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

R. v. Redfern and Wells [1827] NSWSupC 47

forgery - convict evidence - convict indents

Supreme Court of New South Wales

Forbes C.J., 3 August 1827

Source: Sydney Gazette, 6 August 1827

 

Thomas Redfern, and William Wells were placed at the bar on an information charging the prisoner Redfern, with having forged a certain bill of exchange, on the Lords Commissioners of His Majesty's Treasury, for the sum of £350 sterling, with intent to defraud our Sovereign Lord the King, and also with intent to defraud W. Wemyss, Esq.  D. A. C. G. of New South Wales.  The information contained four counts, laying the instrument variously as a Bill of Exchange, and a warrant or order for the payment of money.  The prisoner Wells, was indicted as an accessary before the fact, in counselling, aiding, assisting, and abetting the prisoner Redfern, in the commission of the said felony.[1 ]

The Acting ATTORNEY GENERAL (W. H. Moore, Esq.) stated the case, and called the first witness, William Mattingly.

This witness being placed in the box, Mr. ROWE, as Counsel for the prisoners, stated, that before he was sworn to give evidence, he found it necessary to put a few questions to him, on his voir dire.

Q. - Are you the William Mattingly who arrived in this colony, by the ship John Barry, a prisoner for life?

A. - I am.

Q. - His M[a]jesty, on condition of your being transported for life, remitted the sentence of death passed on you in England?

A. - He did.

Q. - That sentence of transportation has not been remitted; you have not received the King's pardon for the offence of which you were then convicted?

A. - No.

Q. - You have not received His Excellency the Governor's pardon?

A. - No, Sir.

Q. - Are you, further, the William Mattingly who was convicted before the Magistrates, at the general Sessions of the peace, in this Colony, on the 1st September, 1826?

A. - Yes.

Q. - On what charge of were you then before the Mag[i]strates?

A. - On a charge of defrauding Dr. Bowman, my master.

Q. - Were you found guilty, or acquitted of that charge?

A. - I was sentenced for three years to a penal settlement.

Q. - Since that period have you been in confinement, in order to be sent to a penal Sett[l]ement?

A. - I have been in confinement ever since.

Mr. ROWE, notwithstanding the conflicting authorities which he admitted existed on the subject, submitted that the witness was incompetent to give evidence, on his own admission; but if the Court thought it necessary to produce the record of his conviction in the colony, he was p[r]e[p]ared with it, as well as with such evidence as was to be had of the fact of his being a capital convict.

The CHIEF JUSTICE was not prepared to admit that the witness' own admission was sufficient; because it was not the best evidence that could be had.  If Mr. ROWE, then, intended to raise the point, HIS HONOR would say produce the record.  Upon referring, however, to the 12th § of the Act of the 4th Geo. IV. it was declared "that no objection shall be allowed to the competency of witnesses of sufficient age and discretion, except for interest in the event of the trial' Under that clause, therefore HIS HONOR was of opinion that Mattingly was a competent witness.  He was aware, however, that an argument might be raised on the question; but he would then say, proceed with the evidence, and he would save the point, and give the prisoners any benefit which might arise from it, at an after stage of the proceedings.

Mr. W. Love, the acting principal clerk at the Police Office, produced and proved the record of the conviction of William Mattingly, before the Bench of Magistrates, in General Sessions, in September last, when he was sentenced for three years to a penal settlement for defrauding his master, Dr. Bowman, and attempting to escape from the Colony.

Mr. Thomas Ryan, a clerk in the office of the Colonial S[e]cretary, produced the indents of the ship John Barry, in which Mattingly arrived in the colony, whereby it appeared that he was sentenced to transportation for life in England.[2 ]

William Mattingly was then sworn and examined by the Acting ATTORNEY GENERAL.  Witness has been in the Colony for eight years, during which time, up to July, 1826, he was overseer at the General Hospital; knows the prisoner Redfern for some months, and Wells f[o]r four or five years past; Wells, as witness believes, is a jeweller by trade, but kept a public house; Redfern was a patient in the General Hospital, when witness first knew him; on Saturday the 1st of July, 1826, witness, and the prisoner Wells, were together on the Parramatta road, when Wells asked him for the loan of 100 dollars, witness replied that he had not 100 dollars, that he had but 50, upon which Wells said, if he would lend him 50 dollars he would give witness a set of blank Treasury Bills, which he could get filled up for £150, which would be a gift to him, as he was about going to England; Wells said they could not be proved from genuine, and were of the same kind as Child and Lawry had been passing at the Derwent; witness accordingly gave Wells a fifty dollar note, and two silver dollars, and on the Tuesday following called, by appointment, at his house for the bills; Wells took witness up stairs to his bed room, and opened a drawer, out of which he took a roll of bills similar to those which he afterwards gave him, and selecting three, was about to hand them to witness, when he observed that they were of no use at present as they had not the Commissariat stamp; Wells then went to a swinging mirror, that stood on a table in the same room, and taking out the board at the back of the glass, produced a plate, which appeared to be that from which the bills were struck, and a small stamp, saying at the same time, to witness, "what do you think of that for a plant; any one might search the house, and have it in his hand, and not know it;" he then put the bills and the stamp in his pocket, desiring witness to attend to his shop for about two hours, by which time he would get the stamp put on the bills, and give them to him; witness remained in the house until Wells returned, in about two hours after, when he took three bills from the roll, and gave them to witness; the bills were then blank, and had the Commissariat stamp; witness then left Wells' house, and returned direct to the hospital, and sent for the prisoner, Redfern, who was then a patient in the hospital, and had formerly been a clerk in the Commissariat, to his room, and asked him to fill up the blanks, which he did, making the sum for which they were drawn, £350 sterling; witness then went to the clerk's office for a letter signed by Mr. Wemyss, in order that Redfern might imitate the signature, which he procured, and from which Redfern copied the name, W. Wemyss, D. A. C. G. at the foot of the bill; witness gave Redfern three pierced dollars, and one Spanish dollar, as a remuneration; on the same evening, witness absconded from the hospital, and was concealed for the last five weeks before he went on board the brig Ann, in the house of the prisoner Wells, who promised to get him out of the country.  Wells told witness that he had agreed with some person on board to set him on shore at Timor, and took him to the ship about nine o'clock in the evening; witness concealed the bills on board the Ann, between the joint and the deck-board, in the after hatchway; witness was apprehended on the following morning after Wells had left him on board, and the vessel afterwards sailed with the bills in the place where they had been deposited; when he gave information witness described the situation the bills were on board; the bills now before the Court are the same which were given him by Wells, and filled up by Redfern, as witness has already stated, witness wrote the indorsement "J. McArthur" himself.

Cross-examined by Mr. Rowe - There was no other acquaintance between witness and Redfern, further than his being a patient in the hospital; witness was in custody in the gaol, under sentence to a penal settlement, where he sent for Captain Rossi, and gave information of this transaction; gave information against both the prisoners; the bills were not then in the possession of the Police, not until the ship returned, Wills was not present when the bills were filled up; did not make any charge against the prisoners until after he had beeu [sic] sentenced to transportation nor until he was about to be sent on board the hulk, in order to his being drafted to a penal settlement.

Mr. John Grimes, Commander of the brig Ann, stated that his vessel sailed from Sydney on the 13th of September, 1826; on the morning previous to the brig's sailing, a man, whom witness believes to be the last witness, Mattingly, was found concealed in the after hold, one of whom found some papers, which he handed to witness, who was about to throw them overboard, when he observed the name J. McArthur on the back, upon which he opened the roll, and found they were the bills now before the court; did not see where they were taken from witness; returned to Sydney on the 1st of June last, after being about nine months absent, and delivered over the bills to Mr. Wemyss.

Joseph Higginson, an apprentice on board the brig Ann, stated, that he was on board that vessel on her last voyoge [sic] to Timor; witness and some of the sailors were in the after-hold turning some corn, three or four days after the vessel sailed from Sydney, and having taken up a stick to sweep down some cock-roaches observed some papers rolled up between the beam and the deck, which he took down and handed to one of the men, who gave them to the Captain in witness' presence; remembers a man having been found concealed in the vessel previous to her sailing, but does not know his name.

Mr. John Gaggin, a clerk in the Commissariat, stated that he knows the prisoner Redfern; he was under witness' orders, for some time in the Commissariat, in Sydney; would know his hand-writing, as also the hand-writing of Mr. Wemyss.  The bill was then shown to the witness, who stated his belief that the body of the bill, was in the hand-writing of the prisoner Redfern, and swore positively that the signature was not in the hand-writing of Mr. Wemyss.

W. H. Moore, Esq. stated, that he had, in his official capacity, received some letters from the witness, Mattingly, relating to the present case, and that he believed the indorsement, J. McArthur, on the bills, to be in Mattingly's hand-writing.

The case for the prosecution closed here.

Mr. Rowe took some objections to the information, which were overruled by the Court.

Several witnesses were called by the prisoners; counsel, who stated that they would not believe Mattingly on his oath.

The CHIEF JUSTICE charged the Jury, observing that the whole case against the prisoners rested upon the evidence of Mattingly, who, if the Jury believed his testimony, was, in law, a competent witness.  With respect to the objections to the information which had been taken by the prisoners' counsel, His Honor was fully of opinion that the instrument was perfect, as regarded them; and supposing the Jury believed Mattingly? and that such acts, with respect to it, were done by the prisoners, as he stated were done, it was sufficient to sustain a prosecution against them.  The whole question was, did the Jury believe the testimony of Mattingly.  He appeared before the Court as an accomplice, independent of which, he admitted that he came to this Colony for a capital crime, and that since he had been here, he had been guilty of offences sufficient to affect his testimony in England.  The whole of this transaction seemed to be a chain of misdeeds; but he was, notwithstanding, legally competent as a witness; how far he was morally competent, or the degree of credit to which, under such circumstances, his testimony was entitled, it was for the Jury alone to decide.

The Jury retired for a few minutes, and returned a verdict of Not Guilty.  The prisoners were discharged from the dock, by proclamation.

 

Notes

[1 ] See also Monitor, 6 August 1827.

[2 ] Indents were the records of conviction sent from England or Ireland with the convict.  They often did not state the date from which the terms of transportation were to be computed, making it impossible to know when the term expired, among other defects.  See Darling to Huskisson, 5 April 1828, Historical Records of Australia, Series 1, Vol. 14, pp 116-118.

Published by the Division of Law, Macquarie University