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

Address to Jury [1840] NSWSupC 3

trial by jury

Supreme Court of New South Wales

Willis J., 1 February 1840

Source: Australian, 4 February 1840 [1]

Before His Honor Mr. Justice Willis.

His Honor, before entering into the business of the Session, addressed the following charge to the Jury:- "As nothing appears to me more essential to the due course of justice, in this and all other cases that may come before us, than that the office of Judge and that of Jury should be distinctly understood, I shall preface my remarks in the trial we have now in hand with a few observations on these important topics. The true character and office of a Judge appointed to administer the law, has been, I fear, if not greatly misconceived, at least very imperfectly understood; and no wonder, since it requires some professional habits fully to understand it. The use of law as a science is to prevent mere discretionary power under the color of Equity; and it is the duty of the Judge to pronounce his decisions, not simply according to his own opinions of justice and right, but according to prescribed rules; it is the judgement of the law, and not his own, which he is bound to deliver. Were Judges to decide by their bare opinions of right and wrong -"opinions" (according to a most learned judge and elegant writer) "always unknown, often capricious, and sometimes perhaps improperly biassed! to what an arbitrary tribunal would men be subject! In what dreadful state of slavery would they live." The great objects of a Judge therefore (in my opinion, at least), should be to give due effect to the law, to study both in his public and private character to preserve pure and perfect the principles of the constitution, and to maintain unsullied the honour of his court. He never should pollute the sacred stream of justice with the ribaldry of vulgar jests, nor impede its current by unauthorised insinuations, nor trifle with the sanctity of personal security. Candour, honour and integrity, uninfluenced by political movements, and unbiassed by self-interest, should ever rule his course. Bound by his oath and in his conscience to give such judgment as the law will warrant and his reason can approve; such judgment as he must stand or fall by in the opinion of the present times and of posterity. A Judge must have regard to his reputation as an honest man, and as a man of skill and knowledge, competent to the station which he holds. Knowing the effects of his decision, he must avoid incautious celerity, so that he may not afterwards deem it requisite to retrace his steps. He must discharge his duty without expectation of approbation, or the apprehension of censure. If subjected to censure unjustly, he must submit to it - he cannot prevent it; but he will take care not to deserve it. These, I think, are features which should ever characterize a British Judge. Now with respect to the Jury. The ancient legal maximum "that the Jury is to find the fact, and the Judge to deliver the law," means, I apprehend, merely this: the Jury are to determine the fact, that is, whether the prisoner has committed the crime charged against him; and the Judge must pronounce the sentence annexed by the law to the fact so found. If, too, in the course of the trial any question of law arises, the counsel at the bar and the Jury must of necessity appeal to the Judge for his decision. But when the Jury has received the charge from the bench, it is not possible for them, I think, to separate the law from the fact, unless, by returning what is technically termed a special verdict (that is finding all the facts, and leaving the law entirely to the court); but this is only where a Jury doubts the matter of law, and therefore chooses to leave it to the determination of the court. The Jury, however, has, in my opinion, an unquestionable right of determining upon all the circumstances of the case, both law and fact, and to find a general verdict of guilty or not guilty, whatever may have been said to them by the Judge. "Unhappy (said Sir Matthew Hale) would it be for the Judge if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the Judge's opinion must rule the verdict, trial by Jury would be useless."  In arriving at the verdict, a correctness in ascertaining facts is a most essential element. This requires the exercise of the most anxious care respecting every statement which is received as true, and that it should not be so received, until the mind is satisfied that the authority on which it is asserted, is of a nature that can fully be relied upon, and that the statement contains all the facts to which the attention should be directed. In the reception of truth on the evidence of testimony, we acquire by experience a degree of caution, from having sometimes been deceived. But care must betaken that this caution does not degenerate into unfounded suspicion, which is equally to be deprecated as too easy credulity. These are, I think, distinguishing principles applicable to the office of the Jury. This is a mode of trial established and conducted under the superintendence of a Judge, as the representative of the Sovereign, but exercised in fact by the people who form the Jury. A mode of trial which secures to this Colony so much of the benefit of the British constitution, as it had hitherto been permitted to enjoy. Neglect it not then I beseech you, but so use as not to abuse it."


[1]              See also Sydney Gazette, 4 February 1840.


Published by the Division of Law, Macquarie University