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

R v Polack [1825] NSWSupC 13

perjury - oaths by Jews - supervision of inferior courts

Supreme Court of New South Wales

Forbes C.J., 14 February and 11 April 1825

Source: Australian, 17 February 1825

 

Monday.  This was an information filed by the Attorney General,[1 ] at the instance of Mr. Josephson, against A. Polack, for wilful and corrupt perjury, in swearing that Mr. Josephson, during the time that he (Polack) lived with him, was in constant habit of removing his jewellery from the shew cases every night to his bed-room.  The circumstances which led to this prosecution having been stated.

Jacob Josephson, a jeweller, of Pitt-street, stated, that on the 27th December, two glass cases, containing a quantity of jewellery, was stolen from his shop; he went early in the morning to the Police Magistrate to report the same, and to have search warrants against some suspected persons.  The Magistrate told him, from what he had heard from Mr. Dunn, the chief constable, respecting a conversation between Abraham Polack and Dunn, he did not believe that such a robbery had taken place, but directed him to attend at nine o'clock; he attended, and whilst he was there the defendant passed the street, and was called by the Magistrate, and swore that during the time he lived with him, he (Josephson) was in the habit of removing the said jewellery out of the cases every night to his own bed room, and replacing the same in the morning; witness has never, for the last two years, removed the jewellery from the said cases.  The jewellery are always covered with silver paper; and the jewellery are placed in such regular order, that he could not miss any of them at first sight.

Cross-examined.  He may have removed cases, but not the cases in question.  Upwards of two years ago he removed them; he did not swear to the robbery before Polack appeared, and took the oath.  He wished it to be understood, amongst a certain set of people, that he was in the habit of removing the jewellery from the shop at night.  He kept one key of the cases, and Mrs. Josephson the other.  Didn't know that the defendant could prove any particular thing against him, in an action between himself and Mr. Ewin Forbes, except about £300 -- the action is for £3,000.

D'Arcy Wentworth, Esq. Superintendent of Police, stated that on a Saturday, Josephson came to him in the morning, and stated he had been robbed  in consequence of what Mr. Dunn reported to him, respecting a conversation between himself and Polack, that Josephson was in the habit of removing the jewellery from the cases every night; he did not believe the report.  Polack passed the street casually, as they were talking, and witness called and swore him to that circumstance, as a Jew, to the best of his recollection, with his hat on, and considered it to be a judicial oath.

Mr. Dunn, chief constable, stated, that on the 27th December, to the best of his belief he had some conversation with the defendant; that Josephson was in the habit every night of removing the jewellery from the shop to his bed-room.  The oath was administered to the defendant before 10 o'clock in the morning, before the general business of the Office.

Mr. Robinson, principal clerk proved Polack to have sworn that Josephson was in the habit of removing his jewellery.

J.T. Campbell, Esq. Magistrate, stated he was present when the defendant was examined on the Monday at the Police office  Josephson charged Polack with perjury; went into the matter, but did not believe the robbery; believes the defendant was sworn in the usual way.

Edward Galway, Jeremiah Gardener, Bernard Levey, Dr. Bland, and Mr. Casper also were called on the part of the prosecution.

Some witnesses were called on the part of the defendant, but they could not prove whether Josephson was in the habit of removiug [sic] his jewellery during the last two years.

The Chief Justice summed up the evidence to the Jury at considerable length.[2 ]

The Jury after retiring for about three quarters of an hour, gave in a verdict, that the defendant, Abraham Polack, was guilty of perjury  leaving it with the Court to consider whether the oath had been administered to the defendant in a judicial manner.

At the Instance of the Counsel for the defendant, the Chief Justice appointed this day fortnight for a motion in arrest of judgment to be assigned, allowing the defendant to enter into sufficient recognizances for his appearance on that day.

 

 

Source: Australian, 14 April 1825

 

It will be recollected that the defendant had been tried on an information filed by the Attorney General, at the instance of Mr. Josephson.  The information stated that Polack, during the course of an investigation before the Police Magistrates into an alleged robbery on the premises of Mr. Josephson, had falsely sworn that Mr. Josephson was always, during a certain period, in the habits of removing his jewellery from the shop into his bed room.  The jury then found a verdict of guilty, reserving the consideration of some law points raised by the defendant's Counsel, to the opinion of the Court.  These points, the principal one of which was that the proceedings before the Magistrates were not judicial, were argued subsequently to the trial.  The Chief Justice, this day, gave his decision, which was that he did not think this a case on which he could pronounce judgment on the defendant, inasmuch as the whole proceedings of the Magistrates, on the occasion in question, were so irregular that they could not be deemed judicial. -  Defendant was therefore acquitted.

 

Notes

[1 ] Saxe Bannister.  After this case, Polack sued Josephson for malicious prosecution: see Polack v. Josephson, August 1825.

[2 ] The Sydney Gazette, 17 February 1825 made an important addition here: ``The Chief Justice observed, that an oath taken by a Jew in a Court, was as equally binding and as solemn, as that of a Christian  and the same liabilities existed; but if a Jew was sworn upon a book only, without any form, he could not be said to be sworn according to form; the question for the Jury to arrive at was, whether he was sworn upon the Holy Gospel or not, as set forth in the information."  On this case, see also Sydney Gazette, 31 March 1825.

Published by the Division of Law, Macquarie University