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

R. v. Wright [1834] NSWSupC 57

malice, meaning of - perjury, mens rea

Supreme Court of New South Wales

Forbes C.J., 7 May 1834

Source: Sydney Gazette, 10 May 1834

Martin Wright, was committed for wilful and corrupt perjury, committed in the Supreme Court, in a certain civil action, -- ``Flannagan v. Wilson," in which the plaintiff sought to recover the value of sixty suits of clothing, furnished the Sydney constabulary.  On the trial of that issue, the defendant, who was called on the part of Flannagan, swore that Colonel Wilson, the Chief Police Magistrate, publicly said, on the police parade, that he would see the said Flannagan paid for the clothes furnished the constables, thereby making himself responsible for the payment.  This constituted the alleged perjury.  A great many witnesses, for and against the prosecution were examined, among whom was Colonel Wilson himself.  The defence was conducted by Messrs. Therry and Nicholls, the latter of whom addressed the Jury at length, in a speech of considered effect.  The learned Judge having summed up the evidence, left the case to the Jury, who, at seven o'clock, retired to consider their verdict.  In about half an hour they returned into Court with the following verdict.  We find the defendant guilty, but recommend him to mercy, on the ground that he had no malicious intention.  Upon this announcement Mr. Therry submitted that the verdict was an anomaly which rendered it tantamount to not guilty.  The Chief Justice observed, that this was not the proper time for the learned counsel to take exceptions - the Jury were in his hands - and it was quite competent for him, even if the Jury had returned a verdict of not guilty, to desire them to reconsider it.  His Honor then explained to the Jury, the Law of Perjury, and directed them to consider whether by acquitting the defendant of malicious intention, they meant malice in its legal or its popular sense, because, if they meant the former, the case would not amount to perjury, which must not only be false but corrupt, and to a certain extent, deliberate swearing.  His Honor said it was notorious, there were two significations to the term malice, and in directing them to turn their attention to that point, he should again leave the case in their hands.  The Jury returned to the jury-room, and at half-past eight were summoned into Court, and asked whether they had agreed upon their verdict.  Replying in the negative, the learned Judge having repeated his former directions, adjourned the Court for an hour, stating his intention, should they not agree by that time, to continue the adjournment until the following morning.  At half-past nine the Court re-opened, and the Jury shortly afterwards returned the following verdict - Guilty of perjury, with legal but not popular malice.


Forbes C.J., Dowling and Burton JJ, 10 May 1834

Source: Australian, 13 May 1834[1 ]


Saturday.  -  The three Judges took their seats in Banco, when Martin Wright convicted of perjury was placed at the bar, Mr. Therry for prisoner contended that the information was defective, and the verdict that the prisoner was guilty of perjury with legal malice not moral malice, was an absurdity, and not such a verdict as the Court could take cognizance of.  The Judges over ruled the objections and held the verdict to be conclusive against the prisoner, who was sentenced to the transported to a Penal Settlement for seven years.  The prisoner left the bar protesting that Colonel Wilson used the words.



[1 ] See also Sydney Gazette, 13 May 1834; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2415, vol. 12, p. 73; Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3280, vol. 97, p. 1.  Burton's notes recorded the jury's initial verdict as ``Verdict Guilty - recommended to mercy on the ground of their believing him not to have acted maliciously."  The Chief Justice delivered the judgment of the court as follows: ``If `Malice' had been negatived - then we do not say but that it might have been differt - but that is not so - Malice in law has been prod -; what has Moral Malice to do with it -  Sentence to be Transported out of the Colony for 7 yrs."

Published by the Division of Law, Macquarie University