[trial by jury - jury, membership]

R. v. Widdicomb and others

Supreme Court of Van Diemen's Land

Montagu J., 3, 4 and 10 June 1834

Source: Colonist, 17 June 1834[1]

Before Mr. Justice Monatgu and a Military Jury

Upon the opening of the Court the following prisoners were arraigned at the bar:- Robert Widdicomb, for forgery; William Reed, horse stealing; Thomas Waters and James Barnes, burglary; William Ralph, uttering a forged order, and George Farris as an accessory before the fact; George Holmes and James Carter, sheep stealing; John Clark and Michael Dally, larceny; John Walker, John Clark and George Farris, pleaded Guilty, all the rest not guilty.

After the Jury was sworn, His Honor said that he perceived two Commissariat Officers among the Jury, and he was not satisfied that they were competent to sit as Jurymen, except in violation of the Court Act. His Honor directed that two more might be placed upon the Jury, and he would consider as to their competency in the mean time, and give his decision to-morrow.

The Solicitor General said that they were purposely nominated, in order that the question of competency, which was raised last Sessions, might be decided.

…

Wednesday, June 4th.

On the opening of the Court, Mr. Justice Montagu observed, that he wished previous to giving any decision relative to the competency of certain description of Commissariat Officers to sit as Jurors, to take the opinion of the Chief Justice.

The Solicitor General said that Commissariat Officers sat as Jurors in Sydney.

His Honor asked if they took the same oath as petty jurors in England.

Solicitor General. – They do not, You Honor.

His Honor. – The I have no hesitation in saying that their decisions are illegal, and such, he was satisfied, would be the opinion of the majority of English Judges. His honor said he had apprehended that in an engagement, if all the Commissioned Officers were killed, neither the surgeon not adjutant could take command in preference to the senior corporal of the regiment. He was so extremely ignorant of Military matters, that he was almost ashamed of offering an opinion – indeed, the opinion he gave was a mere construction of the wording of the Act. As respected the returning of the verdict, he was perfectly satisfied it should be returned by that Officer who would be senior in command in the field among jurors. The paymaster of a regiment held the King’s commission as a paymaster only, so also a quartermaster. His Honor then requested the Commissariat officers present to withdraw from the box until he had obtained the opinion of the Chief Justice; also one of the jury named, was ordered to withdraw, he being under age.

…

Tuesday, June 10

Before the Judge entered the Court this morning, a long conversation ensued between the Attorney General and Mr. Gellibrand, of a most important nature, relative to the public Meeting, held yesterday in the Court House. The conversation was commenced by the Attorney General, requesting Mr. Gellibrand’s attendance at the Meeting, the Attorney General having understood that it was not Mr. Gellibrand’s intention to take part in the proceedings.

Mr. Gellibrand said, that he understood from the Attorney General himself, that it was his intention to have attended the Meeting, and therefore it was that he was there; but still has Mr. Stephen was not present, he did not take any active part in the business until called upon to second Mr. Horne’s resolution.

Mr. Attorney General. – I cannot help saying that I consider it extremely hard that my conduct be so shamefully misrepresented, as it has been upon this occasion. I never has the most remote intention of doing anything like that which was yesterday attributed to me. It is very true, that I have submitted a recommendation to the Lieutenant Governor, relative to, the present Jury system, but I have not done so without taking the opinion of several practical and intelligent men on the subject and what was that recommendation’ Why, not as was yesterday stated, to a recommendation to substitute seven jurymen for twelve – quite the contrary. My recommendation went to extend, not abridge the Jury system. I recommended that in those cases, in which Assessors are now employed, a jury of seven should be substituted; thus instead of abridging, actually extending the Jury in civil cases, from three to seven. Here was I yesterday, attacked right and left, for a measure I never contemplated. One individual even who got up merely to state to the Meeting, that I had a good argument against you, was hissed and hooted and barely allowed to be heard at all; I actually did not understand that I was considered to be such a fool, as not to be able to argue in my own defence.

Mr. Gellibrand. – I do not think that the Council has the power to make any such alterations, as that which you propose.

Mr. Attorney General. – I beg your pardon; the Act says, that Juries shall be of two kinds in this Colony, until the King shall empower the Council to make such alterations as may be considered necessary. The King has now empowered the Local Council, and, therefore, it is clear, that if they pleased, they could act upon my recommendation. There is another matter, respecting which, I consider I have been very ill-treated, and that is, the impossibility of my making any observations in Court, in my capacity as a private practitioner, in matters with which the Crown has no concern whatever, without having those observations attributed to the Attorney General.

Mr. Gellibrand. – I have frequently expressed my opinion, that the Crown Lawyers should have nothing to do with private practice, but they would be paid liberally for their services by the Public, to whom their individual attention should be given.

Mr. Attorney General. – I consider the private practice of the Crown Lawyer extremely useful to the Public, inasmuch as they are thus continually acquiring an accession of practical experience, which they are enabled to bring into operation for the benefit of the Public, in their official capacities. The argument I have just used is only one in favour of the practice, and I believe it is sufficiently strong not to require any other.

Their Honors here entered the Court and the conversation ended.

Notes

[1] When the Supreme Court of Van Diemen's Land commenced business for 1834, criminal trials were heard before a panel of commissioned officers of the navy and army. Civil trials were usually heard before two assessors (who were most often magistrates), though occasionally before a jury. Trial before a military panel or assessors had been in use in New South Wales since 1788. In question was the future use of civilian juries in both kinds of trial, a matter which was highly contentious in both colonies. For one of many editorials on the issue in Van Diemen's Land, see Colonist, 1 July 1834; and see Bryan v. Lyttleton, 1834.