Mr. Justice Harding May 11, 1895

*THE WORKER*

BRISBANE, MAY 11, 1895.

A Most Upright Judge!

A Queensland Windeyer.

The quality of Mercy is not strained,

It droppeth as the gentle rain from heaven

Upon the earth beneath; it is twice blessed;

It blesseth him that gives and him that takes,

'Tis mightiest in the mightiest; it becomes

The throned monarch better than his crown.

Shakespeare, Merchant of Venice.

Justice Harding Censures an old man.

The Rockhampton “Argus” Censures

Justice Harding.

The trial of Richard Spencer before Mr. Justice Harding in the Rockhampton Circuit Court on April 23^rd. Again draws public attention very forcibly to the near approaching time when the present almost uncontrolled power of the judges of the colony's courts of law must be restricted within well-defined limits. It has been epigrammatically said that when a man makes too prominent his dignity, it is as with a woman who speaks o'er much of her virtue – a lost possession.

And Mr. Justice Harding has an unfortunate habit, when on the bench, of being ever so keenly alert to discover somebody doing something that can be construed into contempt of court, that the suspicion occasionally arises whether the whole of his attention can be given – as it should be – to the intricacies of the case before him.

And equally unfortunate, at such times, the justice himself is most dangerous to his own dignity, with seeming unconsciousness of the fact. This peculiarity was very marked during yesterday's sittings of the court.

Had it been confined to such ludicrous absurdities as startling the police by the announced suspicion of fireworks about to explode within the sacred precincts of the Temple of Justice, it could have been ignored as the eccentricity of genius, or the petty irritability caused by an overtaxed brain.

But Mr. Justice Harding's offending – for it really was serious offending – was of a much graver nature.

The prisoner before him was a man whose allotted three score years and ten of life were nearly run; a man suffering from the painful disability of deafness. The prisoner had fired at a boy found stealing fruit from an orchard. The offence with which he was charged (attempted murder) was one the punishment of which is the highest the law inflicts next to death.

Unable to employ legal assistance, equally unable to hear a word addressed to him unless it was shouted into his ear at close quarters, he was an object pitiable enough to move any ordinary man to compassion.

Acquainted of these facts – facts proved beyond doubt during the police court proceedings – Mr. Justice Harding contemptuously put them aside, and angrily stated he was satisfied in his own mind that the prisoner was determined not to hear what the court said.

And not content with having declined belief in the unfortunate man's infirmity, and inferentially accused the Crown Prosecutor of falsehood, Mr. Justice Harding, in reply to a request from the prisoner – who, in the eye of the law, was then an innocent man – that he might be allowed to approach closer to the bench so as to enable him to hear what was said, deliberately taunted him by saying, “I will not change places with you, although it might be very desirable on your part.”

And as, by this time, the prisoner “had been reduced to a state of nervous fright” that affected the muscles of his face, the justice, with childish captiousness, accused him of grimacing and making faces at the court.

“Instead of listening you are standing there grimacing at me,” said the judge to the prisoner; again, “When I speak he makes a contemptuous motion,” and “He is making faces at me now.”

And all this time, for all the wretched man in the dock knew to the contrary, the judge might have been passing sentence of death upon him, or, on the other hand, telling him he deeply regretted his infirmity.

* * *

With this unconcealed ill feeling by the bench towards the prisoner, the trial commenced. The case for the Crown opened and closed; the prisoner, with an earnest eloquence that showed deep feeling, asserted his innocence of any criminal intent when he fired the shot that led to his arrest and committal, and – then the judge “summed up” to the jury.

In doing so, Mr. Justice Harding exceeded even the most extreme lengths justices occasionally allow themselves to go.

He, at the outset of his charge, gave prominence to the assertion that, had the lad died, the prisoner would have been charged with wilful murder.

Had that happened there would not have been one tittle of evidence in support of that charge.

There was no proof of malice or premeditation, the whole trend of the case for the Crown pointing, at most, to culpable carelessness. But Mr. Justice Harding went even further than this. He distinctly and deliberately advised the jury “There was sufficient evidence to convict the prisoner on either the charge of attempted murder, or the attempt to inflict grievous bodily harm.”

this was an absolute charge to the jury to convict the prisoner. It exceeded beyond decent limit the province of a judge, which is to direct the jury as to the law of the case, and leave them sole arbiters on question of fact.

Had the jury accepted the guidance of the Bench, Spencer's trial would not have been a trial by jury, but a trial by judge. They did not.

They weighed the evidence for themselves and acquitted the prisoner, both of the charge of attempt to murder, and that of the lesser offence of attempt to inflict grievous bodily harm.

Even then Mr. Justice Harding was not satisfied. He took the unusual course of instructing his associate to put the further charge to the jury; Was the prisoner guilty of unlawfully wounding?

This step was taken under the judge's interpretation of the fifth section of the Criminal Practice Act of 1863, which provides that on the trial of any indictment for feloniously wounding, the jury may acquit of the felony, and convict of unlawfully wounding.

But the jury had evidently arrived at the conclusion that the whole affair was purely accidental, and they had the moral backbone to hold to their opinion. Spencer, tried by the jury, was allowed to end his few remaining years at liberty.

Had the jury been guided solely by the judge, his fate would have been a different one.

The case is important as showing the absolute necessity for citizens acting as jurors not to sacrifice their priceless power to the biased dictation of a judge; not to allow the opinions of twelve men to be overruled by that of one. The case has also another significance. Judges are appointed during the continuance of good behaviour.

What constitutes “good behaviour” on the part of a judge in the discharge of his judicial duties?

A judge is only answerable to the Parliament of the country for his actions, but of late the actions of some of the judges are becoming so peculiar that the time seems to have arrived for Parliament to take note of them.