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

R. v. Welsh [1834] NSWSupC 51

forgery - Bank of Australia - identity, proof of

Supreme Court of New South Wales

Dowling J., 5 May 1834

Source: Sydney Herald, 8 May 1834[ 1]

Edward Welsh stood indicted for forging an order on the Bank of Australia for the payment of money purporting to have been drawn by George Cox, with intent to defraud Elias Ellis, of Sydney, on the 3d of January last.  A second and third count charged the prisoner with uttering the said order, knowing it to be forged.

The prosecutor deposed that he keeps a general shop in King-street.  On the morning of the day laid in the indictment, about the hour of 10 o'clock, the prisoner came into his shop and priced some shirts; he said he would take half a dozen if witness would accept of the order for £2 10s. in payment, which he produced; witness having hesitated, the prisoner said, ``Oh if you don't like it, don't take in, the bank is now open, and I can get it cashed;" witness, judging from the off-handed manner of the prisoner and the smallness of the sum, that it was correct, gave him the half dozen shirts, which left a balance of 4s. in prisoner's favor, which prisoner said he would want to pay his expences [sic] on the road up the country; the prisoner gave his name Deane, which name was on the body of the order.  A short time after prisoner had left he shop, witness had a misgiving, as to the validity of he order, and lost no time in taking it to the bank, where it was immediately pronounced a forgery; witness having observed the direction taken by the prisoner on his leaving his shop, went in search of him, and came up with the prisoner in Market-street, who, from his appearance, he judged to be the person he was in search of; witness accosted him, saying, ``that is a forged order you gave me at my shop just now," when the prisoner exclaimed, ``me! Why I never was in your shop in my life, who are you, I don't know you, you may take me if you like, I'll go any where with you; but you may depend upon it I'll make you smart for accusing me of such a thing;" the prisoner walked quietly with witness until they came to the police office, when he gave him in charge on suspicion only, although satisfied in his own mind, that he was the man; yet, as he had treated the matter with so much indifference, he was anxious to avoid the hazard of a mistake, as there might be a possibility of his being deceived.  The prisoner readily told where he resided, and accompanied witness and a constable to the house; but his mother being out the house was secured; he expressed his readiness to break it open, in order to its being searched, but the constable objected to that course.

Constable Matthews deposed to the above-mentioned circumstances; the prosecutor said, after looking attentively at the prisoner, ``the more I look at that man, the more I am convinced he is the same person who came to my shop with the forged order, and I therefore give him into your custody, on that charge."

Two witnesses were called who deposed to the order not being in the handwriting of Mr. Cox, there was not the slightest resemblance.

His Honor implored the prosecutor, as the question of identity rested solely with him, deliberately to consider, whether he might not possibly be in error, as it hazarded the perpetual banishment of the prisoner.  The prosecutor said that he had not a shadow of a doubt as to his identity; he regretted the necessity of appearing under such circumstances; it was painful for him to reflect on the consequences to the prisoner, but he was positive that he was the man.

A witness was called who deposed to the general good character of the prisoner, having known him from his boyhood.

His Honor after recapitulating the evidence, and pointing out the hesitation of the prosecutor in the first instance in coming to the conclusion that the prisoner was the man, and his mind having received that impression, as it were by degrees, observed to the Jury, that there was no question in which more melancholy errors had developed themselves, than that of identity; and as they had to depend solely on the evidence of the prosecutor, involved as it had been in doubt as to the identity of the prisoner, it behoved them to weigh fully all the circumstances, and if any doubt arose in their minds, to let the prisoner have the benefit of it.  His Honor related an anecdote which had occurred in his own experience, which proved the infirmity of human judgment in this important matter.  Sir Charles Bunbury on crossing Hounslow Heath, accompanied by three servants, was stopped by a highwayman and robbed; a man was apprehended on suspicion, and his identity most positively sworn to by Sir Charles and his three servants; on such a body of evidence, who could entertain a doubt? the unhappy man was condemned and executed at the Old Bailey, asserting his innocence to the last; but it was afterwards most satisfactorily proved, that he was innocent; and a highwayman who suffered a short time after, declared on the scaffold, that he it was, who had robbed Sir Charles, and stated such particulars, as placed it beyond a doubt.  With these circumstances before them it was for them to say what confidence was to be placed in the judgment of the prosecutor, who was a respectable citizen, as the identity of the prisoner.  The Jury returned a verdict of Not Guilty.

 

Notes

[ 1] See also Australian, 9 May 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 115.

Published by the Division of Law, Macquarie University