 16 September 1839.  That judgment is reproduced below.

[2]  See also Sydney Gazette, 17 September 1839.

Published by the Division of Law, Macquarie University