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

R. v. Emerson [1827] NSWSupC 28

forgery, arrest of judgment, reception of English law

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 14 May 1827

Source: Sydney Gazette, 16 May 1827

John Henry Emerson, for forgery, with intent to defraud the Australian Agricultural Company.

In this case, Mr. ROWE rose to move an arrest of judgment, on various grounds.  It was observed Mr. R. the desire of the prisoner, and had not been objected to by the Attorney General, to request the postponement of the sentence of the Court on him, for very cogent reasons, which would very shortly appear, but as it was his (Mr. Rowe's) intention to move an arrest of judgment in the case, and as both their HONORS were on the Bench, he thought it as well to offer such arguments as occurred to him in support of his motion for an arrest of judgment, when, if the Court thought fit to accede to the desire of the prisoner, the final decision might be deferred to a future day.  The prisoner at the bar was charged with the offence of forgery under the statute, and the first objection he should raise for the consideration of their Honors, was as to the jurisdiction of the Court.  He was aware that, in mooting such a question, he was treading on tender ground; but he was, notwithstanding, bound to say, that looking at the Acts of Parliament as regarded the crime of forgery, in the Mother Country, they did not appear to him to be applicable here.  It was only by a late Act of Parliament that the statutes relating to forgery were made to extend to every part of Great Britain; and, as the statutes expressly extend only to Great Britain, the question was, could the Court, by construction, render them applicable here, merely as forming a part of His Majesty's dominions.  Supposing that a forgery had been committed here, and that the party returned to England, and there uttered it, could the Court of King's Bench there take cognizance of a forgery committed out of Great Britain, though in His Majesty's dominions?  He thought not.  It was singular also, that, in looking into all the authorities, there was not one case to be found where in it had been decided whether the Acts respecting forgery extend beyond the Mother Country, except where they are expressly provided to do so by a particular statute.  Statutes were enacted to extend the laws relating to forgery to the South Sea Company, to the Eas[t] India Company; and why, he would ask, were those statutes enacted, if the prior Act of Parliament, as regarding forgery, would have been sufficient to have taken cognizance of the crime any where in His Majesty's dominions?  Mr. Rowe continued at considerable length, to urge various other objections, particularly to the admissibility of Mr. M'Vitie's evidence, who had admitted, on his voir  dire, that he was an interested witness, inasmuch as he was subject to profit and loss by the event of the trial; also to the count charging the forgery to have been committed with intent to defraud Dr. Bowman, which he contended could not have been the case, as the check, purported to be drawn by Dr. Bowman, for, and on account of the Australian Agricultural Company, into which body (he being a member) Dr. Bowman in his individual capacity merged, and therefore could not have been chargeable in his personal capacity; particularly as it appeared that it was the Company which was debited by the Bank; also that, with respect to the count charging the intent to be to defraud the Australian Agricultural Company, there was no proof of their charter by which only they could be recognised as a Company; and if not incorporated, as he was bound to suppose they were not, in the absence of any proof of their charter, then the name of every individual composing the body denominated the Australian Agricultural Company, should have been set forth in the information; also, to the count laying the intent to be to defraud Mr. McVitie, and others his partners, as vague and insufficient, and several objections arising out of the Act of the local Legislature.  The Court deferred their decision to a future day, and the prisoner was remanded.[1 ]

Notes

[1 ] On 1 June 1827, John Emerson and Michael Coogan, convicted of a forgery on the Bank of Australia, were sentenced to death.  Coogan made specific arguments about his trial on the bank charge, which the court rejected.  According to the Monitor, 8 June 1827, "Neither the objections of Coogan made now, nor the previous objections by Mr. Rowe on begalf [sic] of Emmerson were of avail, and the Chief Justice proceeded, having recapitulated their cases, to pass sentence of death upon each of them."  That is, the court rejected Rowe's argument against the application of the forgery laws to New South Wales.   See also Australian, 6 June 1827; Sydney Gazette, 4 June 1827.

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).

Having sentenced them to death, Forbes C.J. sent his notes on the trials to the governor on 9 June 1827 (Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 102) for consideration of Crown mercy.  He made no recommendation as to whether the sentence should be carried out.

See also R. v. Hoyle, 1827.

Published by the Division of Law, Macquarie University