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

R. v. Kelly [1834] NSWSupC 54

forgery, intent

Supreme Court of New South Wales

Forbes C.J., 8 May 1834

Source: Sydney Herald, 12 May 1834[1 ]

THE CONVICT SYSTEM.

Thursday. - Before His Honor the Chief Justice, and a Civil Jury.

James Kelly was indicted for forging an order for the delivery of a chest of tea, with intent to defraud Mathew Dysett Hunter; a second count charged him with uttering the same knowing it to be forged; the order purporting to have been drawn by H. McArthur, Esq., of Parramatta, ran as follows:- ``Be pleased to deliver to bearer a chest of your cheapest tea, which place to my account, H. McArthur, Vineyard Cottage, Parramatta."

A witness named Cuffe, an accomplice in the transaction, but who has since been appointed to the situation of Constable by Colonel Wilson, deposed that he was in the house of a person named Reynolds, and saw the prisoner, who was writing something which Reynolds dictated, and which, from what was passing at the time, witness understood to be a false order upon Mr. Hunter, for a chest of tea, which, if obtained, was to be sold, and the proceeds divided between Reynolds, a young man named Daley, the prisoner, and himself; the order was given to Daley and witness, at the request of the prisoner, and Reynold's accompanied him as far as the gateway to Mr. Hunter's stores, as he did not know the place; the prisoner followed at some distance, and waited about one hundred yards from the stores, to see the result of the presentation of the order, which was discovered to be a forgery, and the messenger sent to the watch-house, in custody of a constable; on seeing this the prisoner went away; three orders of a similar nature, had been disposed of before with success, the third of which had been presented by witness, who had received a share of the profits arising from these nefarious transactions; witness admitted on his cross-examination that he had disclosed the particulars of the transaction to Colonel Wilson, in order to remove the liability to penal consequences from his own shoulders, on the detection of the transaction; the man Reynolds had absconded, and had not been heard of; Reynolds and the prisoner had been old acquaintances.

Matthew Dysett Hunter deposed that two orders of a similar fabrication had been presented previously to the detention of the one now produced; having some doubt as to the validity of the second order, he had written to Mr. McArthur, and had discovered it to be a forgery; when the messenger came with the third order, he gave him into custody.

H. McArthur, Esqr., deposed that the name of his residence is Vineyard Cottage, but he had never made any order on Mr. Hunter for the delivery of tea; the forged signature differed so widely from his signature, that there was not the slightest resemblance, indeed in his opinion it could scarcely be called a forgery.

For the defence a witness from the gaol, under sentence for twelve months, to an iron-gang, for absconding and committing a robbery, named McFarlane, an assigned servant to A. B. Spark, Esq., was examined, who deposed that he was in the house of Reynolds on the day on which Cuffe said the prisoner wrote the order; did not see any order written, but the witness Cuffe brought an order, which he asked the prisoner to take somewhere; the prisoner refused to take it, and asked him why he did not take it himself; Cuffe said ``because he had been before, and would be known," finding that the prisoner would not take it, Cuffe offered it to witness, but the prisoner advised him not to have any thing to do with it; the order was then given to a young man named Daley, who went away with Cuffe; witness and the prisoner then left the house, and proceeded into the town.

B. Spark, Esq., to whom the last witness was an assigned servant, deposed that he was one of the worst characters he ever had in his employ, and would certainly not believe him on his oath.

His Honor[2 ] in proceeding to recapitulate the evidence, stated with reference to an observation made by Mr. McArthur respecting the execution of the forgery, that the offence lay more with intent to defraud, by means of a document of this nature, than in the execution thereof, where the evidence proved that the document had been used for the purpose of imposing it on a party as genuine, for the purposes of  fraud, the offence of forgery is complete, how badly soever executed; His Honor quoted in reference to this subject, the authority of Mr. Justice Buller and Chief Baron Eyre, having summed up the evidence, he put the case to the Jury, making some suitable observations on the nature of the evidence of the accomplice Cuffe.  The Jury retired for a short time, and returned a verdict of Guilty against the prisoner; also recommending that the witness Cuffe should be disqualified for holding any public appointment in this Colony.

 

Notes

[1 ] See also Sydney Gazette, 10 May 1834.

[2 ] The Sydney Gazette, 10 May 1834, said that the Chief Justice declared that it was ``legally competent in a jury to convict on the unsupported testimony of an approver, if they believed his evidence."

Published by the Division of Law, Macquarie University