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

R. v. Stokes [1834] NSWSupC 95

perjury - autrefois acquit - criminal informations - sentencing discretion - pillory - police, perjury by - Regentville

Supreme Court of New South Wales

Burton J., 8 May 1834

Source: Australian, 13 May 1834[ 1]

John Stokes, a free constable belonging to Sir John Jamison, at Regentville, was indicted for wilful and corrupt perjury, in swearing falsely, wilfully, maliciously, and corruptly, that he apprehended one John Daley, a runaway prisoner of the crown, on the Brickfield Hill, and took from him a pistol, whereas in truth and in fact &c.

John Leary deposed that he was brought before the Court at Penrith on a Friday; he had been then four days absent from Regentville; he left Penrith on a Thursday, and was brought back on a Tuesday; prisoner said he would take him to Sydney and get a Captain to take him from the Country; this was at Sir John Jamison's on the Thursday; next day he absconded; that day he got to Parramatta; prisoner appointed to meet him at Sir Jamison's bridge; he said he would start from Mrs. Norcliff's after dark; we went together about dusk, and staid till night at the bridge; on Thursday night we slept under a bridge on our way to Parramatta; on Friday morning we arrived at Mrs. Norcliff's by daylight; a man named Michay had a pocket pistol, which prisoner bought for two shillings; he asked Michay for powder; on Friday night we slept at Mrs. Norcliff's; I was not handcuffed at all; we breakfasted together on Saturday, and got to Sydney in the evening; we stopped together at a public house on the Brickfield Hill; there was a Bunch of Grapes as the sign where we got tea, prisoner paid two shillings for it; he wished me to take a walk; he then called for pen and ink and wrote a note for £1, signed ---- Bells, in favour of himself; I waited for tea, and he went out to get the note cashed; he showed me the £1, but said nothing more about the Captain; he said he could not see the Captain, and would start in the morning for Parramatta; we met that night in the public house and slept in separate beds; we slept at Norcliff's together both nights; he went to Daley's for his bundle, and we got on the coach; he paid five shillings for the fare, and two shilling for the beds; we arrived at Norcliff's after ten, and we staid there all day; we drank nothing; we slept there all night together; he said I might as well go to Penrith with him as with any one else; I judged it was for the sake of getting the ten shillings reward; we breakfasted there and then left for Penrith; we met Adan, Taylor and a cart near Prospect and Mr. Francis; I was not handcuffed during the whole time; we went to Swansbury's for a drink; I did not know his name, but enquired it from others when I wanted my witnesses; when we got half a mile into the bush, he said he could serve me as he served this cap, throwing up mine and firing through it, if he had a mind to be a rogue; the ball passed through the cap and through a piece of paper that was in it; I don't know what he did so for; he said we had better go to Windsor, and when we got there he said that I had slipped the handcuffs & struck him and ran away, that he fired and blew the cap off my head; I slept in the watchhouse that night; I was taken to the Chief Constables, but it was not agreed between me and prisoner what to say; the next day I was handcuffed, but not before; he kept them on me until I got near Dr. Harris's house, on our way to Penrith; we stopped at Chapman's, and prisoner asked for tea, Chapman asked who I was, and prisoner said he was taking me home from Windsor Hospital; he again handcuffed me near Dr. Harris and Captain Kings farm; he did not say why, and I made no objection; we arrived at Penrith on Tuesday at dark; he gave me up to the gaoler, and said I was charged with robberies and having fire arms; I made no answer because I knew that was not the place; I should know the pistol again; I never had it again in my possession; (other matters of a disgusting nature were elicited during his examination, in chief, with which we cannot sully our pages).

Cross-examined. - I think I heard prisoner say before the Magistrates, that I had said, I found the pistol in the Government Domain; prisoner had another pistol with him belonging to Penrith; he said he had put the other pistol in his bundle; he carried the large pistol in his hand; on Friday I was brought before the Bench at Penrith; on that day I heard what Stokes swore and I said it was false.  I asked no questions because I wished to wait till Sir J. Jamison came; Major Druitt told me to put any questions; I did not know that I should be brought up again; I told this story the second day; I did not choose to do so on the first, I wanted to wait till my master Sir John Jamison arrived; prisoner held out no threats against me at any time.

Mrs. Norcliffe. - I know prisoner, he came to my house with the last witness; it was on a Sunday night before the Sessions; the first time they came was about three months ago; they came next on a Friday early in the morning before breakfast; the boy said he was free and that his father lived at Black Town; prisoner heard this but said nothing; they remained there that day; they went away and came again on a Sunday and remained all day; I thought the lad was free as he went in and out; they left on Monday between nine and ten; knew prisoner to be a constable, and he had pistols with him; can't say whether the boy was there on the Friday; never saw him with pistols.

John Shearman - I was at Mr. Mouten's the Talbot Inn, Brickfield Hill, in February last; cannot say whether there is a bunch of Grapes over the sign; dont [sic] know Daley; remember seeing Stokes and Leary there.  The boy gave the man some money; they slept on two sofas; they went out together and came in together; the boy said he came about his certificate; Stokes was then with him.

Two other witnesses corroborated some portion of this testimony.

Mr. S. Stephen then addressed the jury at considerable length, arguing on the improbability of the whole of the evidence given by the boy Leary, and took some objections to the form of the information.

The learned Judge in summing up observed that he did not know what way to account for the course of acting adopted by the prisoner in this case unless they could come to a conclusion that the witness and prisoner were acting in concert to fabricate a charge of felony and divide the reward; the question for their consideration was whether prisoner apprehended the boy Leary on the Brickfield and whether he took the pistol away from him, those being the assignments of perjury.  The jury found the prisoner Guilty.

Judge Burton observed, that he should not then sentence him, as Mr. Stephens had taken some objections to the information which would be argued before the three Judges on Saturday next.  The Jury had arrived at a very proper verdict, and in any one case he never knew such villainy exhibited as in the present case, it was horrible.  He wished to know whether Mr. Solicitor General intended to indict him again, who replied, he had not yet made up his mind upon the point.

 

Forbes C.J., Dowling and Burton JJ, 17 May 1834

Source: Australian, 20 May 1834[2 ]

 

John Stokes, who had been found guilty of perjury, was put to the bar in double irons to receive the judgment of the Court.

Mr. S. Stephen arose to move in arrest of judgment.  The learned gentlemen contended that it had not been set forth in the information that the swearing of the defendant was at all material to the matter of issue, or was it shown to have been such by the part of the affidavit set forth in the information; it should appear that the averment was material, or so set forth upon the record.  In 2d Russel on Crimes, 541, it was laid down, if the averments were set forth as material, it was sufficient, if not it was bad.  In 5th Reports, 319, the King v. Dowling, where a manuscript report was referred to by Lord Kenyon, Chief Justice, as the decision of Judge Butler at the Lancashire Lent Assizes, 1792, the King v. McKeron, it was held that the necessary allegations being hasty, it was fatal to the indictment.  No authority or dictum to the contrary had ever been held, for if the oath was not averred to be material or proved to be so, it was fatal, and in Archbold's Criminal Pleadings it was laid down to the same effect.

The Solicitor General in reply observed that it was not necessary to have an actual averment on the face of the information, if proved that the assignment was material under the statute spoken of by Lord Kenyon, it would be seen that it was not necessary to set forth the proceedings at length on a charge of perjury.  In 4 Wentworth's Pleadings, and in Starkey's Criminal Pleadings, in those precedents it was laid down that no such averments were necessary.  The affidavit here on which the perjury was assigned was made before a Magistrate on a charge of perjury - at all events it was against a prisoner of the crown, found with arms in his hands, which amounted to a felony.  He felt the difficulty of supporting the information in consequence of the clerical mistake, which he regretted to have occurred - it had been done by a clerk in the Attorney General's Office.

Chief Justice - If the point of carrying arms under the Local Act, was intended to have been relied upon, there should have been an averment that it was without the leave of the master - if the information was under the Colonial Act, it should have negatived the leave of the master, which was a strong point in this case, but it would not be supplied by innuendoes to bolster up a defective information.  On consulting with his brother Judges, they had come to the conclusion that it was too plain to admit of contest on the objection taken, that the information was defective.  It appeared upon looking at the affidavit, and by the statement of Judge Burton, that it was a gross case of perjury, and however they might regret the escape of the offender, still the rules of pleading must be observed, and they could not travel out of the beaten tract to serve a particular purpose, it was necessary there should be a corpus delicti, for the case could not be bolstered up by evidence.  They were sorry the prisoner should escape, still the information was so defective that it could not support the judgment.

The Solicitor General observed that in the 1st Starkie, 129, and in Lord Raymond, 256, in the case of Gripes, where they arrested judgment, but being satisfied the prisoner was guilty, they allowed the prosecutor to file another information.

Mr. Stephen opposed this motion, on the ground that he could not be detained, unless there was an information on the files of the Court against him.

Chief Justice - We are clearly of opinion that we can detain him until an information is put upon the files of the Court, but if not we will discharge him but we allow him bail, himself in £100, and two sureties in £50 each, giving the Attorney General twenty four hours notice of the names and residences of his bondsmen.

 

Dowling J., 21 August 1834

Source: Australian, 22 August 1834[3 ]

 

Thursday. - Before Mr. Justice Dowling and a Jury of Officers.

John Stock, a constable of Penrith, was indicted for wilful and corrupt perjury on the 21st February last, before George Druitt, Esq., J. P., at Penrith, while preferring a charge of felony against a youth of the name of James Leary, an assigned servant to Sir John Jamieson.  Leary had been given in charge to Stocks, who, instead of putting him into confinement, brought him on to Parramatta, and then to Sydney, saying he would get him out of the Colony in some vessel about to sail; on coming a little on the Sydney side of the Parramatta Toll, Stocks, who was known as Sir John Jamieson's constable, saw Sir John's carriage turn the corner of the road at about 100 yards distance, and immediatily [sic] jumped the fence along with Leary; when the coach came to the spot where they had leaped over, the coachman called Stocks by name, and asked him to come from the bush as he knew him; they however remained, and the coach went on - Stocks seemed alarmed at meeting the carriage, and talked of returning to Penrith, he however determined on going to Sydney.  On arriving there, Stocks pretended to go out to make enquiry respecting the ship, and came back and stated she had sailed; and that he would return to Penrith; they accordingly took the coach the next morning for Parramatta.

Stock swore at Penrith, that on their return, and while in the bush, Leary being then in handcuffs, knocked him down, and committed a felony upon him, that he fired at him with a pistol, which knocked his cap off.

Leary now swore, that he never had handcuffs on during the journey up or down, and that when Stocks fired at his cap, he held it in his left hand and fired the contents of the pistol through it, saying, he could serve Leary that way if he liked.

Leary also swore to the prisoner attempting to take improper liberties with him.

Several witnesses from Penrith.  Parramatta, and Sydney, proved that Leary was not handcuffed, and the evidence altogether was of so conclusive a nature, that there could not be the slightest doubt of the guilt of the prisoner.  In the course of the trial there could be little doubt that the prisoner, while in Sydney, had also committed a forgery.

The Jury requested the boy to put on the cap, and on their examining it on his head, it appeared that if the ball had penetrated where the holes were, it must inevitably have shot him dead on the spot.

The learned Judge was about to sum up, when the Foreman of the Jury informed him they had made up their minds, a verdict of guilty was immediately recorded.  Remanded.

The Solicitor General prayed the immediate judgment of the Court, but His Honor said that before doing so, he would take the opinion of the other Judges.

 

Forbes C.J. and Dowling J., 27 August 1834

Source: Australian, 2 September 1834[4 ]

 

John Stocks was then brought up convicted of wilful and corrupt perjury.  In passing sentence, His Honor said it had seldom been his lot to meet with a case so pregnant with human depravity as that of the prisoner, to forgery was added breach of trust, and every feature of crime which it was possible for the human mind to imagine, and His Honor only regretted that the law would not permit him to visit it with a heavier punishment.  The sentence of the Court was, that the prisoner be exposed in the Market-place on Thursday next, between the hours of 12 and 2 o'clock, with a placard on his person, stating his offence, after which to be imprisoned in the gaol for one month, and then to be sent to a penal settlement for seven years.

 

Source: Australian, 5 September 1834

 

Yesterday, John Stokes, convicted at the last criminal court, of wilful and corrupt perjury, was brought from the jail into the yard of the police office, with the usual placard affixed to him, accompanied by the finisher of the law and his assistant; and at a few minutes before 12 o'clock, he was taken to the centre of the New Market Place, where the platform had been removed; the under sheriff then read his sentence, and he ascended the ladder, followed by the before mentioned two worthies who very soon adjusted the apparatus, and the prisoner remained there from 12 to 2 o'clock, agreeably to part of his sentence.  The prisoner maintained the utmost apathy and indifference both before and after the exhibition; the crowd was not very numerous on the occasion, and considering the various crimes which it appeared on his trial this man had been guilty of; we were surprised that we did not hear more expressions of disgust at the aggravated features of his case, but this might perhaps have arisen from the imperfect knowledge which most of the crowd had of it.  Stokes was taken back to jail, in order to the remainder of his sentence being carried into effect.

 

Notes

[1 ] See also Sydney Gazette, 13 May 1834.  For the notes of the trial judge, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2415, vol. 12, attached to p. 72.

[2 ] See also Sydney Herald, 22 May 1834; Sydney Gazette, 20 May 1834.  For commentary, see Australian, 20 May 1834; it claimed that this was ``the most revolting perjury we ever saw recorded," and criticised the Attorney General for the error.

[ 3] For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3285, vol. 102, p. 146.

See also Sydney Gazette, 23 August 1834 (noting that the prisoner was tried at the last criminal sittings on a related matter, but the former conviction was quashed for a technical informality).

[ 4] See also Sydney Gazette, 2 September 1834; Sydney Herald, 1 September 1834.

Published by the Division of Law, Macquarie University