Speaking positions

Research Brief 9


In April 1905, elderly Henry Ayling appeared before Judge Burnside and a jury of 12 peers in the Perth Criminal Court on a charge of bigamy. The key question during the trial centred on the validity of Henry’s first marriage, alleged to have occurred in Adelaide in 1877 almost 30 years prior to his most recent nuptials. Represented by Mr Russell the defendant pleaded not guilty to the charge. At the other side of the bar table the Assistant Crown Solicitor, Mr Barker, prosecuted for the Crown.

Both advocates ran a spirited case. Barker called three witnesses for the prosecution – a baker who attended the first marriage ceremony, the defendant’s daughter and a witness who provided evidence of the most recent ceremony. Russell cross-examined them and called one witness for the defence. His strategy was two pronged. First, he sought to cast doubt on the validity of Henry’s first marriage by questioning the character of his then wife and second, he argued that Henry’s seven year absence from that relationship voided his initial nuptials (as provided in s337 of the Criminal Code 1 and 2 Edwardi VII No. 14), if in fact it was legal in the first place. Russell set out his case by asking witnesses for the prosecution particular questions. The jury heard from the baker under cross-examination that Henry’s alleged spouse may have already married in England before they wed in the colonies. Later, Russell questioned Henry’s daughter on her mother’s relationship with another man who lived with them.

Russell stressed in his closing remarks that the prosecution needed to establish that the first marriage was ‘strictly proved’ and pointed to several examples of English and Irish case law to support his argument. Mr Barker had failed to do so, he suggested, and Russell moved to have the matter dismissed. The Crown was having none of this. Barker, addressing the jury said:

Mr Russell had paid considerable attention to the fact that it was necessary to prove the first marriage. That had been done in that case, as not only had the marriage lines been put in as evidence, but they had it from [a] witness … that … had been present at the first ceremony in 1887. The question for the jury was whether the accused had contracted a second marriage during the lifetime of his wife. That had been very clearly proved (West Australian, 5 April 1905, 2).

Judge Burnside summed up the relevant points for the jury, outlining the legal elements of marriage contracts in Western Australia, the reliability of the exhibits (including a marriage certificate) before the courts and what they might make of the evidence they had heard from witnesses. When the jury were unable to reach a verdict they were sequestered overnight. They returned the next day where Henry was acquitted.

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Making historical sense of historical trials like Henry’s bigamy case requires particular attention to criminal procedure. Much of this is about understanding speaking positions. Who is talking, at what part in the trial, and for what purpose? The law reports we read in newspapers and the depositions of witnesses taken at committal hearings are not unadulterated narratives. Both Barker and Russell elicited from the witnesses specific information that would support or call into question the element of crime. In this case, the Crown had to prove that Henry was already legally married when he walked down the aisle in Fremantle in 1904. Barker’s main play was to establish these facts.

With the burden of proof falling to the Crown – as Russell so eagerly pointed out in court –Barker needed to ascertain the first marriage remained valid and binding. But in arguing the first marriage was annulled by Henry’s extended absence, Russell had also introduced facts which he himself was obliged to demonstrate. When the jury foreman returned to court the following morning to seek information on whether it was responsibility of the prosecution or the defence to prove that the accused had been living apart from his first wife for seven years, Judge Burnside clearly indicated that such a requirement lay with Russell. The jury were clearly unsure about what elements each side had proved and who was required to do so. In any case, the judge was allegedly unimpressed that the jury was unable to reach a verdict after 45 minutes (which had occurred a number of times in recent sittings), leaving Burnside to ‘hint at his intention to try stronger measures in order to secure verdicts’ (West Australian, 6 April 1905, 7). Unfortunately, we do not know what these ‘stronger measures’ entailed, but perhaps Burnside intended to keep a tighter rein on the way that advocates like Barker and Russell ran their evidence-in-chief and cross examination.

Criminal trials like Henry’s are really conversations between the central actors in court. Exchanges between the bar table, the witness box and the bench are inflected by the rules of evidence and procedure and court etiquette. We need to understand who is authorised to speak at different parts of the trial, to whom they are speaking, and what they are seeking to tell so as to get a fuller sense of the stories told in court.


Author: Dr Yorick Smaal, Postdoctoral Research Fellow

To cite this research brief: Yorick Smaal, ‘Speaking positions’, The Prosecution Project, Research Brief 9, https://prosecutionproject.griffith.edu.au/speaking-positions (7 April 2015, viewed 19 July 2016).