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

R. v. Davies, 1837

perjury, new trial, indictment, error in

Supreme Court of New South Wales

Dowling A.C.J., Burton and Willis JJ, 18 November 1837

Source: Sydney Gazette, 21 November 1837[ 1]

William Owen Davies convicted of perjury.  Mr. Foster rose to move for a new trial; he said that there was a point reserved, which he wished to call the attention of the Court to, it was whether the case in which the perjury was committed came within the jurisdiction of the Court of Requests which it clearly did not as it was the balance of a disputed account above £10, being in fact upwards of £11.

The Acting Chief Justice said he would briefly state the facts of the case; it appeared that in the month of May last, Hunt was indebted to Ashby in the sum of £4 8s. 8d. for which he delivered his bill and received £2 on account, for which a receipt was given; a fresh account was then commenced and the balance of £2 8s. 8d. was made the first item, thus ``to bill delivered £2 8s. 8d."; the bill ran on till it amounted to of £98s. 2½d., which was the sum sued for.  At the trial he held that the sum of £2 having been paid and the balance having been carried to a fresh account, it was not an unsettled account above £10.

Mr. Foster then argued at considerable length, to shew that the prisoner was entitled to a new trial under that clause of Court of Requests, Act which says that the jurisdiction of the Court shall not extend to any sum being disputed balance of an unsettled account above £10.

Mr. Justice Burton said that the debt was never uswards [sic] of £10 at any one time; the bill that was sued for the Court looked upon as the original bill.

The Acting Chief Justice said the point was not arguable.

Mr. Foster said that as the court was so strongly against him, he would abandon that point and proceed to a point in arrest of judgment which he was sure must be fatal.  In order to constitute perjury, it was necessary that the oath should be taken before a court or person having competent authority, which court or person must be properly described in the information.  There was a case in Matthews' Digest in which the oath was said to be taken before a judge of assize, and it was afterwards found that it was taken before a judge of oyer, terminer, and gaol delivery, the misdescription was held to be fatal; so in a case that was ordered by a judge to be referred to arbitration, the witness to be examined on oath to be taken before a judge or commissioner, and perjury was committed on an oath taken before a commissioner, judgment was arrested, the commissioner not having authority to administer an oath to a witness who was to be examined viva voce; these cases clearly showed that it was necessary the court should be correctly described.  In the present case the information alleged that the perjury was committed at a Court of Requests in and for the colony aforesaid, before Roger Therry, Esquire, commissioner of the said court, and if it appeared that there is no such court as the Court of Requests for the colony, the information, he confidently submitted, must fall to the ground.  The English Act of Parliament under which the Courts of Requests are instituted, says that the Governor and Council may establish courts of civil jurisdiction, to be called Courts of Requests, in different parts of the colony, and afterwards says that ``each of such courts shall have jurisdiction, &c."  The local Act made in pursuance of this Act, says that courts shall be held at and for Parramatta and Liverpool, and goes on to enumerate ten counts, each of which, he contended, had a separate and exclusive jurisdiction.  There was a second objection which he felt most strongly, although not so strongly as he did the first.  The information alleged that the prisoner swore that the money was paid in the presence of Ashby and his clerk, meaning one Michael Hogan, although it had not before been stated that Hogan was clerk to Ashby, and it was quite clear that nothing could be stated by inuendo [sic], that had not been previously averred in the introductory part of the information.

Mr. Justice Burton asked Mr. Foster if it would not have been sufficient to state that the money was paid in the presence of Ashby and his clerk, without any inuendo [sic] at all, and afterwards have proved that Hogan was clerk to Ashby.

Mr. Foster said that he did not rely very strongly on the objection, but he felt confident that judgment must be arrested on the first ground.

The Attorney General said that he thought it was self-evident that all that was necessary had been stated in the information.  It stated that the Court of Requests for the said colony was held at Parramatta, which was the case; there is but one Court of Requests for the said colony was held at Parramatta, which was the case; there is but one Court of Requests in the colony, which is held in different districts for the sake of convenience, but wherever it is held it is the Court of Requests for the colony;  How could it be otherwise?  There are no settled defined districts in the colony.

Mr. Justice Burton drew the Attorney General's attention to the second and third sections of the Act, which say such ``courts respectively" shall have jurisdiction, clearly shewing that each court is a separate court, besides each court had its own officers; it was expressly provided by the Act that each court should have its own ministerial officers.

The Attorney General at great length contended that the various Courts of Requests are, in fact but one court; and that the information was perfectly good.

After Mr. Foster had said a few words in reply, the Chief Justice said, it was with great reluctance that the court admitted the force of Mr. Foster's argument.  The main objection was, that the court was misdescribed when stated to be a Court of Requests in and for the colony; the court could not recognise any such court.

Mr. Justice Burton said, that a jury having pronounced him so, he was bound to consider the prisoner guilty, and he therefore would not yield to the objection did he not feel as a lawyer, that he was bound to do so.

Judgement arrested and the prisoner discharged.

Notes

[1 ]See also Australian, 21 November 1837; Dowling, Proceedings of the Supreme Court, Vol. 145, State Records of New South Wales, 2/3330, p. 68.

Published by the Division of Law, Macquarie University