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

R. v. Humphreys [1840] NSWSupC 76

stealing, cattle, jury, address to, convict, evidence by

Supreme Court of New South Wales

Willis J., 2 November 1840

Source: Sydney Herald, 3 November 1840[1]

William Humphreys was indicted for stealing a Bullock, the property of Benjamin Cougan, of Campbell Town.

            Before putting the case to the jury, his Honor addressed them as follows:

            Gentlemen of the Jury - In compliance with the practice that I have hitherto adopted, I venture to trouble you on our first meeting with a few general observations.  We are once more assembled to investigate and punish the commission of crime.  Ofcrime, I say, as distinguished from sin, for every crime must be a positive breach or wilful disregard of some existing public law - though many offences against earthly authority are not otherwise sinful in the eye of Heaven, than as infractions of that implied contract of obedience to the Legislature to which every member of society is subject.  On the other hand there are many species which, in a legal sense, cannot be criminal, because in their nature they are not obvious to human accusation.  But it must not, therefore, be supposed that the law is careless of religion.  Wisely, indeed, has religion been established as useful and necessary to society; and it is so wrought into the very frame of government, as to become essential to its existence.  Wherefore, though the well being of the state is the peculiar object of the magistrate, yet it is inseparable from a due concern for religion.  This, however, is perfectly consistent with liberty of conscience, and the free use of reason and enquiry.  Nor does it in any wise authorise persecution.  Freedom of thought is the prerogative of the human race; a quality inherent in the very nature of a thinking being; a privilege which can neither be denied to him; nor taken from him.  But freedom of opinion may be enjoyed without descending to religious controversy.  "When I view," (says Bishop Home) "the innumerable unhappy differences among Christians, all of whom are equally oppressed with the cares and calamities of life, I call to mind those beautiful and affecting words which Milton represents Adam as addressing to Eve, after they had wearied themselves with mutual accusation-

            "But rise, let us no more contend, nor blame

Each other, blamed enough elsewhere, but


In offices of love, how we may lighten

Each other's burden in our share of woe."

Among all classes and denominations, offences must come, which it is the province of the law to punish, and by punishment to endeavour to suppress.  The prosecuting of crime in this colony is confided to the Attorney-General, who exercises precisely the same functions here, in this respect, as the Lord Advocate in Scotland.  "He has not only the right of prosecuting all sorts of crimes without distinction, after due enquiry into the fact, but also the right to determine the justice and expediency of bringing the party accused to trial at all; a right which in England and Ireland is entrusted to a Grand Jury.  In theory, perhaps," says the learned writer on the Criminal Law of Scotland from whom I quote, "entrusting to a Jury the right of determining whether the party accused shall be put upon his trial, may appear more favorable than confiding it to a single person, and that person an officer of the Crown.  It is believed, however," (adds this author) "that no example has occurred since the Revolution, where it can with truth be said that this right has been abused by an oppressive or groundless prosecution at the instance of this officer."

            During the three years I have now sat on this Bench, I can bear the same testimony, so far as my observation has extended, with regard to the Attorney-General of New South Wales; and I do so the more readily as he is now about to leave us.  May his voyage be prosperous, and the fondest wishes he may have formed on revisiting his native land be amply realized!  His departure will not affect any pending prosecution, for it is not a particular person as Attorney-General that the law looks to as prosecutor, but an officer under that name, who prosecutes for the interest of the public.  Having said thus much respecting prosecutions, permit me to say a few words with regard to the evidence by which for the most part they are, here, almost of necessity, supported.  By the law of, England where a man has been guilty of treason, felony, or any species of the crimen falsi, as perjury, forgery, and the like, his testimony is not receivable on the ground of the infamy of character which the commission of such crimes indicates.  (See Roscoe's Criminal Evidence, p. 100.)  It was however held some years ago, by the then majority of the Court, that such evidence was admissible in this colony, without any express law for that purpose, on the sole ground, as I understand, of expediency; and to that decision I am compelled to submit.  I mention it to show what has been done even against the positive rule of English law, merely because it was deemed expedient.  It is on this ground, and this alone, that the testimony of the witness Arthur was this day admitted.  Much excitement, it seems, has recently been created by an Act of the local legislature, very similar to that of the 9th Geo. IV. No. 4, for ascertaining the number, names, and condition of the inhabitants of this colony; and no one regrets more truly than I do that any such feeling should have arisen, or even for a moment have existed.  It seems to me, however, to have originated in a misconception of the law of evidence, an error which even lawyers may have fallen into, but which I think a few words will make appear to be palpable.  It depends then upon this, namely, whether a witness is bound to answer questions tending to degrade him?  "The point," says Mr. Roscoe, in his work on Criminal Evidence, p. 133, citing 1st Phillips on Evidence, p. 265, "has frequently been raised and argued, whether a witness, whose credit is sought to be impeached on cross-examination, is bound to give an answer to questions put to him with that view.  The doubt only exists where the questions put to him are not relevant to the matter in issue, but are merely propounded for the purpose of throwing light on the witness' character; for if the transactions to which the witness is interrogated form any part of the issue, he will be obliged to give evidence, however strongly it may reflect upon his character."  Such is the law as laid down by two eminent text writers on this subject.  It is true that where the questions are not relevant to the matter in issue, there are authorities (authorities on which I have hitherto acted, and still intend to act) which say, that although the question may beasked, the witness is not bound to answer; but, even on this point, there have been conflicting decisions (see Roscoe's Criminal Evidence, p. 133 and 135.)  I, therefore, deem it a mistake to suppose that any pertinent questions or numerical returns, authorised by the legislature, such for instance, as those under the English Income Tax Act, when it prevailed, can properly be considered as illegal.  The principle on which Courts of Justice protect witnesses in such cases is, according to a modern writer on Evidence in Equity (Gresley p. 67) "to maintain decency and dignity in their own proceedings;" that on which the legislature proceeds, I apprehend, is disregard of the indelicacy for the sake of promoting that which in its wisdom it conceives to be a greater advantage.  In the present case, if ether of the witnesses had been asked any question material and relevant to the issue, acting on the principle I have stated, I should have enforced their answer, however it might have tended to disgrace them.  I sincerely trust that I may have succeeded in removing any misapprehension, and I would hope also, in allaying any irritation that may have subsisted.  There will probably be many instances in the cases which you gentlemen, will have to try, in which what I have said may be applicable; but I will proceed with the evidence in the case which the public prosecutor has now brought before you, merely adding, in the spirit of that religion which I have already noticed as essential to all good government, my fervent prayer that we may all live in peace, and that there may be no divisions amongst us.

            His Honor then proceeded to his summing up of the case before the court, and left it to the jury, who after a short consultation returned a verdict of Not Guilty.


[1]              See also Australian, 5 November 1840; and see the editorial of theSydney Herald, 4 November 1840.

Published by the Division of Law, Macquarie University