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

R. v. Smith (No. 1) [1839] NSWSupC 56

robbery - jury trial, address to jury - jury trial, abolition of military juries

Supreme Court of New South Wales

Willis J., 1 August 1839

Source: Australian, 3 August 1839[1] 

Thomas Smith, James Downing, and Charles Wilson, were indicted for assaulting and robbing Margaret Murray, and stealing from her person one cash bag and two £1 notes, the property of Margaret Morris.  The information was quashed, in consequence of the prosecutrix being described in one part of it as Murray, and in another as Morris.

In charging the jury, His Honor delivered the following address:--

Gentlemen of the Jury.  -- I have generally availed myself of the opportunity afforded by the opening of the Criminal Session, to trouble you with a few observations (previously to proceeding to our more immediate business,) with reference to the highly honorable and important duties you are called upon to perform.  On the present occasion, I have, in the first place, to lament to loss the public has sustained, in no longer enjoying the benefit of the services of my friend, Mr. Fisher, our late excellent Crown Solicitor, who, from the pressure of the civil business of the Crown, has been compelled to relinquish that of this Court, which he so long and faithfully discharged; discharged too, in a manner which, in my opinion, entitles him to the gratitude of the Colony; and certainly, to my fullest approbation as a Judge of this Court.  I doubt not, however, that the gentleman who succeeds him, will emulate his predecessor in rendering ``good service to the state."

In the next place, I would observe that the abolition of Military Juries appears to be in contemplation -- a measure which I shall most sincerely rejoice to see accomplished.

Highly as I value the serves of the gallant officers who assist in the administration of justice as Military Jurymen, yet it seems to me a departure from the great charter of our liberties, that juries should be constituted otherwise than from civil inhabitants, should exclusively enjoy this great constitutional franchise, is, I think, a privilege so invaluable, that it will cheerfully be secured by them, though it may be at the cost of some little personal inconvenience.

It is wisely provided by our laws, that no one shall be the judge in his own cause -- or, in other words, shall be the redresser of his own wrong -- lost passion, more than justice, should influence the punishment; wherefore, all human institutions have interposed some peculiar agency for the furtherance of those laws which society, from the earliest periods, has found it necessary to ordain for the protection of the many from the vicious acts of the few -- laws which have always been found to approach nearest to perfection, in proportion to the extent of the spirit of Christianity with which they have been imbued.  Alfred, the pride of Englishmen, and the founder of our boasted laws and liberties, following the Mosaic code, but tempering it with the merciful percepts of the Gospel, is said to have devised that tribunal which you, gentlemen, this day constitute -- that crowning pinnacle and superstructure of our law, Trial by Jury.  'Tis for you, gentlemen, to decide the guilt or innocence of the accused, unswayed by prejudice or feeling, and influenced alone by equity and truth.  The punishment (in case you find the accused to have been guilty) which the Court inflicts on the criminal, is (as I have more than once declared) inflicted for example; and by its example for the prevention of future crime.  But there are other means, and those more congenial to humanity than the severity of punishment, by which the prevention of crime may, it is hoped, [?] a great measure to be accomplished -- means which all of us, more or less, may have it in our power to promote.  I allude, gentlemen, to the promotion of religious education among the youth of the lower orders of the community.

On this subject, an excellent and pious Judge, Mr Justice Pattison, in a very recent address to an English Grand Jury, expressed himself as follows: -- ``With regard to young offenders, extreme caution was requisite: any punishment which might be resorted to by Courts of Justice would not, alone, be sufficient; they would never be able, by mere force and terror, to reclaim them: the only effectual method was, to take them early in life into proper training, and to give them a religious education, for he was satisfied that no other kind of education would be of service: a right sense of religion would alone prevent their being led astray by bad example, and idle associates.  As for giving young persons mere instruction to read and write, it might be of little advantage -- often, perhaps, the reverse; for reading and writing might be turned to evil, as well as good purposes.  Education, to be of real service, must be based on religion."

I most cordially agree with what is thus said by this admirable Judge.  It appears to me, that, by one and all of us aiding in our respective stations the furtherance of sound religious education, your duties in this Court, gentlemen, and mine also, may be rendered hereafter far less burthensome -- that the seed of Christian virtue may be sown, which, by God's blessing, will produce blameless conduct in our fellow creatures in this life, and gain them everlasting happiness in the life to come; and that who soever [sic] is instrumental in this good work, may hope for a Christian's reward.  Gentlemen, if the prisoner, whose case is in your hands, had been duly instructed in early life in the principles of that holy religion which teaches us to fear God always, and to love our neighbour as ourselves, he probably would have been mindful of those sacred percepts, and not have subjected himself to suspicion of the charge on which your verdict is now required.



[1]  See also Sydney Herald, 2 August 1839; Sydney Gazette, 6 August 1839.  Justice Willis was addressing the civil jury, while Dowling C.J. sat in the other court with a military jury: Australian, 3 August 1839.

Published by the Division of Law, Macquarie University