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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Gilchrist [1819] NSWKR 8; [1819] NSWSupC 8


Court of Criminal Jurisdiction
Wylde J.A., 21 September 1819
Source: Sydney Gazette, 25 September 1819

This day Mr John Gilchrist was put to the bar, and charged with ... forgeries, upon one of which his trial proceeded. This was an acceptance to a draft of the prisoner's for ¿54 17s purporting to be the acceptance of Mr Rowland Hassall, of Parramatta, dated the 26th of March, 1819, drawn at three months, which said draft the prisoner paid to Mr Campbell, of Bligh street, on or about that time, who had it discounted at the Bank, where it remained until overdue, and on its presentation to Mr Hassall, the presumed acceptor, turned out to be a forgery. The prisoner pleaded not guilty.

The first witness called in support of the charge was Thomas Dunn; who had lived several years as servant to Mr Hassall, and had frequently seen him write his name which was not like the writing of his name upon the instrument now produced to him; but he had not seen him write for the last eight years.

Mr John Redman next deposed, that in his public capacity he had been for the several last years in the habit of receiving returns from Mr Hassall, who was the Principal Superintendent of Government Stock, addressed to His Excellency the Governor, with Mr Hassall's name written by himself, as he always considered, in the left lower corner of the envelope; which signing materially differed from that upon the draft now shewn to him.

Mr Francis Oakes, Chief Constable of Parramatta, deposed, that he had been many years in the habit of seeing Mr Hassall write; and that the signature before the Court differed materially in its character from his true signature.

Mr Edward Eagar deposed, that he was well acquainted with Mr Hassall's hand writing, which materially differed from the signature before the Court; in which he could have no doubt was a forgery. In answer to interrogatories from the Court, Mr Eagar stated, that when the discovery of the fraud first took place, he had had a conversation with the prisoner on the melancholy subject, and was buying him given to understand that Mr Hassall's acceptance was a forgery, lamenting at the same time the unhappy infatuation that had induced him to perpetrate the crime. At the time of his making this acknowledgement to the deponent, which was voluntary and of his own accord, the prisoner was not in custody, and had no promise held out of interference upon his part in his behalf; though he the deponent would willingly have paid that bill, from the good opinion he had ever previously entertained of him. In cross-examination the prisoner at the bar suggested a wish to question Mr Eagar as to his opinion of his intention in committing the facts before the Court, as by such order of examination he had no doubt he should be able to exculpates himself from the charge of fraudulent intention; but this suggestion was overruled by the Court; His Honor the Judge Advocate explaining, that as the Law had made forgery a capital offence, the Court must necessarily infer the intention of fraud from the perpetration of the act itself. Every forgery that came within the statute was made capital, and could admit of no qualifying plea. The very statute in respect of the offence had been instituted for the security and protection of the Public against fraud, as other statutes had been; and if a precedent of the nature suggested by the prisoner were to be allowed, it would be impossible to say whether it would terminate; for every transgressor of the Law might equally urge his plea of non-intention; but no, the perpetration of crime is that the hazard of the delinquent; and the Court was therefore to judge only of the fact, without any recurrence as to what might have passed between him and Mr Eagar after the crime had been committed. It was for the Court to judge of the intention from the evidence that should come before it, and there was no other possible criterion by which its judgement could be formed. The next witness called was:

Mr Francis Williams, Secretary and Cashier to the Bank; who deposed to the draf in question having been discounted at the Bank about the latter end of March last; and when due was tendered to Mr Hassall, the presumed acceptor; who denied any knowledge of it. Mr Campbell, by whom it had been paid in to the Bank, was then sent for, and the affair was explained to him. Mr Gilchrist sent a note to the deponent stating his intention of calling at noon to take up the bill, and shortly afterwards appeared in person, when he much regretted Mr Hassall's having seen it, saying that circumstances would be his ruin. Mr Williams, the deponent, laid the bill before the Board, and the prosecution commenced accordingly.

Mr Campbell sworn. He received a bill from the prisoner at the bar the latter end of March; the acceptance was upon it; he tendered it at the Bank, but it was not discounted the first week because it was not made payable at any fixed place; he informed the prisoner of its rejection and the cause; prisoner took it away, and returned with it corrected; saying that Mr Hassall was a good deal hurt at its rejection, but if this did not do he would never put his name to another bill of any kind. Shortly after the bill becoming due, a messenger from the Bank required his attendance on the President and Directors; the prisoner had at the same time called at his house; he was made acquainted by the Board of Directors with the extraordinary and unexpected circumstances of the fraud; and on returning home asked the prisoner whether it was actually a forgery or not? To which he received an answer in the affirmative; with the addition that it was a very unfortunate circumstance; but that he, the prisoner at the bar, was willing to assign over to deponent all his property in any way he thought proper, to secure the eventual payment of the amount, and requesting him to take the bill out of the Bank; which Mr Campbell had proffered to the Bank Solicitor before this conversation took place; but the proffer was of course rejected. On cross-examination Mr Campbell declared that, from the good opinion he had ever entertained of the prisoner's principles, he thought him a man incapable of such an act.

The evidence for the prosecution here closed and the prisoner went upon his defence. He was permitted to read a written statement; which bore chiefly on the non-intention to commit fraud; which argument he endeavoured to sustain by a declaration of his design to have taken up the bill before it became true; and his Advocate, by whom he had been ably assisted on the examination, argued a point of law in behalf of the prisoner with much ability and perspicuity; but failed in its object.

The defence concluding, the Members withdrew to the chamber of consultation: and after an absence of nearly an hour returned to their seats upon the Bench; when the Learned Judge of the Court (Wylde) after expatiating at considerable length on the direful consequences to Society of crimes of this description, which he had to lament had in this Colony been carried to an alarming extent, thought it necessary to offer, a few observations on the nature of the plea upon which the prisoner at the bar had lain such considerable stress; namely, that of non-intention to commit a fraud, although that fraud had been evidently completed. It was impossible to look into the hearts of men, and from their actions only, which were apparent, could an inference of the designs be drawn; nor in a case like the present was it needful to travel beyond the completion of each particular act connected with the offence. The instant the fatal name was written the forgery was completed; and as soon as it passed into another hand the uttering was effected; he (the prisoner at the bar) had drawn upon himself the complicated charge both of forging and of uttering, and both these charges were established.

All therefore that remained with him was the painful duty of pronouncing him Guilty by the Verdict of the Court

The prisoners Advocate (Garling) interposed a notice for arrest of judgement; and the prisoner was remanded, and directed to be brought up for judgement on Thursday; upon which day the prisoner was again placed at the bar; when his Advocate with his usual ability argued the points upon which he had grounded his application for arrest of judgement; but which was overruled; and sentence passed upon the prisoner, condemning him for life to Newcastle.

Published by the Division of Law, Macquarie University