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

R. v. Davidson [1841] NSWSupC 43

jury, speech to - manslaughter - Burton J., speech to jury

Supreme Court of New South Wales

Burton J.

Source: Sydney Herald, 1 May 1841[1]

            The Jury list having been called over, Mr. Justice Burton said:-

            Mr. Solicitor-General, Gentlemen of the Bar, Gentlemen Magistrates, and Gentlemen of the Jury, - We are met together this day to perform a duty which has been imposed upon us by the Local Legislature, by an Act passed on the 16th October last. This, as you are all aware, is a new duty, and we are met together for the first time to perform it. This is the first Circuit Court that has been held in the district. There was, as many of you doubtless recollect, an adjournment of the Supreme Court held in Bathurst some years since upon a special occasion but this is the first time that a Court has met similar to those which we have been accustomed to in the Mother Country, and bearing the same relation to the Supreme Court that the Courts of Assize in England have to the superior Courts in Westminster. It may therefore be well for us on the first institution of this Court, whether we are here as prosecutors, as witnesses to give evidence, or a judges or juries, to sit in judgment, I say it will be well for us all to pause, as it were, on the threshold of the temple of justice, and consider the nature of the solemn duty we have to perform. The administration of justice should not be entered upon lightly; it is a matter of the highest importance. There are some, I am aware, who look upon it as a mere ordinary affair; but it is my duty to disabuse the minds of those who may have formed that opinion. The administration of justice is not a mere abstract enquiry whether this or that person is guilty of this or that offence, and has thereby incurred a certain penalty; nor is our duty simply the adjustment of the rights or wrongs of our neighbours. Our jurisdiction is of a much higher character, and springs from a much higher source. Human institutions have little authority if they are not founded on divine law. In this view of the case you will see that it is not a mere abstract enquiry, but a religious duty which we have to perform. Justice, the highest attribute of the Supreme Being, is committed into our hands. What an awful situation then is ours, - set apart from the rest of the community to exercise this important duty. We are not to be looked upon as the servants of men, as some suppose, but as the servants of God, whom only we must obey; but if we were the servants of men we must obey our masters. We must obey God. Men's opinion upon our various acts will be freely given, and it is well that it is so, for many will be more guided by fear of the opinions of men than by higher principles. But this is not a lawful incentive; we should not perform our duty according to what men will think of us, but according to that which is right. I said just now, that the duty we have to perform is a religious one; our jurisdiction would fail of its influence and office if it were based on human law only. It may be doubted indeed how far, without divine authority a Legislature could go in inflicting pains and penalties for offences, more particularly the punishment of death. But we know that the National authority for it is derived from the Supreme. Accordingly, we find that in the law of our Christian country, there is nothing that is not based upon divine law. Go through the catalogue of crimes which are punished by law, and you will find that they are all offences against the divine law. Blasphemy and profane swearing, which, as you have just heard from the proclamation that has been read, are forbidden by law, are curses against the law of God. So it is with murder, the highest of crimes both by human and divine; so it is with perjury, theft, and with crimes against chastity of all descriptions. If a man does any wrong to his neighbour, if he perverts the due course of justice, if he molests the widow, or oppresses the fatherless, he offends against the law both of God and man. The same rule applies in civil cases, for no man can defraud his neighbour without offending against the law of God. To do justice is a divine command. A prophet says, "what doth he require of thee, O Man, but to do justice, to love mercy, and to walk humbly with thy God." Shewing that he does require us to do justice. The administration of justice therefore is a human institution, but it is a divine ordinance. What state of mind ought we then to be in who are called on to take part in it. We ought to be thankful that we are in a country where the laws are based on such authority. Imagine the state of a society in which there should be no law; what would be the consequence, why that every one must avenge his own wrongs; that all who are defrauded must retaliate; the strong would always be oppresors, for no one could retaliate upon them. What an awful state of society that would be, where there would be no redress for wrongs except what was to be obtained by personal strength. I am aware that I must be merely eliciting in the minds of many gentlemen, what they had before formed an opinion of, but I must be excused for taking up their time, as there are doubtless many present whose minds have not turned to the subject, and it may be well on this first occasion of opening this Court to draw their attention to it. I now, gentlemen, come more particularly to the Act of Council under which we are assembled together. The object of this Act is to improve the administration of justice. To render the administration of justice efficient, we must have in the first place good laws, and I must confess that in many of ours there is great room for improvement. If laws are confused, if they are doubtfully worded, if they are scattered over many different acts, so that they are difficult to find or to understand, they are bad. Doubtful laws introduce a species of slavery into a land, they render uncertain what ought to be certain to all. We require an improvement in some of those which relate to the administration of justice; this arises partly from the increasing populousness of the colony, and the immense distances which adventurers go with their sheep and cattle. One improvement has been effected by bringing justice to your doors, by the institution of Circuit Courts. But there are others equally necessary. It would be unreasonable to expect the Judges to go on circuit to such places as Port Phillip, or Port Macquarie, or Port Essington, all of which are within the Governor's commission, and consequently form part of the colony. Some provisions have been made for the administration of justice at Port Phillip; on those provisions some observations might be made, but this is not the place for them. It is necessary, however, that a court should be established at Port Macquarie: probably a Supreme Court may not be necessary, but a court having more extended jurisdiction than Courts of Petty Sessions or Courts of Requests. Promptness in the administration of justice is one of its greatest recommendations; the force of example is also greater, as those who are witnesses of the crime are also witnesses of the punishment. This Act will, I think, be found one of economy, a virtue which it is the duty of all to practice, whether in public or private affairs. The system which has been hitherto pursued has been any thing but one of economy. Some gentlemen present may recollect that, more than five years ago, I said that the roads were crowded with persons going to and from the Courts of Justice, I alluded to the numerous escorts conveying prisoners to and fro. The expense that was thus incurred was enormous; witnesses were brought up and down the country; constables were sent backwards and forwards; prisoners were brought down to Sydney and then remanded back to be tried at Quarter Sessions, and all this at an expense to the country that was almost incalculable. Gentlemen who had an opportunity of seeing these escorts on the road, must know that the expense was enormous. One case, amongst many others, recurs to my memory, which was not tried from the absence of a material witness, the expenses in which were £59. I am satisfied if an account could be formed, combining what is incurred in the escort of prisoners, in the travelling of witnesses, and in serving of summonses by persons who ought to be otherwise employed, the system hitherto would be found most extravagant. The establishment of Circuit Courts will be found to be an economical measure, not only as regards the country, but as regards the suitors, whose expenses used to be very great. But although economy is a great, it is not the best commendation which an institution can have. Some think that cheap justice is a great desideratum, and that cheapness may be taken as the criterion of the work of all institutions. In this remark I mean no reflection upon those gentlemen who so kindly presented me with an address this morning; they did not use the word "cheap" I am persuaded, in the manner I am alluding to; they, I hope, entertain the same idea as myself, that cheapness is not the best recommendation of any measure. That which is best is cheapest; but I deny that that which is cheapest is best. You may disrobe justice of all her dignity, and make the administration of it that affair of heartlessness, that mere abstract enquiry I have before alluded to. The truth of a fact may indeed be thus determined, but that is not according to the genius of Englishmen. To use a metaphor, we often see truth indeed represented naked, but justice is always clad to the feet. The genius of Englishmen has covered the administration of justice with decency and respect. A man who is a Colonel of Militia on field-days, a Judge on Court-days, and a shopkeeper every day, might administer justice properly, but he could not add much to respect for the law. It is not the cheapness, but the usefulness of an institution that should be the criterion of its worth. The next point to which I will speak is personal to myself and my brother Magistrates, for we are all Magistrates, although of a different degree. The first requisite in the administration of justice is good laws; the second is good Judges and Magistrates. As to who are qualified to be Magistrates, the constitution of England says, that they shall be men of the first consideration in the country, and that the Judges shall be men of the first consideration in their profession, that they shall all be men of piety and learning. We have but to refer to the Royal proclamation, which has just been read, to see that Magistrates must be men of piety, men who will discourage vice and encourage virtue, who will put the law in force against all offenders, who will insist upon a regular attendance upon divine worship, and who will put the laws in force against those who do not attend. By this proclamation I am directed as Judge of Assize, as I do now strictly, to charge you to put the law in force against drunkards, blasphemers, and those who commit lewdness. What manner of men ought those to be, is a natural question, that have this duty to perform? How can they enforce the law against those who break the sabbath, or who commit lewdness, if they commit these offences themselves? I might be over-awed in making these remarks, if I thought any gentleman who now hears me could apply them to himself, but I trust it is not so. I think it, however, my duty to state that no drunkard, no sabbath breaker, no whoremonger, ought to be, or is fit to be, a Magistrate. At the opening of this Court I think it right to make these general observations, and if there are Magistrates to whom they apply, which God forbid, I can only say that they are the persons to whom they ought to be made, and that they should show some sort of remains of decency and honesty by retiring from a situation of honour into private life, or what would be better still, reform themselves and leave off their evil ways. I will now trouble you with a few remarks upon the duty of magistrates. In all cases they should be particular in observing the law in the first stages of a prosecution, for all will be in vain if the first steps are not judiciously taken. The individual duties which you have to perform are heavy and responsible. Some magistrates receive stipends, and some are honorary, but my remarks are applicable to all; neither is more nor less honorable than the other. One of your most important duties is the appointment of constables, and you should take care that this office is never conferred upon low bad men. I may be met with the reply that it is impossible to get proper men to fill the situation. What is the exact remuneration paid to constables I am not at this aware, but I am afraid it is still very low, although it was raised, I believe, during my recent voyage to England. A fair criterion is to compare the remuneration of constables with the wages paid to labourers, and if it is less, and you cannot get good constables for less than you can get good labourers, here is an example where the principle of cheapness fails. If it is necessary, let my brother magistrates apply to the proper quarter to have this remedied. The next point for our consideration is, when the prisoner is brought up for examination. Let the evidence be taken so that it will support the charge, and let the depositions be taken strictly as they are given by the witness. If on the first examination the evidence is not sufficient, the magistrate, if he has reasonable ground, may remand the prisoner for a reasonable time, for further inquiry, -- and here a word of caution may be necessary, - not without reasonable cause to tamper with the liberty of the subject. If satisfied of his guilt, the next duty of the magistrate is his committal, and here an error has been very generally committed, although there are fewer here than I have seen elsewhere, and none of the cases committed by the Police Magistrate are subject to the remark, magistrates must not commit for a general offence, such as felony, but must state in the warrant the specific offence for which the committal has taken place; if it is theft it must state so, all general committals for felony are illegal, and upon a mandamus being applied for, a magistrate would find himself in an awkward position. There are only three warrants in this district of which I have to complain; two are committals for felony, and the other is not legibly written. The charge is, I believe, horse stealing, and I took it for 'hare shooting,' the next point is, admitting a prisoner to bail, which in cases of felony can only be done by two magistrates. This is a very important matter and one that requires the speedy interference of the Legislature. I have rarely seen a recognizance in this colony which it would not be very hard to enforce. According to the law of the land, every prisoner should be committed for trial at the next Court of Oyer and Terminer, or Quarter Sessions. Now what is the course pursued here. A man is committed until relieved in due course of law, and the recognizances of witnesses are to appear when called upon by the Attorney General. There is thus a fresh summons to be issued for every witness, constables or other persons have to be sent to look for them, and perhaps by keeping out of the way they may entirely defeat the ends of justice, without incurring any risk themselves. There is but one statute upon the subject of commitments and recognizances, and that is inapplicable to this Colony, I allude to 7th Geo. IV. (His Honor here read the clause of the Act of Parliament, which directs that all persons shall be committed for the next Court of Quarter Sessions or Assize, and that all bail bonds and recognizances shall be forwarded to the office of the court to be filed.) In this Colony the practice is not to commit for any particular Court, but generally, a matter of very great importance, for we live here as in England, under the protection of the Habeas Corpus Act, and if one assize passes over, a prisoner can demand to be tried at the next, or at the end of the session he must be discharged. The recognizances are to be returned to the officer of the Court, in order that they may be there filed; and if the witness is not present when called on it may at once be estreated. The depositions are likewise direction by the Act to be returned into court; but in this Colony, while the Attorney-General holds the authority which he now does, it is necessary they should be returned to him. I have thus shown that the only power to commit for trial, to admit to bail, or to take recognizance, depends upon an Act of Parliament, which is inapplicable in many of its parts. Is not this a matter that requires the immediate interference of the Legislature? It may be asked why has this not been attended to before? and here I can exonerate myself from blame, of seven years since I observed the defect and drew, proposed, and recommended, an act to remedy it, and it is rather mortifying to find that nothing has yet been done towards it. We want fresh arrangements entirely; these escorts must be done away with; prisoners must be committed for trial in certain districts; we want goals for the different district, and we must have them - gaols fit for a Christian country, not gaols where all persons are classed together, men for the lightest offences with men for the most heinous crimes; we must have these although they cost more than mud huts, from which prisoners can escape, or are more trouble than ironing men to keep them in safe custody. The next important subject for our consideration is the certainty of punishment. The law, referring again to the Divine law, tempers justice with mercy: the case of a prisoner is considered with mercy by his prosecutor, by the Magistrate, by the Jury, by the Judge, and finally by the Crown. The Legislature should make such laws as Judges can execute. I fear that in some cases punishment is uncertain. When I left the Colony, transportation to Norfolk Island was very effective; it was a strong and serious punishment, and I must receive more information than I now possess, of what is going on at Norfolk Island, before I abandon my fear that the administration of justice is likely to be weakened by it. I deny that convicts should be treated as sick patients, morally sick, whose reformation is the only object, and who are to be petted, and flattered, and beguiled into reformation, or an appearance of reformation. I deny that the sole end of punishment is the reformation of the criminal; this is a mistaken, and, in my opinion, a mischievous theory. Another object of punishment is to be a terror to evil doers. We are commanded by Divine Law to put murderers out of the land, to cleanse it from abominations. The Jews were thus made executioners of the Divine Law and Divine punishment in the case of the whole nations of transgressors, as if to shew them the heinous nature of those offences for which they were made to punish them, and so warned to avoid such evil example. The judicial duties of magistrates are not less responsible than those of the Judges, although less in degree: they are judges at Quarter Sessions, and have an extensive summary jurisdiction, in which they are not assisted by a jury; they should be men therefore patient, consciencious, and independent. I will now make a few observations to the Gentlemen of the Jury, who have heard the preceding remarks, many of which are applicable to them. You are selected from your fellows to assist in the administration of justice, and what should your qualifications be? not less than those of the Judges and magistrates as regards independence and integrity, On your particular duties I will remark as cases come before us; but a few general observations may be advisable. Judges are the sole judges of the law in all cases except libel, and jurors are judges of the fact, and the judge who should decide upon the facts of a case would outstep his duty as much as a jury who should decide upon the law. Since I left the Colony there has been one improvement in the administration of justice, of which I must express my admiration. Prisoners are now admitted to make their full defence by council. We have both parties before us. The Judges will of course always see that a prisoner is not improperly convicted, and will take points for a prisoner, but an able counsel will take all the points that he can, while a judge will only act impartially. We cannot look upon the calendar of offences which we have to try without very serious reflections; and what a picture of the state of the community does it present. Can we come to the consideration of these cases with apathy, as if it were a mere matter of business, and abstract enquiry, whether John Stiles committed a crime or is to have punishment. We cannot help having some feelings of sympathy for the wretched men who have committed these crimes. We are the executioners of divine justice, and, as we are taught by the record of the Jews of old, if we commit the same offences for which we punish others, must we not stand self-condemned. We should take care of ourselves lest we fall. I know that I may be met with the observation "Am I a dog that I should do such things?" But we should remember that we are all liable to transgression. I once tried a man who went out to rob a hen-roost, and returned a murder. I use this illustration to shew that when a man commits any crime he does not know where he will stop. What is that makes us to differ? I have heard it said that the difference was in simple education, but I deny it. Education may prevent a man from committing a specific crime to which he is not tempted, but he may be guilty of one higher. It is said if a man be educated he will see that it is his interest not to commit crime, as the advantage gained by it bears no comparison with the penalty this is an utilitarian principle, and is not correct. It is divine grace only that makes one man to differ from another. There must be religious education, not education merely secular. We must all be reminded how important it is that we should seek moral renovation of the country by all the means in our power. It is to the rising generation that we must look. The young have had their hearts hardened by sin, but their minds are susceptible of receiving good impressions. We must not forget that He who was both God and man, said, "Of such is the kingdom of Heaven." I was yesterday much gratified at seeing a number of young persons confirmed. I am happy that my first visit here should happen to be at such an interesting time, when the Bishop of the Diocese is on his tour for the purpose of confirming the young. I know of no object that could have a more softening influence on the human heart, than to see a number of young children ranging round the Bishop to be confirmed. Let that rail be again and again filled, and the work of renovation will go on until it is accomplished. Among those who were confirmed were several adults, whose appearance denoted that they were natives of the Colony, and had had no previous opportunity of receiving this rite. This was, in one sense, a sorrowful sight, as shewing how great has been the spiritual dearth hitherto; but a gratifying one also, as shewing that we have now the blessing of religious means. - We must now proceed to our duty, remembering that we must administer justice with mercy; but we are not to understand by this that we are to disregard justice for the sake of mercy, but we are first to consider justice, and then mercy. We must not convict the innocent; but it is not less our duty to take care that the guilty do not escape. If we do not do this, we commit a sin, and bring a national curse upon the community.

            The Solicitor General handed in his commission to prosecute in Circuit Courts, which His Honor directed to be copied and entered upon the record.

            Daniel Davidson, a convict, was indicted for the wilful murder of PatrickMaginness by shooting him at King's Plains, on the 4th February.

            The Solicitor-General said, that after the eloquent comprehensive, and instructive address which had just been delivered from the Bench, he should not take up the time of the Court by any lengthy remarks, but he must say that if that address received the attention and consideration which it was entitled to, it would materially lighten the duties of all who had to perform any in the Court. He regretted to say that he appeared before the Court in a twofold character, partly in that of a grand jury, to determine who should be tried, and partly as public prosecutor. He mentioned this in order that the Jury should not give to the evidence they would hear, greater weight than it was entitled to. In England no man can be put in the degrading position of being placed upon his trial for an offence until twenty-three gentlemen have agreed upon the necessity of doing so. Here there is no such course pursued, and the Jury must therefore attach no weight to the mere circumstance of a party being put upon his trial. The character in which he represented the Crown was not one of vengeance, nor was he dispensing of justice, neither was he an advocate in the ordinary sense of the word. It was not his duty to make nice distinctions, nor by subtle arguments to strain a case against a prisoner, but simply to bring it before the jury. In finding their verdict the jury would be guided by the probabilities of a case: they would not acquit a man because there was an improbable possibility that he might be innocent; but if there was such a case against him as satisfied them of his guilt, they would return a verdict of guilty. As Crown Prosecutor, he would always have the right of reply, whether witnesses were called for the prisoner or not, but this was a course which he should always exercise very tenderly. The learned gentleman then concluded by giving a brief outline of the case.

            It appeared that the prisoner Davidson was a convict, who sent to Carcoar as a probationary constable, on account of his good character. The deceased Maginnesswas sent under similar circumstances, but Major Bowler, the police magistrate, having reason to believe that he was in league with bushrangers, determined upon sending him to Sydney, and directed Davidson to take him to Bathurst. On the day laid in the indictment, Davidson and Maginness, the latter handcuffed, came to the station of a Mr. Cooper, on King's Plains; they were both drunk, Maginness being the most so.Maginness asked Mr. Cooper, who with two servants was at work on the edge of the road, if he thought that Davidson was in a fit state to take him to Bathurst, and declared that he would not go any further until he had seen Major Bowler; both parties had some very high words, and at last Davidson unhandcuffed Maginness, that they might have a fair fight; they fought for a minute or two, when Mr. Cooper interfered.Maginness fell down, and Davidson threw himself upon him and called on Mr. Cooper to assist him to handcuff him, which he did after a scuffle, in which Maginness grasped Davidson by the throat, and Davidson bit Maginness's hand. When Maginness got up he became still more violent, and Mr. Cooper endeavoured to pacify him and to persuade him to go on the road with Davidson. Davidson went about thirty yards, to where his bundle was lying, and took up a pistol, with which he returned close to Maginness, levelled the pistol at him, saying, "I'll blow your brains out," and the pistol went off, and Maginness, who received the ball through his head, fell down lifeless. Davidson immediately said that he had no intention of shooting Maginness, that he only meant to frighten him, that the pistol had gone off at half cock, which it had done before, and if the world was his he would give it recall that shot. Major Bowler, to whom the pistol belonged, said he never knew it to go off on half cock, but on trying it in court, it went off twice without being cocked.

            The prisoner's defence was, that he never intended to do more than frighten the deceased, and he had subpoened a witness (who had not arrived) who could prove that once before the pistol went off as he was carrying it, and nearly shot his foot.

            His Honor said, that this was an example of what he had alluded to in his address, the evils arising from making improper persons constables. That the death of the deceased was caused by the prisoner there could be no doubt, and the question for the Jury was, whether the prisoner fired the shot deliberately or not, if they were of opinion that the shot was fired wilfully, they must find the prisoner guilty of murder: if he had used a staff and had accidentally caused death, then it might have been a case of manslaughter, but in this case after the deceased was handcuffed, the act of the prisoner was altogether unjustifiable. If, however, the jury thought that the prisoner did not fire deliberately, still he had no right to level a pistol that, according to his own account, he knew went off at half-cock, at the head of the deceased; a pistol should not be used except in the most extreme case, while here the deceased was handcuffed, and Mr. Cooper and two of his men were present, if assistance was necessary.

            The Jury retired about five minutes, and returned a verdict of guilty of manslaughter.

            His Honor said, he quite concurred in the verdict; he did not think that the prisoner was so wicked as to wish to take away the deceased's life, but still the Court must mark its sense of the prisoner's conduct by sentencing him to be transported for seven years.


[1]              This continued the custom of Burton J., of delivering speeches to juries. See for example, Speech to Jury, 1835; and see Speech to Jury, 1841.

Published by the Division of Law, Macquarie University