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

R v Bryan [1826] NSWSupC 66

forgery - death recorded

Supreme Court of New South Wales

Stephen J., 13 November 1826

Source: Australian, 15 November 1826

 

Alfred Bryan was indicted for forgery.  A second count charged the prisoner with being the utterer of the said note.[1 ]

Julia Holland deposed that she knows the prisoner.  About six weeks since she received a paper from him, which he said was a Bank cheque for £5, and desired her to send it to the Bank next morning for the purpose of getting it cashed.   She did so, and employed a servant man named Flynn on the errand.  A paper was here handed to the witness - it is the same she received from the prisoner.

Bartholemew Flynn was employed by the last witness about a month ago to take a £5 order to the Bank and get it cashed.  He took it to the Australian Bank and presented the cheque to Mr. McVitie; that gentleman said it was a forgery.  Witness was detained in the Bank, and a constable sent for; he stated of whom he received it, and was subsequently liberated.

Mr. McVitie examined - I am managing Director of the Bank of Australia.  A cheque, purporting to be drawn by T. Icely, was presented to me by the last witness, it was sometime in the beginning of last month.  I know Mr. Icely's signature.  I had no hesitation in thinking the signature to the paper then produced was a forgery; and I am of the same opinion still.

Mr. A.K. Mackenzie - I am Cashier of the Bank of New South Wales. I have repeatedly seen the signature of Mr. T. Icely - the signature of T. Icely on the paper produced, is a forgery, I would not have paid the Cheque had it been presented to me.

The case for the prosecution here closed.  The prisoner denied the charge.

The Judge said there was a something particular in the note, which had been produced; and it required some attention.  The terms of the note ran thus: - Sydney, 2d October, 1826.  To the Cashier of the Bank of New South Wales, please pay Mr. Alfred Bryan, or order five pound sterling, (SIGNED) "T. Icely."

The note, it would thus appear, was not drawn in the usual way of pay, - Mr, - or bearer, but was defined to the words Mr. - or order; here it was necessary, in order to make the note negociable [sic], that the name of the person, in whose favour it alleged to be drawn, should be endorsed on the back.  There might be a doubt raised with what view that order was drawn; whether it was with an intention to defraud the Bank of New South Wales, or Mr. Icely; the prisoner might raise the point hereafter, when he would be brought up for judgment.  With respect to the evidence on the case, if the Jury should find the prisoner guilty of either forging, or uttering the note, knowing it to be forged, they might return a verdict generally, or in might be a doubt raised with what view that order was drawn; whether it was with an intention to defraud the Bank of New South Wales, or Mr. Icely; the prisoner might raise the point hereafter, when he would be brought up for judgment.  With respect to the evidence on the case, if the Jury should find the prisoner guilty of either forging, or uttering the note, knowing it to be forged, they might return a verdict generally, or in either case, according to the present indictment it was a capital felony. - Verdict, Guilty - The prisoner was remanded.[2 ]

 

Notes

[1 ] The trial was reported by the Sydney Gazette on 5 November 1826, under the name of Alfred Bryer.  The Gazette stated that the trial judge was Stephen J.

[2 ] Judgment of death was recorded against Bryan: Sydney Gazette, 30 December 1826. Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

 

Published by the Division of Law, Macquarie University