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

R. v. Pickering and Baxter (1829) NSW Sel Cas (Dowling) 205; [1829] NSWSupC 44

perjury - criminal procedure - indictments - children, criminal defendants

 

Supreme Court of New South Wales

Stephen and Dowling JJ, 16 June 1829

Source: Australian, 19 June 1829

Charles Pickering, jun. and Thomas Baxter, were jointly arraigned on an assignment of perjury, whilst giving evidence on a trial in the Supreme Court, Clarkson v. Pickering,[1 ] before his Honor Mr. Justice Forbes, on the 2d January last.

Mr. Sydney Stephen appeared as Counsel for the prosecution, and Mr. Rowe for the defence.

The Jury having been sworn, and the indictment read over, to which the prisoners pleaded not guilty,

Mr. Justice Stephen in limine observed, that the indictment was informal and nought, as not more than a single individual could be prosecuted for perjury under one indictment, but both prisoners in this case were included in one.

Mr. Rowe argued that the indictment alone could not be quashed, as the Jury were charged, and the prisoners had put themselves upon their country, that they were entitled to a verdict, and that verdict must be an acquittal, as the information was illegal, and the trial could not be gone into.  Had the illegality of the indictment been observed before the prisoners had pleaded, and the Jury charged, then indeed the indictment might have been quashed, and the defendants indicted separately; but now the Jury had been charged, the prisoners also had pleaded, and therefore were they entitled to a verdict, after which, of course, they could not be again indicted for the same alleged offence.

Mr. Stephen opposed arguments, and quoted law authorities on the other hand.

The learned Judge persisted in the opinion he had already expressed, which was acquiesced in by Mr. Justice Dowling, on reference to him; consequently the indictment was quashed, the Jury discharged, and the defendants were held on their former bail, to appear whenever fresh indictments should be prepared for trial.

 

Stephen J., 23 June 1829

Source: Australian, 26 June 1829

Charles Pickering, the younger, was treated with an assignment of perjury, on the ground of his having given evidence in a cause tried last term, Clarkson v. Charles Pickering, senior, wherein defendant stated he had been present in Feb. 1827, at his father's house, with a man named Baxter, at a settlement of accounts between Catherine Clarkson and Charles Pickering, the elder, when a balance of 3l. 7s. 6d. was declared owing to Mrs. Clarkson.  But it was sworn on the other hand, that defendant had not been in town in Feb. 1827, nor had any settlement of accounts, as the defendant averred, ever taken place between the parties already mentioned.

Pickering's Attorney objected to the matter being proceeded with, unless costs of the former trial were paid by the prosecutor, and quoted several cases to uphold his objection; which being invalidated by the learned Judge, defendant's Attorney applied for a copy of the indictment, which the Court granted; and trial of the case was deferred to a future day.

 

Trial, 3 July 1829

Source: Australian, 8 July 1829

Charles Pickering, jun. was indicted for perjury, in having given evidence in a case, Clarkson versus Pickering, tried in the Supreme Court on the 2nd day of January, 1829, by reason of which plaintiff lost the suit.  Pickering, jun. was sworn to have used the words "that he was present in the month of February 1827, when a settlement of accounts occurred between Mrs. Clarkson and Pickering the elder, and a trifling balance was left, owing to Mrs. Clarkson."

Mr. Solicitor Keith and Mr. Rowe appeared for the defence.

Mr. Sydney Stephen for the prosecution.

Several witnesses proved that Pickering, jun. was at Newcastle on the day he swore to have been present at the settlement of accounts in Sydney.  The witnesses for the prosecution underwent a severe cross-examination. --- Guilty.[2 ]

 

Forbes C.J., Stephen and Dowling JJ, 4 July 1829

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

[pp 215-216] [An indictment for Perjury assigned upon evidence given on the trial of a civil issue, described the trial as having taken place before the Chief Justice, and by the two assessors Held that the words "and by the two assessors" might be rejected as surplusage notwithstanding the 4 G 4. C. 96. s. 6 which says that the trial of civil issues shall be "by the Chief Judge and by the Assessors.]

[p. 215]Saturday 4th July 1829

Present Forbes CJ

Stephen J.

Dowling J

Rex v Pickering Junr

The prisoner had been convicted before Dowling J on the 3rd inst (Vide Vol 2. P. 11) of wilfull and corrupt perjury assigned upon evidence given on the trial of an action before Forbes CJ in which Catherine Clarkson was Plaintiff and Charles Pickering father of the prisoner was the defendant.

The prisoner now being brought up for, Rowe moved in arrest of Judgment that the Court before whom the alleged perjury was committed was not properly described in the Indictment stated that a certain issue (naming it) "Came on to be tried before the honorable Francis Forbes CJ. in the Supreme Court, of N.S.W. and was tried by G. Bunn [p. 216] and A B. Esqr assessors, in that behalf now by the Statute 4 G 4. C. 96. s. 6 the Trial of Civil issues shall be "by the Chief Judge & by two Assessors, being Magistrates" & where as in the indictment the cause in question is alleged to have been tried before the Chief Justice, by two assessors, The Statute makes the Judge, a juror or assessor as well as a Judge the Court in this case is properly constituted by the Judges and the assessors and not by the Judge alone.  Independently of this objection on the face of the record, there was a variance between the statement and the evidence because the record of the trial shewed that the cause had been tried in the particular manner set forth he was bound to prove it strictly.

Forbes CJ.  I am of opinion that there is nothing in this objection.  The allegation that the cause was tried by the Assessors was [p. 217] in my opinion not material, and consequently need not have been proved it was sufficient to have proved the statement, that the cause came on to be tried in due form of law before the Chief Justice the competent authority to administer the oath is the Judge and not the assessors the Court properly speaking is the Judge and not the Judge and assessors.  In England this would not be a good objection, supposing the trial took place before a Judge and Jury.  It would be sufficient to aver and prove that the oath was taken before the Judge who had sufficient and competent authority to administer the oath it appears to me that there is a sufficient constat to support a Judgment for perjury.

Stephen J.  I am of the same opinion.  The Judge is the Court and not the Judge and assessors.  I think that the averment that the cause was tried by the Assessors may be rejected as surplusage

Dowling J  With every disposition to give the Defendant [p. 218] the benefit of any objection fairly arising in his case, I am clearly of opinion that the objection now taken is untenable.

Since the passing of the statute 23 G 2. C. 11. s. 1 the nicety formerly required in setting forth the offence of perjury has been rendered unneccessary.  Formerly in consequence of the nicety required it was almost impossible in any case to obtain conviction.  By virtue of that statute it is now sufficient to set forth the substance of the offence charged upon the Defendant, and by what Court, or before whom the oath was taken, (averring such Court or person to have a competent authority to administer the same) together with the proper averment or averments to falsify the matter wherein the perjury is assigned &c  By the 7 G 4. C. 64. s. 20. after reciting "that the punishment of offenders may be less frequently [p. 219] intercepted in consequence of technical niceties," it is enacted "that no judgment upon any indictment &c for felony or misdemeanor [sic] &c shall be stayed or reversed for want of the averment of any matter unnecessary to be proved" &c.  The question is whether the offence, and the Court before whom it was committed is sufficiently described in this indictment.  The objection is that the cause was tried before the CJ by the Assessors.  The true test is whether there would be a good indictment if the averment "by the Assessors", were rejected as surplusage as being unnecessary to be proved.  I therefore think that the Court may proceed to pass Judgment.

The Defendant was sentenced to two years Transportation to a penal Settlement.

 

Notes

[1 ] Dowling J. included this case among his Selected Cases, but only for its interpretation of the Rules of the Supreme Court, which required that affidavits should be filed at the same time as notices of motion: Clarkson v. Pickering, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 144.

[2 ] Pickering, who was only 15, was ordered to be transported for two years, with a recommendation that he be kept apart from those who might confirm him in vice and that he be taught a useful trade: Sydney Gazette, 7 July 1829; Australian, 8 July 1829.

See also Australian, 27 November 1829, which recorded the following, "John Coghill, a child not exceeding nine years of age, was placed at the bar, and discharged from custody, the charge against him being, that he was in company with the man Quin at the time of the latter perpetrating a capital assault."

See also Wood v. Lee, 1829, on the civil liability of children.

Published by the Division of Law, Macquarie University