The prisoners could not have that fair and impartial trial which justice demands': A fair criminal trial in 19th Century Australia

• Author: David Plater and Victoria Geason
• Position: BA, LLB, LLM, PhD, Senior Lecturer, School of Law, University of Adelaide; Deputy Director, South Australian Law Reform Institute; Adjunct Senior Lecturer, Faculty of Law, University of Tasmania/BBus, LLB (Hons)
• Pages: 161-203

161

“THE PRISONERS COULD NOT HAVE TH AT FAIR AND

IMPARTIAL TR IAL WHICH JUSTICE DEMANDS”: A FAIR

CRIMINAL TRIAL IN 19TH CENTURY AUSTR ALIA

D P*  V G**

A

e notion of a “ fair and impartial trial which justice demands” requires

jurors to have regard only to the evidence prese nted at trial and discount anything

they may hear or read outside court. Prejudicial publicity and prejudgement

challenging an impartial jury is not a new proble m, but have proved problematic

since at least the 1800s. is article considers how trial by media was a recurring

19th-century concern in both sensational and routine criminal cases in England

and Australia. e authors draw on the extensive press archives of the period and

through examples of 19th-century Australian case studies (reinforced by English

examples) examine the problem of prejudicial pre-trial publicity and the various

19th-century remedies to address publicity and bias. It is argued that these

remedies were of little utility and trust was placed in the ability of 19th-century

jurors to heed judicial directions to have regard to only the evidence led at trial.

ough this premise was (and remains) questioned, 19th-century juries proved

capable of ignoring even the most hostile pre-tr ial publicity and an impartial jury

was not an ignorant jury. It is argued that 19th-century jurors ultimately had

to be trusted to follow judicial directions. is premise remains but its continued

validity is now further challenged by the internet and social media.

I. I

… the public mind has been considerably prejudiced.

At present, I am afraid the prisoners could not have that

fair and impartial trial which justice demands. I never

* David Plater BA, LL B, LLM, PhD, Senior Lecturer, Scho ol of Law, University of Adel aide;

Deputy Director, South A ustralian Law Refor m Institute; Adjunct Senior Lec turer, Faculty

of Law, University of Tasmania .

** Victoria Geason BBu s, LLB (Hons).

is artic le is part of an ongoing joint project by t he South Australian L aw Reform Institute

and the Tasmania n Law Reform Ins titute into the modern r ight to a fair tr ial and an

impartia l jury and the role of social med ia. e authors are grateful f or the assistance of the

2019 University of Tasmania Visiting Sc holar program and Holly Nic holls and Joshua Aike ns

of the Law Revie w class at the University of Adel aide. Any views expres sed in this article a re

those of the authors a lone.

162 Cante rbury Law Review [Vol 25, 2019]

knew a case in this colony in which the privilege of the

press has been so much abused as in th is. Every newspaper

in the colony has given a very one-sided account of the

whole matter.1

ese strong comments were oered by the New South Wales Attorney-

General in 1865 in deploring the pre-trial publicity and its implications

for a fair trial in the salacious case of Maria K inder and her married lover,

Henry Bertrand, accused of murder by poisoning and then shooting Henry

Kinder, Maria’s inconvenient husband. e case and the “immorality” of

the defendants attracted intense and hostile press coverage: “a case more

atrocious, more unreal, and more disgusting in its horrible details than any

before recorded in the annals of crime”.2 Cheek J expressed his agreement

with the Attorney-General and adjourned the tria l for two months “to give

the public excitement time to subside and to secure a calmer and fairer tria l”.3

Such cases as Kinder and Bertrand were not unusual in the 19th century,

notably in colonial Australia. In 1856, a notorious convict, George Nixon,

“the most malignant end that ever hissed at the Almighty”,4 stood trial in

Hobart before the Supreme Court accused of the sexua lly motivated murder of

a 14-year-old boy, Henry Chamberlayne. Nixon was convicted and promptly

executed for his crimes and condence was widely expressed that justice had

been done. Yet, such was the public passion and intense and hostile pre-trial

press coverage aroused in the case, that concerns were raised by defence

counsel and a handful of commentators as to whether a fair trial before

an impartial jury had been possible. As one columnist observed: “Between

accusation and guilty there is an awful distinction, which a prejudged or

biased intellect is certain to confound”.5

e “fair and impartial trial which justice demands”, integral to the

adversarial 19th-century crim inal trial, required a fair tria l before an impartial

jury.6 It was a central premise for jurors, as Innes J instructed an 1893 jury:7

1 “Alleged Murder of Mr Kinder” Empir e (Sydney, 19 December 1865) at 3.

2 “e Kinder Tragedy” Illustrated Sydney News (Sydney, 16 December 1865) at 3. Despite this

coverage and Be rtrand ’s conviction for murder, the prosecut ion, owing to a lack of “ hard”

evidence, ult imately withdr ew proceedin gs again st Mrs Kinder. Se e Empire (Sydney, 26

February 1866 ) at 5.

3 Sydney Mail (Sydney, 23 December 1865) at 4. e eective ness of this measure is d ebatable.

is is discu ssed further in Par t V.

4 “e Daily News in Conv ulsions” e Courier (Hoba rt, 24 November 1856) at 2.

5 “e Kingston Tragedy” Launceston Examiner (Launc eston, 20 November 1856) at 3.

6 is remain s a present theme. See Mi rko Bagaric “ e Communit y Interest in Bring ing

Suspects to Trial Trumps t he Right to an Impartia l Decision Maker — at least in Victor ia”

(2010) 34 Crim LJ 5.

7 “R v Reid a nd Rich” Sydney Morning Herald (Sydney, 11 August 1893) at 3. See also Daily

Telegraph (Sydney, 11 August 1893) at 3.

163“e prisoners coul d not have that fair and impartial trial which justice

demands”: A fair criminal trial in 19th Century A ustralia.

… not to allow anything in t he shape of a preconceived

notion of the case to inuence their judgment; they must

be guided entirely by the evidence that had been placed

before them.

e 19th-century criminal justice system operated on the basis (though

sometimes questioned),8 that such directions would serve as an eective

remedy to potential bias or prejudgement and jurors would faithfully act

upon any such directions.9

ough the issue has gained particular impetus and discussion with the

advent of rst, the 24 hour news cycle10 and, secondly, the internet and social

media,11 this article highlights the often overlooked fact that concern about

prejudicial publicity challenging the impartiality of a jury and the prospects

of a fair trial is not a recent development.12 is article draws on the extensive

press archives of the period13 and, through ca se studies from 19th century-

Australia, and reinforced by examples from England, shows that protecting

an accused’s right to a fair trial before an impartial jury was a regular 19th-

century concern for lawyers and the judiciary alike. ere was recurring

concern throughout the 19th century in England a nd Australia at prejudicial

publicity or prejudgement challenging jury impartiality. Such concerns were

not conned to only high-prole criminal cases but extended to “routine”

8 See, for example, “ e Late Murder” Sydney Gazette (Sydney, 14 June 1834) at 2; “e

Kingston Tragedy ” Launceston Examiner (Launces ton, 22 November 1856) at 2–3; and “e

Kingston Tragedy ” Launceston Examiner (Launceston, 2 0 November 1856) at 3.

9 See, for example, R v K ilmeister (No 1) [1838] NSWSC 105; Sydney Gazette (Sydney, 20

November 1838) at 3; R v Kilme ister (No 2) [1838] NSWSC 110; e Australian (Sydney,

27 November 1838) at 2; see also, Sydney Gazette (Sydney), 29 November 1838, 3; and “R v

Deeming” e Argus (Melbourne, 2 3 April 1892) at 3. Indeed, thi s premise remai ns valid.

See, for example, R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J,

614–615 per Brennan J; R v Yuill (1993) 69 A Crim R 450 (NSWCCA) at 453–454 per Kirby

ACJ; R v West [1996] 2 Cr App R 374 (EWCA Crim) at 385 –386 per Lord Taylor CJ; R v

Stone [2001] EWCA Crim 297 at [48], [50]; R v Abu-Hamza [2007] QB 659 at 682, 685–6 86

per Lord Phillip s CJ; and Dupas v e Queen (2010) 241 CLR 237 at [26]–[29].

10 See, for e xample, Joseph Flynn “Prejudicial Publ icity in Criminal Trials: Bri nging Shepherd

v Maxwell into the Nine ties” (1992) 27 New England Law Re view 857; and Michael

Chesterman “OJ a nd the Dingo: How Media Publicity Relat ing to Criminal Cases t ried by

Jury is dealt w ith in Australia a nd America” (1997) 45 Am J Comp L 109.

11 See, for ex ample, Caren Myers Mor rison “Can the Jur y Trial Survive G oogle?” (2011) 25

Criminal Ju stice 4; and Roxanne Burd a nd Jacqueline Horan “Protectin g the Right to a Fair

Trial in the 21st century : Has Trial by Jury Been Cau ght in the World Wide Web?” (2012) 36

Crim LJ 103.

12 Roach v Garvan [1740] 2 Atk 469 (EWHC Ch) at 472. Se e also David Be ntley English

Criminal Justice in t he Nineteenth Century ( e Hambledon Press, London, 1998) at 43–50.

13 Criminal procee dings of the per iod were typica lly reported at s ome length, often a lmost

verbatim, in the ne wspapers ran ging from the most s ensational suc h as murder (see Clive

EmsleyCri me and Society in England 1750–1900(2nd e d, Longman, London, 1996) at 44)

to even the routine.