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

R v Moore and Reilly [1826] NSWSupC 60

highway robbery - Parramatta - promissory notes - Spanish dollars - currency - forgery

Supreme Court of New South Wales

Forbes C.J.,[1 ] 11 September 1826

Source: Sydney Gazette, 13 September 1826

 

John Moore and John Reilly were indicted for a highway robbery, in forcibly taking five promissory notes for the payment of twenty Spanish dollars each, from the person of James Core, at Parramatta, on the 8th of July last.  The information contained two other counts, describing the property as 100 dollars, value £25, and also as five pieces of paper, value 5d.

James Core deposed, that on the evening of the 8th of July last, after dark, he went in company with his wife, his brother, and two other persons, into a public-house, kept by one Bates, in Parramatta, where they had something to drink; the prisoners and some other persons were in the next room; when witness was leaving the house with his party, the prisoners and some other person standing at the door, and Reilly began to jeer, saying, "there go the Cores, they are sharpers, take care of them;" the prisoner, Moore, then followed witness a short distance from the house and knocked him down; some person called out for Reilly, who is a constable, to come and take Moore away, but when he came up, he also fell on witness, and they both held him down, and witness distinctly felt the hand of one of them in his pocket, taking his money away.

Cross-examined. --- Witness lost five twenty-dollar notes; did not go to the chief constable and offer him some silver, stating that was the remainder of the money he had lost; was examined before the Police, at Parramatta; some of the Magistrates there said that they did not believe he had the money in his possession; witness did not bring any one forward there to prove how he got that money; has no witnesses in Court to-day to speak to that fact.

George Core, brother to the last witness, corroborated the testimony given by him, and stated, that when he called out to the prisoner Reilly to take Moore off his brother, when he was down, Reilly replied "I am doing my best, and I can't do any more."

Other witnesses were about to be called, when His Honor the Chief Justice, observed to the Attorney General,[2 ]that he was of opinion, the information against the prisoners could not be sustained.  There was no proof of any dollars, properly so speaking, having been lost, and it had been already decided by the Court, that a robbery could not be committed on promissory notes, which were not for the payment of money, which Spanish dollars were not held to be in Law.  By the old common Law, promissory notes of any description could not be the subject of a robbery, but a statute had been enacted in the reign Geo. 2. protecting that species of property, but expressly setting forth promissory notes for the payment of money, under which denomination, as he had already observed, Spanish dollars were held not to be.  His Honor regretted that he should be bound by a superannuated decision in any superannuated law book, and would not fail to represent such an anomaly to the Legislature; but, while such a law existed the Court must, of necessity, be guided by it, and the prisoners were entitled to their acquittal. --- Not Guilty.

Previous to their discharge, His Honor admonished the prisoners, that though they had been acquitted on a mere technical objection, still, if they knew any thing of the notes, their wisest career would be to give them up, as there were other ways of coming at them.

 

 

Source: Australian, 4 November 1826

 

We have repeatedly designed, and as repeatedly forgotten to make some inquiries, or to give a hint which may lead to inquiries about one Mary Weston.  This woman was charged with stealing six, one hundred dollar notes, (or six bits of paper, as they were denominated in the Information); and committed for trial at the Sessions.  She was tried in the month of June last, convicted, and sentenced to transportation for seven years.  About two months after this occurrence, a man of the name of Riley was tried in the Supreme Court, before the Chief Justice, on a similar charge.   The Court on this occasion, held that there could not be a conviction, as the stealing of promissory notes for a sterling consideration was a statutable offence, and the statute creating that offence, did not include notes for a dollar consideration.  The count for bits of paper was insufficient, and accordingly, under the direction of the Court the prisoner was acquitted.  Now, one or other of these decisions must be illegal.  Either Riley escaped wrongfully, or Mary Weston was convicted wrongfully.  Here are two Courts trying the same offence, and arriving at a different conclusion.  One prisoner is acquitted, the other is punished, at least, we presume, that the other is punished, for nothing has been heard of a remission of sentence on account of error; and as we cannot for a moment hesitate to say which of the decisions of the two Courts is a legal decision; that sentence ought to be remitted, in order not only to preserve the uniformity which is necessary in our Courts, in order that it may be seen that we have not two readings of the law in use; but also to prevent a British subject undergoing an illegal punishment.

By bringing this case into notice, we have no desire to cast a reflection upon the legal skill of the JUDGE who presided at the Quarter Sessions.  Lawyers, the best of them, will err at times.  Still we are bound, in justice to the Magistrates, to say that that [sic] had an ordinary Justice of the Peace occupied the Chair at the time, he could but have erred.  It will be as well, however, if, for the sake of an equal distribution of the law, the cases of the two prisoners be assimilated, as far as they can; that is, if the prisoners be placed on equal footing, seeing that the crimes of which they were accused, were attended with the same circumstances, and that if one were guilty in contemplation of law, the other also must be guilty - or if one be innocent, the other also cannot be punished without injustice being committed.[3 ]

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

[2 ] Saxe Bannister.

[3 ] The Sydney Gazette commented on this issue on 8 November 1826, arguing that Forbes C.J. was right in law, but that the Chairman of the Quarter Sessions was right in equity.

The same applied in cases of forgery. On 5 February 1827, Cornelius Hughes was found guilty of forging and uttering an order payable in 180 Spanish dollars.  This led to a motion in arrest of judgment because the order was for dollars.  (Source: Australian, 7 February 1827.)  The defendant was acquitted in R. v. Madden, January 1826, on the same ground.

On the history of currency in New South Wales, see S.J. Butlin, The Foundations of the Australian Monetary System 1788-1851, Sydney University Press, Sydney, 1953, reprinted 1968; and on the legal complexities concerning promissory notes and other currencies in the early years of the colony, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 131-145.

Published by the Division of Law, Macquarie University