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

R v Laing (1835) NSW Sel Cas (Dowling) 174; [1835] NSWSupC 99

forgery - felony attaint, right to property - ticket of leave - convict, proof of conviction - Bank of New South Wales

Supreme Court of New South Wales

Forbes C.J., 7 November 1835

Source: Sydney Gazette, 10 November 1835[1 ]

Before His Honor Chief Justice Forbes and a Military Jury.

John Laing was arraigned at the bar, charged with having on the 16th day of October, forged a cheque on the Bank of New South Wales, with intent to defraud one Mr. Toogood, it purporting to be drawn by Mr. John Cox, in favour of Mrs. Anne Howe.

The Solicitor General appeared for the prosecution, and

Mr. Sydney Stephen for the defence.

Mr. Toogood, sworn, I reside in King street; I keep an Eating house; I know the prisoner at the bar; he came to my house, between 4 and 5 o'clock, on the 16th of October; he was then in Mrs. Ann Howe's employ; he brought me a check and said, he would thank me to cash it for him, as the Bank was closed; I gave him £9 and told him, he could have the silver in the morning; he endorsed the cheque in my presence; he did not come the next morning, but sent me a letter with a promissory note enclosed, by the waiter at Sandwell's; I went to the Gazette Office, but did not see the prisoner; I went then to the police-office and filed an information; I did not see him again till brought up at the police office; I asked him whether the cheque would be paid in the morning, he said yes; on presenting the cheque to Mr. Black at the Bank, I was told Mr. Cox had no account there.

Cross-examined by Mr. Sydney Stephen I knew the prisoner well before this transaction; there was some conversation passed, but I do not exactly remember the words.

Mr. Halden sworn. - I know the prisoner at the bar; he was employed as Clerk in the Gazette Office; to the best of my belief this order is in the prisoner's hand writing; this letter also, I believe to be the same hand writing.

Crox [sic]-examined by Mr. Sydney Stephen - I was on very good terms with the prisoner; the moment this letter was put in my hand, I knew it to be Mr. Laing's hand writing; Mr. Toogood asked me before he went to the Bank, whether the cheque produced was genuine; I immediately told him it was a forgery; I do not swear to any particular word; I swear to the character of the handwriting; it is very unlike my own hand writing; mine might vary a little according to the pen I write with; I do not know any one that wishes to injure Mr. Laing in our Establishment; for my own part, I am sure I hold not the slightest enmity towards him.

George Brown sworn. - I live at Mr. Sandwell's, the Rose and Crown; last Saturday three weeks the prisoner sent me with a letter to Mr. Toogood, which I delivered into his hands.

Cross-examined by Mr. S. Stephen. - I never carried any letter to Mr. Toogood but the one given me by Mr. Laing.

Mr. Black sworn. - I am Cashier of the Bank of New South Wales; on the 17th of last month the order produced is the one that was presented by Mr. Halden, for payment; there was no account kept there in the name of Cox, therefore the cheque was not paid.

Cross examined by Mr. S. Stephen. - There was money left at the Bank once to take up a bill, but that I do not call keeping an account.

Mr. Sydney Stephen, for the defence, submitted to his Honor that there was not sufficient proof as to the handwriting of Mr. John Cox, therefore, although the endorsement was allowed to be that of the prisoner's it did not constitute  the forgery.

Mr. Thomas Ryan sworn. - I have the registry of a ticket-of leave grated to a William Toogood, who arrived in 1832, by the Ship Surry, a prisoner for life.

Mr. S. Stephen - I will put it to your Honor, whether a prisoner can be defrauded, as the Act says that no prisoner can hold property.  The word defraud has a legal meaning, and a person situated as Mr. Toogood is, I maintain cannot be defrauded.

The Solicitor General answered Mr. Stephen's argument, by stating, that since the Act Mr. S. quoted, he would read one, where any individual forging, with intent to defraud any person should be deemed guilty of felony; and it was clear that it extended to any person whatsoever - every person in existence.

The Learned Judge gave his opinion that Mr. Stephen's argument was over-ruled.

The Solicitor General maintained that if Mr. Toogood had not paid one farthing, the offence of uttering would have been equally complete - having offered such an instrument for payment.  He also argued that although Mr. Toogood could not hold property, he might be the bailee of property, and in this case the forgery was complete - he could hold money for the benefit of the Crown although he could not for himself.

Mr. James Raymond sworn. - I am Clerk in the Colonial Secretary's Office; I produce the indents of arrival of William Toogood; he was tried and sentenced life in the year 1832, and arrived here in 1833; this indent is kept as an authentic instrument in the Colonial Secretary's Office.

The Learned Judge briefly stated his opinion, that the two latter counts of the indictment, which charged the intent to defraud one Richard Jones, as President of the Bank of New South Wales, could not be sustained under the evidence.  The description did not come up to that laid down it the Act of Parliament, or in the local ordinance.  With respect to the objection taken as to William Toogood being a prisoner of the crown, and as such, one who could not be defrauded, he was of opinion, that argument was not tenable in the present case.  The prisoner was not charged with a larceny of any chattel belonging to William Toogood, upon which perhaps the argument taken might be raised; but he stood indicted for forging, and uttering a forged and false instrument for the payment of money, with intent to defraud William Toogood.  Now, although the Act of the Imperial Parliament denied the right of possessing property to a transported offender under an unsatisfied sentence, yet it was matter of notoriety that persons so situated could acquire and hold property in trust for the Crown.  It occurred to him, the Learned Judge, that to have introduced such a count in the present indictment would have been nonsense, for how could the Crown be defrauded of that which it never possessed?  Looking at the words of the Act of the 1st Wm. the 4th, ``any person whatsoever," his Honor said he was of opinion that William Toogood came under that general description of persons, and that he was a person who could be defrauded.  He should therefore put the case to the Jury upon the three first counts of the indictment, leaving them to decide as a question of fact on the evidence adduced, whether William Toogood was or was not a prisoner of the Crown under an unsatisfied sentence of transportation, of which, he apprehended, there could be but little doubt.

Thomas Metcalfe sworn.  - I have known the prisoner for five years; I never heard anything against him; he is of highly respectable parents at home.

Thomas Wake sworn. - I know the prisoner at the bar; I am principal overseer of Mr. Busby's gang; I never heard anything against him.

Mr. Haswell sworn.  - I have known the prisoner at the bar about five months; I never anything against his character before this.

His Honor having charged the Jury at considerable length, both on the law and the facts of the case - they retired, and after about two minutes consideration, returned with a verdict of Guilty against the prisoner, who was remanded for judgment.

 

In banco, Forbes C.J., 20 November 1835

Source: Sydney Herald, 23 November 1835[2 ]

 

Friday. - The Judges having taken their seats, the following prisoners convicted during the past Criminal Sessions, were brought up for sentence.

John Laing, convicted of forging an order on the Bank of New South Wales, for the sum of £9 7s., purporting to have been drawn by John Cox, and endorsed to Ann Howe, with intent to defraud Thomas Toogood, on the 16th October last.  On the prisoner's trial an objection was raised by his Counsel against the form of the indictment, as to whether Toogood was such a person as could in law be defrauded, he being a prisoner of the Crown, (a Ticket of Leave holder) and not, therefore, in law, eligible to hold property.  His Honor observed, that he stated at the time that there was nothing tenable in the objection, but he would take the opinions of his brother Judges thereon, they had minutely considered the subject, and the Court felt called upon to say, that there was no legal ground for such an objection, it was sufficient for the purposes of the law, to aver the intention to defraud any person; a prisoner of the Crown, holding a Ticket-of-leave, was such a person as might be defrauded, sufficiently to suit the purposes of the law.  In disposing of that objection, therefore, it only remained to award the sentence of the law, over which, in such case, the Judges had no discretion.  Sentence, to be transported to Van Diemen's Land for the period of his natural life.

 

Notes

[1 ] See also Australian, 10 November 1835.

[2 ] This was recorded in Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465, p. 79, as follows:

 ``[Indictment for forging with intent to fraud a transported convict is good.]

``The King v Laing

``The prisoner was tried for forging an order for the payment of money with intent to defraud one Toogood.  It was proved that Toogood was a transported Convict, and it was contended on the part of the prisoner that as Toogood was incapable of holding property (2 & 3 W 4 C. 62. s. 2) the indictment was ill, & upon the point being reserved & mooted.

``The Judges held the indictment good, for that if it was no less criminal in the prisoner to forge, whether the intent was to defraud a convict or a free man.

``Sentence passed."

See also Sydney Gazette, 26 November 1835; Australian, 24 November 1835.

Published by the Division of Law, Macquarie University