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

R. v. Brier [1829] NSWSupC 29

forgery, mens rea

Supreme Court of New South Wales

Forbes C.J., 21 May 1829

Source: Australian, 26 May 1829

This morning Mr. Chief Justice Forbes having taken his seat in the Court Room nearest the Church, the Court was formally opened.

Alfred Brier was indicted for having drawn a checque for 62l. 5s. 6d. on the Bank of New South Wales, purporting to be signed by Thomas Icely, with intent to defraud.

Mr. John Black, Cashier in the Bank of New South Wales stated, that on the 2d instant the prisoner presented a checque as mentioned in the indictment.  Mr. B. being acquainted with Mr. Icely's hand-writing, owing to that gentleman having formerly kept an account with the Bank, at once detected the checque to be forged, of which he became further convinced on comparing with that the circumstance of Mr. Icely not having lately kept any cash account with the Bank.  Mr. Black upon this thought it proper to send for Mr. Jones, one of the Directors, and next for the gentleman whose name appeared to the fictitious checque.

Mr. Icely denied, that the writing was his; he had not given the prisoner liberty to draw for him, or to use his name in any money transaction.  The friends of the unfortunate young man Mr. I. stated to be highly respectable in England, and that 200l. had been put into Mr. I.'s hands for the use of the prisoner, to be given to him as he, Mr. I. thought proper.  He had given prisoner all but 62l. 5s. 6d the identical sum drawn for by the prisoner; lately prisoner had told him a farther remittance had arrived intended for himself by Captain Lusk, of the Lang, and he wished Mr. I to give him the balance remaining of the 200l viz. 62l. 5s. 6d.  Mr. I. refused to do so until he had inquired of Captain Lusk, which he did, and found the statement to be untrue; he then refused to give prisoner the balance.

Mr. Chief Justice Forbes said, he considered Mr. Icely had acted perfectly right.

The checque and signature were deposed to be in the hand-writing of the prisoner by a person who had been a clerk in the same office with him in Sydney, and who in consequence became well acquainted with his hand-writing.

Prisoner stated in defence, that Mr. Icely had possessed large sums of money belonging to him; that he had been much embarrassed lately for want of money, and had applied repeatedly to Mr. I. but without effect.  He furthermore added, that if the checque was to be considered a forgery, he conceived he was justified in acting as he did, not having done so with any intention to defraud, but merely to get the money due to him by Mr. Icely, being much in need of it.

The learned Chief Justice, in summing up, expressed his regret in feeling and forcible terms, to observe a young man respectably connected as the prisoner was said to be, placed in his degrading situation.  The only circumstance that could justify such an offence as that deposed to, would be that he had acted under an aberration of intellect; but there had been nothing adduced, no proof to bear out such a supposition.  Another circumstance certainly there was, which if true would militate in favour of the prisoner, and that was, whether under the supposition of Mr. Icely's owing him the sum embodied in the checque, the prisoner had drawn the checque solely to get the amount which he considered due to him, and without any intention to defraud Mr. Icely.  Upon this the case went to the Jury, who returned the prisoner -- Guilty.  Remanded.

Published by the Division of Law, Macquarie University