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1873, John Morton - Unfit For Publication
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The Sydney Morning Herald, Mon 21 Apr 1873 1

(From the Mudgee Times, April 18.)

IT having been communicated to the Reception Committee that the Chief Justice, Sir Alfred Stephen, Knight, would arrive in Mudgee at about 5 o’clock on Wednesday afternoon, the 16th instant, a large number of our leading inhabitants made the Belmore Hotel their rendezvous at about 3 o’clock on that day, to prepare for a start down the Mudgee road to receive his Honor, and escort him into town. Carriages, buggies, and horsemen, made up a tolerably large cavalcade, which was considerably augmented on the way, after the start was made, at about twenty minutes past the last-mentioned hour. Amongst those who took part in the procession we noticed Messrs SH Barnes, Mayor of Mudgee; AH Cox, JP, Mayor of Cudgegong; G Warburton, PM; JD Cox, JP; R Lowe, JP; V Cox, JP; RHD White, JP; JP Dicksen, MH Todhunter, F Mueller, W Lowe, LOD James; G Leary, Clerk of Petty Sessions; J Dart, Secretary of the Reception Committee; Aldermen G Davidson, T Smith, Sheppard, and Sherry; Dr Rowling, WR Lester, W Bishop, D Scott, S Malone,—Kevin, Canon Gunther, S Blackman, JP,—St Clair, H James, and G McQuiggin.

    On arriving at Murray’s Inn, about two miles out of town, it was deemed advisable to halt until his Honor’s carriage came into sight; and this was not until fully an hour had elapsed. As it drove up, escorted by a body of mounted police, under the command of sub-inspector Medley, the various vehicles, &c, ranged on each side of the road to allow it to pass through, and, as it did so, his Honor courteously returned the salutation with which the public greeted him.

    No stoppage was made, and on arriving at the Belmore Hotel, Sir Alfred Stephen, who was accompanied by the Clerk of Arraigns (Mr GG Deas Thomson), alighted and proceeded to his apartment, where several gentlemen were introduced by sub-inspector Medley to his Honor.

    The members of the reception committee having welcomed his Honor to the town, he, in reply to their inquiry as to the most convenient time for an address to be presented to him, named the following morning at a quarter to 10 o’clock. It was then intimated to his Honor that a large number of the inhabitants had assembled outside the hotel to welcome him and he was invited to walk into the balcony. As he did some one in the crowd called for “three cheers for Sir Alfred Stephen,” which were heartily given, and the Harmonic Band, which was in attendance in a conveyance, struck up the National Anthem.

    HIS HONOR having advanced to the front of the balcony, addressed the assemblage, and said:—“I do not know whether I can make myself heard by all who are present, but I am glad of the opportunity of thanking you for the respect and marks of attention I have met with on my journey hither. I do not recognise these marks of respect as to myself individually, but as marks of the honour and respect in which you hold the law, which I may be said to be the representative of here. And nothing can give me greater pleasure than the manner in which you have received me in that capacity. I congratulate you very cordially on the institution of a Circuit Court here, and hope heartily that both now and in the future it may be a benefit to yourselves and the colony generally.”

Mudgee courthouse plaque. Photo: Peter Bonsall-Boone
Mudgee courthouse plaque. Photo: Peter Bonsall-Boone

    At the conclusion of Sir Alfred Stephen’s speech there were cheers, and the Mayor of Mudgee having called for three cheers for the Queen, they were given right heartily, the band playing, after which his Honor retired.

    The following address was delivered by the Chief Justice on Thursday, on the occasion of opening the first Assize Court held in Mudgee:—

    SIR ALFRED STEPHEN said:—“On taking my seat in this place for the first time, and on an occasion of so much importance to the district as the opening of its first Circuit Court, I shall not be thought unduly to detain the gentlemen who are summoned here as jurors, the members of the Bar, the magistrates, and others whom I see around me, by addressing to them some observations on the nature and object of the duties which are here to be discharged, and on one or two kindred topics—having reference more especially to the prevalence and repression of crime. If in doing so I shall appear in any degree to exceed my province as a Judge, or to express opinions too authoritatively on subjects with which are equally competent, and perhaps better entitled to deal—my apology is their grave importance—their appropriateness to the occasion which brings us here, and the persuasion that they will be of use if only as materials for thought. And I may be pardoned for reminding you, that at least those opinions come recommended by no light or recent study; but are the result of an experience, legislative and judicial, extending over more than forty years.

    “The establishment of a Circuit Court in any locality, possessing as this tribunal does the highest powers incidental to the trial of cases, civil and criminal, is on many grounds—and more prominently those in reference to which it is too often sought—a matter of congratulation to the town and neighbourhood, and I cordially offer you my own. It will be generally admitted, that no portion of the colony is better entitled to the distinction, or could more justly claim the responsibility, than this wealthy and important district. But the establishment is not an unmixed good. It entails on the inhabitants onerous and very painful duties, and it is of these mainly that I desire to speak. If they be rightly understood, and discharged with conscientiousness and intelligence, the erection of this Court will then have conferred inappreciable benefits, not on the district alone which it embraces, but on the community at large. I am aware that many are present, who have already in the existing Court become practically familiar with those duties; but those gentlemen will, nevertheless, I trust, pardon me for the remarks which follow—made not more for their consideration, than that of others, who probably have less reflected on the subject, and others, into whose hands this address may fall.

    “We are here, in the hall of Justice—I should prefer to call it the Temple of Truth. Our object, as it regards the administration of the Criminal Law, is simply the repression of crime. The direct incentive to good conduct, to abstinence from offence against the laws, by the concession of rewards, is unknown to jurisprudence. We endeavour to restrain crimes, whether against society or individuals, by the terror solely of inflicted punishment. But in the carrying out of this great object, equally for the security of the person and the preservation of property, and of life, it is obvious that our first necessity is the ascertainment of facts. When the law has been violated, in other words, an offence committed, we have to discover who is the criminal; and this is the all important task and duty confided to a jury. The same is to be said, in effect, as to the administration of the law in Civil cases. Until the facts of a case are understood, and have been declared, the office of the Court or Judge in determining the right or liability of either party is in abeyance.

    “It follows that in both jurisdictions alike, while truthful testimony and a dilligent [sic] search after truth are essential, justice cannot be administered nor its ends attained without the honest unflinching assertion or declaration of the truth. To this, the peculiar privilege and province of jurors, in comparison with which the power and duty of the Judge are but secondary, I ask your attention. With the consequences to flow from your verdict, you have nothing to do. The result depends on the law. If this be harsh or unreasonable, the Legislature which represents you has the power to amend it. But you cannot with a clear and enlightened conscience declare that to be false, in any case, which you would, if the law were otherwise, unhesitatingly pronounce to be truce.

    “This admonition is so unanswerably just, the position so impregnable, that the caution would seem to be unnecessary. But it is not so. Take two recent examples. The law pronounces any illegal encounter, in which blows are struck from which death ensues, to be manslaughter. The jury, nevertheless, in a late case, where the facts were clear against the accused, acquitted him from motives of compassion—and because they thought that the deceased provoked him to the combat. In another case, a ruffian had brutally attacked two women, and seriously wounded, in an attempt to kill, a bystander, who interfered to protect them. The prisoner being found guilty of that charge, was executed. Immediately thereafter one of the jury, because he disapproved of that punishment, published a declaration that he would never have been a party to the verdict had he contemplated such a result. In other words, that although on oath he had declared the accused to have meditated death, this juror would have perjured himself by deliberately asserting a belief that the man had not mediated it. In each of these cases how strange was the ignorance of duty—the want of the moral sense; the contempt equally of law and of the proved facts. In each, Truth seems to have been regarded as a thing of no account; to be dethroned and trampled on, at discretion, in that which should be her sanctuary. I select instances from another colony; but it is right to say that we are not without similar examples in our own.

    “I am prepared to vindicate the law, which places the crime of wounding, with the design to murder, in the same category with that of accomplished murder. The latter, in the popular view of it, is the most awful of all crimes. But, in point of fact, and in legal contemplation, it comprehends many degrees of atrocity—some of which are infinitely less wicked, both in act and intent, and in their consequences less cruel, than the stabbing or otherwise wounding of a person, whom the criminal seeks and perhaps does his utmost to murder. I will give but a few examples of very many tried by me. A small settler, living beyond Berrima, was travelling in his cart to Sydney, in order to dispose of some produce and bring back articles for his family; when he was accosted by a foot-sore traveller, who begged of him a ride for a few miles. The settler took the man up, gave him food, shared his lodging with him that night and proceeded with him as far as Liverpool; when, on passing through the scrub near that town, the kindly old man was suddenly shot through the back by his pilgrim friend. He fell instantly from the cart, but was pursued and again shot in the side and left for dead. The miscreant then drove the cart with its contents to Sydney, where he sold them as his own. Did the accidental, the almost miraculous recovery of the wounded man, I ask, affect in the slightest degree the character of that most atrocious crime? Could the unfortunate victim’s death, a result dependant on temperament, on skilful treatment or the reverse, on his previous bodily health, the state of the weather, or some supervening disease, have made that crime worse? Why then should the degree of punishment vary with the result? To the same class of crime, which that case illustrates, belong—although wanting its peculiar aggravations—the attempt on the life of the Duke of Edinburgh, the firing down on the constables in charge of the gold escort, and many other cases which I forbear to enumerate, some of them involving details of unusual horror.

    “I unhesitatingly add to the list of crimes equal in wickedness to murder, unless of the worst type, cases of rape, committed on unprotected women in the wild bush, and some other aggravated cases of that class—such, for example, as the perpetration of the outrage under threats of death, or in pursuance on an intention previously formed, and thus not the result of sudden temptation, or when committed under more than the usual circumstances of brutal insult or violence.

    “I have said in substance that our object here is primarily the search after truth; the ultimate object being, by the discovery and punishment of the criminal, the diminution of crime. No object of greater importance socially can readily be proposed to us. For, as has been well observed, crime rapidly begets crime; and if its punishment be costly, as it ever will be, not to punish crime will be found to be infinitely more costly. So that legislators have to consider what measure and what degree or kind of punishment are the best calculated to deter men from crime. That subject is one to wide, and too remote from our immediate purpose, to be entered on in this place. But, as crime never can be repressed, whatever the punishment, by the substitute of the innocent for the guilty (to say nothing of the wickedness of the idea), we have in British jurisprudence established two maxims of universal and unswerving application. The one is, as you all know, that every person shall be presumed innocent until he be shown to be guilty; the other, that no one shall be pronounced guilty where a reasonable doubt exists as to that guilt. The latter rigid rule, humane and just in itself, has been so misunderstood or perverted in modern times, that we owe to it not infrequently the most discreditable acquittals, as injurious occasionally in the sequel to the accused as they are in immediate consequences to the community. It we recoil instinctively from the bare suspicion of one mistaken conviction, and admit, as all must, the frightful evils of so sad an error, we cannot deny that a large or greater amount of mischief is inflicted on society by unrighteous impunity often extended to proved criminals. And I attribute this result, in the cases which I have witnessed, to one of three causes—to prejudice conceived against the prosecution, because of undue pressure or the like on the prisoner; to sympathy with him, in itself inevitable, under the peculiar circumstances of his case; or to misapprehension respecting the value of some discrepancies in the evidence, or to a vague general distrust of that which is called circumstantial testimony.

    “As to the first of these causes, I trust that it is unnecessary here to say more than I have done. As to the second, I would entreat jurymen (if I may pardonably so express myself) to use more freely the thinking faculty; to reason for themselves, according to their own generally excellent sense, on the probabilities of the case before them; and not suffer themselves to be led astray by any declamation, respecting minute if really unimportant variances. There are some discrepancies, small in themselves, but important in character, which will at once legitimately destroy the credibility of any story. Every person of reflection and experience knows, on the other hand, that variations in the account of a transaction, not merely discrepancies between the narration of two or more witnesses, but between that of the same witness given at different times, are frequently met with; and yet that in the main—in all that is essential to the point—the account is perfectly true. The condition of human testimony, says Paley, is substantial truth under circumstantial variety. On the third assumed cause, I venture to offer the following observations: the same in effect as I have in my judicial career often made to juries—but on this occasion perhaps more carefully prepared.

    “In the first place, then, this kind of evidence—speaking of it now as a distinct species, which logically is it not—should be acted on with caution. For the anxiety to detect a crime—and especially a great crime—may have let the witnesses to mis-state or exaggerate facts, and may lead the jury to draw unfounded inferences. And particularly this may occur when the question is as to expressions used by that suspected person, or his demeanour on some occasion. Moreover, not only may the inference from each separate fact be mistaken, but every matter of fact in succession, or some one material if not essential matter, may have been falsely sworn to. Secondly, in arriving at the final result of guilty or not guilty, the conclusion of guilt must not only be itself a rational one under the circumstances, but it must be the only rational conclusion which reasonable and reasoning men would draw. And one single fact or conclusion, not simply difficult of reconcilement, but absolutely and clearly irreconcilable with the supposing of guilt, will countervail any number of opposing circumstances. But, lastly, if all these considerations be taken into account by the jury, and every fact or suggestion for or against the accused be anxiously weighed by them—always assuming the jurors to be men of the ordinary intelligence and experience in affairs—a conviction founded on circumstantial evidence is, in my deliberate judgment, equal, if not superior, to direct testimony. An eminent writer has the following remarks on the subject; and with them I close this long address to you:—‘Every single fact, either in nature or science or the conduct of men, is known by common experience to have invariably, or with rare exceptions, certain causes and concomitants; and it is on the connection between these that the value of circumstantial testimony depends. All men, more or less unconsciously, act on the presumptions—the inferenees from know to unknown facts—which this connection supplies, in their own affairs and in judging of the conduct of others; and in the majority of instances it will probably be found that men thus reason and judge rightly.’ ”

~ ~ ~ ~ ~

The Maitland Mercury and Hunter River General Advertiser, Thu 24 Apr 1873 2

(Abridged from the Mudgee Times, April 18.)

Mudgee courthouse completed 1862. Photo: Peter Bonsall-Boone
Mudgee courthouse completed 1862. Photo: Peter Bonsall-Boone

    The first assize court in Mudgee was opened on Thursday, April 17, by his Honor Sir Alfred Stephen. The Solicitor-General prosecuting for the Crown.

    After the usual proclamation had been read, his Honor delivered an address, congratulating the inhabitants of the new circuit upon the establishment of an assize court, and referring to the nature and object of the duties there to be discharged, as well as to kindred topics connected with the prevalence and repression of crime.

    Cobby, an aboriginal, was put on his trial for shooting Jacky, another aboriginal, with intent, but counsel having been assigned, the trial was not then proceeded with.

    John Morton, convicted of an attempt at bestiality, [with a bitch dog ], at Gulgong,  was sentenced to twelve months’ imprisonment with hard labour.

    John O’Brien was arraigned for an indecent assault upon a girl named Mary Ann Inglis, aged eleven years and six months. After hearing the evidence of the child, the child’s mother, two doctors, and the sergeant of police, the jury convicted the prisoner. His Honor, in passing sentence, concurred in the verdict, characterised the crime as a most cruel one, and pronounced a sentence of five years’ hard labour on the roads.

    John Thrussell was charged with assaulting one Francis Hoare Symes. Prosecutor deposed that on the 13th March he was on his way from Home Rule to Gulgong, when he missed his road, and called in at a public-house in Lowe’s Paddock. Prisoner, who was there, demanded 23s which he alleged to be owing, and when Symes refused to pay it, prisoner assaulted him, and asked for his watch as security for the payment of the money. Prosecutor in fear gave it up, and prisoner handed it to the landlord to keep. In defence prisoner elicited the fact that prosecutor owed him the money he had demanded from him, and called witnesses who proved that the leaving the watch was voluntary on the part of prosecutor. The jury convicted prisoner of the assault, and he was sentenced to pay £5, or to be imprisoned till the fine was paid.

    The Court adjourned till next day.


1  The Sydney Morning Herald, Mon 21 Apr 1873, pp. 2, 3.

2  The Maitland Mercury and Hunter River General Advertiser, Thu 24 Apr 1873, p. 4. Emphasis added.