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

R. v. Troy and Bradley (1828) Sel Cas (Dowling) 636; [1828] NSWSupC 83

forgery, arrest of judgment, criminal procedure, trial by jury, capital punishment

Supreme Court of New South Wales

Forbes C.J., 22 September 1828

Source: Australian, 26 September 1828

Patrick Troy and Joseph Bradley were severally capitally indicted for forging and counterfeiting a certain instrument purporting to be a deed of gift from one Patrick McKeogh deceased, to said prisoner Patrick Troy, of a certain house and premises, situate No.52, Kent-street, with intent to defraud.[1 ]

The information contained no fewer than twelve counts  laying the offence to have been committed with intent to defraud various persons therein described.

The Attorney-General with Mr. Rowe conducted the case for the prosecution  and Mr. Sydney Stephen that for the defence.

The prisoners having pleaded not guilty, and Mr. Attorney-General having opened the case, witnesses were called in support of the prosecution, but none for the defence; and the learned Chief Justice having briefly addressed the Jury; the latter, after but a few minutes consultation in the Jury-room, returned upon the information, a verdict of guilty.  Remanded for sentence.

 

Forbes C.J., Stephen and Dowling JJ, 30 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462[2 ]

[p. 34]

[It is no ground for arresting the judgment in the case of persons convicted of felony that the verdict of the Jury has not been delivered by the mouth of the senior officer under 4 G 4 c. 96 s. 4]

[p. 33]

Tuesday 30th Sept 1828

Forbes CJ

PresentStephen J

Dowling J

Rex v Patrick Troy

Joseph Bradley

These prisoners were convicted on 2 G. 2. C. 25. s. 1 of forging a deed of Gift of certain tenements held of the Crown belonging to one Patrick McKew, purporting to convey the same to the prisoner Troy his heirs &c after the death of McKew.  On motion by Attorney General to bring the prisoners up for Judgment.

Stephen moved to stay the Judgment on [p. 34] these grounds.

First, that there had been a mistrial in as much as the verdict of the Jury had not been delivered by the mouth of the senior officer pursuant to the 4 G. 4. C. 96. s. 4.[3 ]  This objection was supported by the affidavit of Stephen as to his own belief of the fact, second, that there was no sufficient averment in the indictment of an intent to defraud any particular person by the alleged forgery, and

Third, that the deed of gift charged to be forged, being of Tenements, and not signed by three witnesses pursuant to the statute of frauds it was not such a deed of which forgery could be committed.

After hearing Baxter AG. and Rowe against the objections.  The Court gave judgment.

Forbes CJ.  I am of opinion that the first [p. 35] objection cannot avail the prisoners it is mere matter of form by whom the verdict of Jury is delivered as long as the Jurors all agree in the Verdict.  The 4th Section is merely directory in order to prevent confusion in the order of proceedings.  There is no substantial injustice done to the prisoner to [sic]   All that the Court can look to is the finding of the whole Jury.  At the utmost this is a mere irregularity and neither be a ground of vacating the the [sic] verdict or arresting the judgment.  Secondly, the indictment contained 12 Counts, the last averring the intent of the prisoners to be "to defraud the persons who would by law be entitled" to the property," and that is sufficient to support the indictment.  Thirdly, the Indictment charged the prisoners with forging a deed of gift in hac verba setting out the deed, which purported to be a deed of gift conveying the property in question to the prisoner Troy, "his heirs executors and administrators and assigns to [p. 36] have and to hold the said house in as full and beneficial a manner as could be held or enjoyed by the said Patrick McKew,"   The instrument does not purport to be a conveyance in fee.  "It is I give and bequeath", a house, and the donor recovers to himself a rent of 10s a week so long as he shall live, and after his decease he gives the house to the donee; but it appeared in evidence that the freehold was in the Crown, and therefore the Instrument being signed by two witnesses that is a sufficient conveyance of a freehold interest and according to Wallis's case AD. 1800. 2. East. P. C. it was matter of evidence for the Jury whether the deed purported to convey a freehold interest whether the supposed donor had a freehold Interest to give.  I agree that the alleged forgery must be of an instrument of that description, and therefore this objection cannot be supported.

[p. 37] Stephen J.  I am of the same opinion as to the first objection, it is wholly immaterial which of the Jurors deliver the Verdict, so long as it is the unanimous verdict of the whole Jury.

Dowling J.  Assuming that the first objection has any weight in it, I should require more satisfactory proof of the fact that the verdict had not been delivered by the mouth of the senior officer than the mere belief of the fact, stated in the affidavit of the prisoners counsel.  But the objection does not go to affect the finding of the Jury.  It is a mere irregularity, and not even a mistrial, for it is still the verdict of the Jury.  There is no vital defect in the Justice of the case, and the Court must not stultify itself by giving weight to an obection [sic] quite beside the merits of the case.  Evenen [sic] if it were a mistrial, there could only be a new trial and no new trials are granted in cases of [p. 38] Felony   the Clause 4. of the N.S.W. act is only directory and in substance it is unimportant by whom the verdict is given.  How is the Court to know the Senior from the Junior Officer?  it might happen that an officer whose commission was of a later date by one day, had delivered the verdict but would that be an objection?  clearly not.  The second objection is with foundation there being one count in the information to meet it.  Then as to the third, the deed only purported to convey a chattel interest, and as the supposed grantor had no freehold in the premises, I think the instrument is such of which forgery could be predicated.  But I am not prepared to hold that a counterfeited deed not complete in all its parts, may not be the subject of an indictment for forgery see Rex v Lyon Rus &c Ry. C.C.R. 255.

Forbes CJ then passed sentence of death on the prisoners.

 

Execution, 21 October 1828

Source: Australian, 21 October 1828

EXECUTION.

Monday morning witnessed the awful and disgraceful exit of nine unhappy culprits from this world by the hands of the common hangman, from the execution drop in rear of the body of the gaol.  Frequent as these spectacles are and have been after every Criminal Assize, the circumstance of so considerable a number, drew together a more considerable crowd than perhaps had ever before attended as spectators on the like occasion in Sydney.  The respective names and offences of the nine miserable culprits were as follows, viz.: John Quigley and Samuel Clarke, burglary; John Walsh, shooting at Mr. George Barber, with intent to kill, and robbing him; Patrick Kegney, Joseph Spicer, and James Tomlins, stealing in a dwelling house, and putting the inmates in bodily fear; James Henery, cattle stealing; Patrick Troy and Joseph Bradley, forgery.  The oldest among them did not exceed thirty years, there was scarcely one amongst the culprit group but had ties of kindred or association to be severed from.  The culprit Troy was not only a husband but a father, the father of five children, and had been for some time a house-holder in Sydney.  The anguish attendant on the last parting meeting between this wretched man and his wife and children, is said to be indescribable.  Troy expressed a wish that neither his wife, children, or friends' should be witnesses of his disgraceful death.  Bradley was a man of good education; he once resided at Parramatta; where, for several years, he was Clerk to the Bench of Magistrates and maintained a fair reputation.  Intemperance, however, appears to have got the better of his other qualities.  What he had acquired by honest industry, he frequently dissipated extravagantly, and of late, it was remarked, that his sole dependence for support rested upon the small and precarious profits he obtained by writing petitions, memorials, and the like, for which, by all accounts, he was well adapted[.]  His race, however, was run.  On his trial he spoke well; his defence was delivered in an audible and firm tone; he protested his entire innocence of the crime for which he had been tried and convicted.  Troy and Bradley, from the moment of conviction, never dreamt of a respite   they expected nothing short of the rope.

Some others of the unhappy criminals were a little more sanguine, and hoped that mercy would be extended to them.  This was the case of Henery who was sentenced to die for stealing a heifer.[4 ]  The unhappy criminal it is said fondly hoped that the dreadful sentence would be averted.  This impression on his mind seems to have been founded upon the circumstance, that for five years past, no criminal had been executed for cattle stealing, with the exception of Curtis, whose case was marked by circumstances of an aggravated character.  But as the hour of execution drew nigh, those who had indulged in hopes of mercy, gradually declined into resignation.  The exhortations of their clergymen were not lost upon them.  The nine culprits appeared in the execution yard, at ten minutes past nine o'clock.  Six of the culprits were catholics, and were attended by the Rev. Mr. Power.  the Rev. Dr. Lang attended the others.  Having prayed and communed with their clergymen for some minutes after entering the execution-yard, the nine culprits were placed in a line upon the drop board.  Bradley was the only one who made an effort to address the throng beneath him.  He spoke of his former respectable course of life, contrasting it with the disgraceful situation in which, by yielding to the evil suggestions of temptation, he was then placed, and commended his fate as an example to other disposed in any way to err from the paths of integrity, the offence was forgery.  On a concerted signal from the Sheriff, the hangman withdrew the spring sustaining the fatal drop board - the culprits fell to the length of their ropes, and after some moments struggling ceased to have any concern with the affairs of this world.  After being suspended the usual time the nine bodies were lowered and disposed to the coffins laying beneath, Bradley's being conveyed away on a bier by his friends.

Notes

[1 ] This trial was also reported by the Sydney Gazette, 24 September 1828.  For the civil action leading to this case, see Burke v. Troy, 1828.  See comments, Sydney Gazette, 2 July 1828.

[2 ] See also Australian, 1 October 1828; Sydney Gazette, 1 October 1828.

[3 ] Section 4 of (1823) 4 Geo. 4 c. 96 said that the military and naval officers who comprise the jury "shall return their verdict in open court, by the mouth of the senior officer serving on such jury".  For a case of conflict between the officers as to who was the senior officer, see R. v. Reilley, 1828.

[4 ] On 1 October 1828, the Australian reporting that Forbes C.J. sentenced James Henery to death for stealing a heifer, reported: "This offence, observed His Honor, is one that has encreased to such an extent, and is such a prolific source of crime and perjury, that the Court has come to the resolution to visit offenders who may be convicted thereof, with the severest punishment known to the law."

Published by the Division of Law, Macquarie University