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

Speech to Jury (3) [1841] NSWSupC 38

jury, address to - Berrima - Circuit Courts, procedure - Stephen J., address to jury

Supreme Court of New South Wales

Stephen J., 13 April 1841

Source: Australian, 17 April 1841

            ASSIZE INTELLIGENCE - On Wednesday last, His Honor Mr. Justice Stephen, accompanied by the High Sheriff, the Solicitor-General, Mr. Dillon, the Criminal Crown Solicitor; and Mr. Robert Shadforth, (the Judge's Clerk) who acted as Clerk of Arraigns, arrived in this town for the purpose of opening the Circuit Court. Before the business of the day was opened, Divine Service was performed in the Court House, by the Rev. Mr. Vidal, who preached an excellent Sermon to a numerous and respectable congregation. The Reverend Gentleman took his text from the thirteenth chapter of Romans and the fourth verse, "For he is the minister of God to tell thee for good." About one o'clock the Learned Judge took his seat, and after silence being proclaimed by the Crier, the Court was opened in due form. The Clerk of Arraigns then read the proclamation against vice and immorality, and afterwards proceeded to call over the names of the Jurymen returned on the Panel.

            Mr. William Badgery claimed exemption, on the ground of ill-health, which was allowed after due proof of the fact on oath, His Honor declining to receive a medical certificate of the fact.

            Mr. William Sherwin claimed exemption, on the ground that he was a practising surgeon, and had resided out of the district for six months. His Honor decided on both grounds, that this gentleman was not bound to serve.

            Mr. Thomas Botts Humphrey claimed exemption, on the ground that he did not reside in the town of Berrima. His Honor said, that he could not excuse him upon which Mr. Humphrey observed that Justice Burton had decided at Maitland that no person was bound to serve as a Juror unless he resided within the towns where Circuit Courts were to be held, and submitted that His Honor would have no power to fine him if he did not attend.

            Mr. Justice Stephen observed, that it was not necessary to argue that question. Mr. Humphrey then retired.

            Mr. Higgins claimed to be exempted from serving, as he was the post-master of the district, and the public would be considerably inconvenienced by his non attendance to his duties in that capacity.

            His Honor consented to excuse Mr. Higgins.

            Another Juror was also excused, on the plea of ill-health.

            The Learned Judge then proceeded with the following address:-

            The Jury Panel having now been called over, and the names of the persons on whom will devolve the important duty of Jurors being thus ascertained, it appears to me to be the most convenient opportunity for addressing to those Gentlemen, and through them to the Magistracy and the Inhabitants of the Districts a few observations naturally suggested by the occasion.

            It is, in my judgment, matter of general congratulation to the community, that Circuit Courts have been established. Their direct advantages, indeed, may not be many; and even of those which are the least questionable, the full effect may not be at once perceived. For, amongst the benefits which will arise from the establishment of these Courts, I certainly do not anticipate that one will be the diminution of expense to the revenue. And, on the other hand, in the infancy of the system, as in that of other systems, inconveniences and obstacles are to be expected, which, with some, will furnish arguments for its abolition, before even it shall have enjoyed a fair trial. The latter class of objections, however, will as I hope be of very temporary continuance. They will be removed, by the aid simply of a little experience. The increased expense will probably alarm many. This increase, however, will I think not be of long duration, and at all events, in a question involving so many higher considerations, it is, as I conceive, an objection of comparatively no moment.

            It is not, however, the direct, and more obvious effects, or advantages, that are alone to be regarded in a question of this nature. And to the indirect advantages of Circuit Courts, and the consequences which incidentally may be expected to flow from their institution, we may look with equal gratification and confidence. Anciently, the decision of cases was left to persons from the 'vicinage', as it was called, or, in other words, to Juries in the neighbourhood of the transaction, whatever it might be, because they were supposed personally to have the most accurate knowledge of the facts. Indeed, in the earliest times, they were strictly and literally witnesses to them. This reason for the selection of Juries in the neighbourhood has long since ceased. Jurymen are no longer witnesses; and their only legitimate knowledge of the facts in issue, is derived from the sworn testimony of others. Nevertheless, abundant reason for this selection remains. In the difficult investigations which continually arise in Courts of Justice, where so much frequently depends on circumstances apparently trivial, an acquaintance with the character of parties, and of witnesses, and with localities of various kinds, will generally be of great importance, and be found materially to aid its possessor in the discovery or perception of the truth, and consequently in arriving at a just conclusion, on the questions which he may have to determine.

            Another advantage attendant on the trial of cases near the spot where they have arisen, is the effect produced, or which this system is calculated to produce on the minds of prisoners, and their associates in crime. The beneficial effect of conviction, and of sentence, or punishment, (or much of that effect) when the circumstances of the crime are previously unknown to the auditory, or the persons best acquainted with them, hear of the sentence by report only, is lost. Even in civil cases there is a value in example, and a wholesome influence exercised by local opinion. A man is less likely to persist in a harsh, or unjust claim, or to dispute an honest and well-founded one, in the presence of his neighbours, or those acquainted with him, and by whom he is daily encountered. There are many other advantages attendant on these local trials. The community at large, not in the capital alone, but throughout the provinces, are habituated to the discussion of questions vitally important to them. They exercise the inestimable constitutional privilege of assisting in the administration of justice. Various classes of society, and different grades of men, are assembled together, united in the discharge of one common duty, and engaged in carrying jointly into effect the laws under which we live. A knowledge of these laws becomes thus more extended, and the co-operation of the people at large gives to them a moral force, which he should otherwise seek for them in vain. The Magistrates of the Colony, and the Judges of the Supreme Tribunal, are usefully brought into contact with each other. The political and social fabric throughout, is in fine more closely cemented and strengthened.

            Compared with these, the advantages which are attained individually by the residents of the several districts, are not to be put in competition. There is one, however, which I will here mention. You will no longer be compelled, for purposes of evidence, to quit your properties and your pursuits, for lengthened periods, and to send your servants amongst the temptations and debaucheries of an over-grown town, separated from your homes by a three or four days' journey. Evils such as these are, I know, not to be fully estimated, except by masters who have been exposed to them, and I congratulate you, Gentlemen, on the prospect of their removal. They are certainly removed from you, at present, and I do not apprehend that they will recur, although the Assize Town hereafter selected for these districts should be considerably farther south.

            Amongst the inconveniences to which I referred, as not unlikely to be experienced at the outset of these Circuits, was that arising from the necessary removal of prisoners to the Circuit Town for trial. But this will, on future occasions, as I presume, be avoided, by the Magistrates committing men to the appropriate and nearest gaol at once. I will observe, however, that even were the removal of prisoners from gaol to gaol much more frequent than has been the case hitherto, no more than a very moderate degree of care appears tome to be required to ensure their safe custody. I am informed, nevertheless, that escapes are by no means infrequent, - and that, in addition to the recent most flagrant instance, in which a man charged with most serious crimes is again let loose on the country, several others have at different times occurred in the same neighbourhood. If this be so, it is to be hoped that the circumstances of each such case will be strictly investigated, and that the real cause of occurrences so untoward may be ascertained, and an effectual remedy for the future be at once applied.

            I am grieved to see that the calendar of prisoners for trial contains so heavy (and I should hope so unusual) an amount of crime. I perceive in it five cases of horse or cattle stealing, three of breaking into or stealing in a dwelling house, three of shooting or assaults, with intent to murder, and two cases of murder. These are exclusive of a case of rape, charged against the man to whom I alluded, as having escaped from custody. Many of these serious crimes, if not the majority, I have no doubt it will be found, are directly or indirectly occasioned by habits of intemperance. Some of them, in all probability, have been the immediate effect of drunkenness, and committed under its active and deadly excitement. To this fatal and degrading vice, which may justly be termed the scourge of the Colony, we owe by far the larger proportion of all the disease and misery, which are to be met with in our hospitals and dispensaries; and all the crimes of fraud, violence, and blood, which at every Criminal Session of our Courts occupy so largely the public time, and occasionally distress the ear with their fearful and shocking details. With such facts before the community, it has always been to me a subject of as much surprise as regret, that more vigorous and sustained efforts are not made, by all classes, to restrain and overcome the monstrous evil. To this important object, gentlemen, I do therefore now earnestly implore your attention. For my own part, I avow it as my deliberate opinion on this subject, that, in the state of things which I have thus described, the first duty of every man, next to that which he owes to his Maker, is the duty of repressing the consumption - and, if possible, of entirely preventing the use- of ardent spirits of every kind;- for, whilst this obstacle to improvement exists, there is little hope in human means for affecting any general reformation, or of advancing the great cause of morals or religion.

            Gentlemen, there are other topics connected with our respective duties, on which I meant to have offered to you a few observations; but, having trespassed on you at considerable length already, I will reserve them, for such occasions as may present themselves from time to time, in the course of summing up, or otherwise, during the session. We will now proceed, patiently and dispassionately, to hear, and impartially and conscientiously to determine, according to the duties imposed respectively on us, the several cases which will be submitted to you. It is my earnest desire and trust, for you and for myself, that, in the discharge of those duties, (in themselves, and in their consequences, the most responsible and solemn that man can discharge towards his fellow,) we may so feel and act, - I in the declaration to you of the law, and you in the decision of facts, upon the evidence before you, - as shall be just to the prisoner in each case, satisfactory to the country, and acceptable to Almighty God.

            At the conclusion of His Honor's address, which was most attentively listened to by the audience, Mr. Solicitor-General presented a commission, authorising him to prosecute, in his own name, all offences presented before the Circuit Courts at Berrima and Bathurst. The commission being read, the Court proceeded to the business of the day.

Published by the Division of Law, Macquarie University