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

R. v. Hughes and others [1837] NSWSupC 59

conspiracy, mens rea - Crown land, disposal - land law, Crown land disposal - auction, fraudulent - jury verdict, ambiguity of

Supreme Court of New South Wales

Dowling A.C.J., 10 May 1837

Source: Sydney Herald, 18 May, 1837[1 ]

Wednesday, May 10 - Before the Acting Chief Justice and a Special Jury.

John Terry Hughes, merchant; Peter Macintyre, farmer; George Porter, merchant; James White, farmer; Matthew Goggs, farmer; and John Eales, farmer, were indicted for conspiracy.

The information set forth, that on the 14th December, and long before, there were certain rules ad regulations for the disposal of Crown Lands in the Colony of New South Wales; and that in pursuance of the said rules and regulations a sale was advertised to be held of various portions and allotments of Crown land; that a sale was held accordingly; and that the defendants, knowing the premises, wickedly and maliciously did meet, conspire, combine, confederate and agree together, to prevent fair and open competition for the same, thereby injuring the said auction, and defrauding our Sovereign Lord the King; and that the defendants met at the Market-place, and in pursuance of the conspiracy agreed that none of them should bid for the land except the said John Eales; and accordingly they refrained from bidding, in order that the land might be knocked down to the said John Eales, at the minimum price of five shillings per acre; and that it should afterwards be sold by private sale for the benefit of defendants, together with one Hamilton Collins Sempill; and that the said Hamilton Collins Sempill intended to become a bidder for the said land, but was urged and incited not to bid by the said defendants, in pursuance of the conspiracy entered into, who as an inducement offered him an equal share in the profits arising from the private sale of the said lands; and the said defendants, in pursuance of the confederacy, afterwards met at the Royal Hotel, in order that the land might be sold amongst them.  A second count laid the offence as being committed with intent to defraud the revenue of the Colony.

The defendants Goggs and White pleaded Guilty; the other defendants Not Guilty.

The Attorney-General and Mr. Therry appeared for the prosecution.  Mr. Sydney Stephen appeared for Mr. Macintyre, and Mr. Foster and Mr. Windeyer for Messrs. Hughes, Porter, and Eales.

Mr. Therry opened the pleadings, and the Attorney-General stated the case to the Jury and proceeded to call witnesses

William Macpherson. Esq. - In December last I was Collector of Internal Reference; it was my duty to superintend the sale of Crown lands; there are rules and regulations for the sale of lands; this is the book of land sales; I had charge of it; these are the rule and regulations for the sales of Crown lands santioned [sic] by Government; they are publicly read at the sales; it was my duty to prepare these rules.  There was a sale on the 14th December in the Market-place; notice was given in the Government Gazette; this is the Gazette of the 17th August; there is notice of the sale on the 14th December; the notice contains a description of the lots to be sold; the sale was held pursuant to the notice; I was present; Mr. Jacques was the auctioneer; lots 90 to 95, applied for by Mr. Goggs, were purchased by Mr. John Eales, at 5s. per acre; that is the minimum price according to the Government regulations; lots 119 to 123, inclusive, were also purchased by Mr. Eales; they were applied for by Mr. George Porter, one of the defendants; the notice of the sale of the last lots were published on the 5th October; lots 181, 182, 183, and 184 were applied for by James White, and also purchased by Mr. Eales; I think I saw Mr. Porter at the sale; I saw Mr. Macintyre, Mr. Hughes, Mr. Eales; I think I saw Mr. Goggs there; I saw Mr. Sempill; I was present the whole time of the sale; I formed no suspicion of the fairness of the sale; I cannot say, from my own knowledge, that there is a system to prevent competition; the total quantity of land purchased by Mr. Eales was 13,319 acres, for £3,337 5s.; I did not complete the sale because I was informed there was a conspiracy to defraud  the Government; Mr. Macintyre met me after the sale; he said "I am going to have a share of the land, - we are going to divide it among us at the Royal Hotel;" I made no observation on the subject.  At the sale, when the biddings commenced, there was a great noise and talking, and I perceived all the defendants behind me together; Mr. Sempill, I think, was about bidding when some of them called to him and I desired Mr. Jaques to step a moment; I supposed Mr. Sempill was going to bid against some of the applicants, and as I was desirous that new applicants should get their land without opposition, I supposed they wanted to prevent Mr. Sempill from bidding against them, and I stopped the sale for a minute of two, and on the sale going on, Mr. Sempill did not persevere in bidding; I do not know who called Mr. Sempill, I think I can say all the defendants were there; Mr. Terry Hughes was at every sale; neither Messrs. White, Porter, nor Goggs bid for the land they put up; Mr. Eales purchased it; I had a conversation with Mr. Porter, I think, in the Commercial Bank; It was to ascertain the likelihood of anything being done on Mr. Sempill's representation; the purport of what he said was, that he understood Mr. Sempill had been making representations, and that the Crown lawyers were about proceeding against the parties; he made no comment on Mr. Sempill's statement; up to the present date the sale has not been complete, except in the case of Mr. Goggs, who paid the money to my chief clerk, before he was aware of anything being done; I sent my clerk to Mr. Goggs to take back his money, as I should not accept it as part of the revenue, but he remained obstinate and the money is now in the Bank; my clerk had no special instructions in the case; the money was paid three weeks before it was due; it forms part of the revenue of the Colony; Mr. Eales gave me notice that he had purchased two lots for Mr. Goggs, and one for Mr. White; Mr. Eales afterwards tendered me some other notices, but I refused to receive them; in a general way, both Mr. Porter and Mr. M'Intyre said there had been a division of the land at the Royal Hotel.

Cross-examined by Mr. Stephen - I framed the rules and regulations myself, submitting parts that I had any doubt of to the Crown lawyers; these conditions are read by the auctioneer at the sale; I do not know by what authority the Governor disposes of Crown Lands; the objects for selling land are to supply persons with land, and likewise to raise a revenue; it is impossible for me to say which is the principal object; the Government would not like one person to purchase all the land; that would not increase the population; I consider the principal object to be the encouraging the peopling of the country; I was always desirous that applicants should get their land, especially new comers; I did not hear Mr Sempill make a bid; it I had understood a bid to have been made, it must have stood; it was Gogg's land that Mr. Sempill was about to bid for; it has occasionally occurred that a bid has been withdrawn; when I have seen two bidders running one another up very high, I have asked them if they could not divide the land; I do not remember having said anything in those terms at this occasion; there was no cause for me to make such a remark; there was no high bidding here; whenever I made any remark of the kind it was when the land had been run up to a considerable price; I first heard there had been a conspiracy from Mr. Sempill, it was from him I learned it; I was unaware of the thing being illegal until Mr. Sempill told me Mr. Wentworth said so; it was about two days afterwards that I heard so; it was aware there is an ill-feeling between Mr. Sempill and Mr. M'Intyre; I remember Mr. Macqueen running Mr. M'Intyre to £42 10s. per section for the renting of land, not Mr. Sempill.

By Mr. Foster - Mr. Porter put up five pieces of land, about four thousand acres; he must have sent in his application upwards of three months; I supposed Mr. Sempill was about to bid against Goggs, who I knew had no land; I thought, instead of running each other up, they would each take a section or two; I have acted in that way before; I never said anything about the Government, I have recommenced persons to divide the land when it reached an outrageous price; Mr. Porter never purchased any land before; it was sold the same day as the other to Mr. Eales; Mr. Hughes was almost a constant purchaser; before I had any conversation with Mr. Sempill, Mr. Macintyre told me he was to have some of the land.

Re-examined - One of the objects of selling land is to increase the revenue, and I am bound to take the highest bidder; it was the opinion of Mr. Wentworth, conveyed to me by Mr. Sempill, that informed me there was a conspiracy; Mr. Macintyre merely said he was going to have some of the land; I am certain Mr. Porter was never an advertised applicant for land in any other instance.

Mr. William Jaques - I am Government Auctioneer for the sale of Crown Lands; I attended a sale on the 14th December; I read the conditions of sale, they are the regulations under which the sale takes place; I recollect seeing some of the defendants there; I saw Hughes there; he is very seldom absent; I saw the party who signed his name "John Eales;" he purchased several lots at the upset price, and somebody said there was a bidding, and then somebody said that it was a mistake; there was a group and a consultation; I do not know who formed the group; I have had no conversation with any of the defendants, but Mr. Terry Hughes said, "what are you going to do with me?"  I said, "what's the matter ?" and he said, "I have received a notice of conspiracy."

Cross-examined by Mr. Stephen - I do not know whether Mr. Sempill made a bid; there was a beck, and it was said to be a mistake; the name of the applicant is only nominal; sometimes he is only an agent; it is injurious for a man whose judgment is good to advertise land, as people may bid on his judgment, and for that reason the applicant's names are not now made public; my instructions are not to incite people to bid largely; when people, in their eagerness, have bid against themselves, I have told them so; I may have said there is no subterfuge to enhance price; I did not depress prices; Mr. Macpherson has recommended an arrangement to be made, and has told me not to dwell; land is only put up in sections of a square mile, except in special instances; land would not generally be sold for a higher price for being put up in smaller lots.

By Mr. Windeyer - I have been an auctioneer for forty years; there are many methods of sale by auction; at the sales of all private property, the main object is to get the highest possible price; I should not recommend parties to arrange with each other; there is a difference in principle and in essence in the Crown land sales; I recollect the first sale after the names of the applicants were suppressed in the Gazette; I recollect Mr. Macpherson saying the names were left out as an experiment to see how it would answer; I recollect either Mr. Macpherson or Mr. Riddell saying, that the names of applicants would not be in future published in the Gazette, because it led to an unnecessary opposition to the applicant; it was at the sale in question; I am sure it prevented opposition from a party making use of another's name when putting up land; of course, if there was no name it would have a similar effect; when a man has been drunk I have refused his bid.

Re-examined - The object in omitting the names was to prevent spite and malice being exercised; have heard of large sums having been paid to prevent persons from bidding; strange things have taken place there; as long as there is a bid I must take it; I do not know any way that the policy of Government could be defeated more than by such private sales.

By Mr. Stephen - I recollect a blind man being run up to 16s. per acre; there have been instances where there have been improvements on the land, that it has been had at the upset price.

By the Court - I hold it my duty to obtain a fair market price for the land; the object of a sale by auction is to obtain an increased price.

Captain Perry, Deputy Surveyor-General - I am aware it was the custom to advertise the names of applicants until within the last six months; I had official knowledge that certain frauds were practised, and tricks played, and I suggested to the Government the propriety of leaving out the names, in order that the land might come fairly into the market.

By Mr. Windeyer - This suggestion was carried into effect before Mr. Riddell acted as Collector of Internal Revenue; one of the objects was to prevent persons who already had land, and put up adjoining allotments, from being run up, because their name was to the application; I recommended, in 1831, that the applicant's name should not be published; Mr. Porter, to my knowledge, made two applications for land; one for land at the Upper Hunter, and one at Port Macquarie; part of the land for which he applied was reserved; one of the sections for which Mr. Porter applied was reserved, because there was marble on it; Mr. Porter was at some expense in looking at the land, and I look on that as an indication of a bona fide intention to purchase; persons are in the habit of employing other persons to bid for them; five shillings is the minimum price of land; it depends on the way it is selected, whether land on the Bulgoa Road is worth five shillings per acre; there are thousands of acres that would not feed a goat; I conceive the land is not worth less than five shillings per acre; as Surveyor-General I think all the land in the Colony is worth five shillings an acre; some land that is now selling at £20 per acre was once marked at 3s 6d.

By Mr. Stephen - The intrinsic value of land without adventitious circumstances is matter of opinion; I know there was a reference made home about a sale of land, where the Chief Justice and Colonel Dumaresq opposed each other; the land was afterwards divided between them at five shillings per acre; the object of the Government is to get as much for the land as they can; as much as it will fetch in the market is its full value; because two people run each other up, whatever they bid is the value of the land to them; I know of no bond between the Chief Justice Forbes and Colonel Dumaresq to divide the land between them at the upset price.

Re-examined - The effect of the tricks and compromises I alluded to, tended to defraud the Government; an agreement between a number of parties not to oppose each other must injure the revenue; I never knew Mr. Porter to buy any land.

Hamilton Collins Sempill, Esq. - I have property at Hunter's River; I recollect the December land sale; there was land near my property put up to be sold by Mr. White, Mr. Goggs, and Mr. Porter; I wished to get some of it, and intended to bid for it, if it did not go too high; I attended the sale; the first lot was put up and knocked down before I was aware of it; I said "stop," when Mr. Hughes said they had entered into some sort of an arrangement not to oppose each other, and take the money out of each other's pocket; they said as the land was knocked down, it could not be put up again, but as the book was not signed the bid was not complete; I said, "if you have made any arrangement, make me a party, and I do not wish to oppose it"; Mr. Hughes and Mr. Eales said they would, and I considered myself a party to it, and withdrew my objection and refrained from bidding; the lands were knocked down to Mr. Eales; I did not bid because I was a party with the other gentlemen; I understood there was some arrangement that the land should be purchased at the minimum price and divided amongst us afterwards; the object was to save our own pockets; we never thought about the Government; the amount I should have gone to would have depended on the nature of the opposition, and from whom I received it; Mr. Hughes spoke to me and Mr. Eales; I do not recollect any particular part Mr. Porter took; the parties were Messrs. Goggs, White, M'Intyre, Porter and Hughes, and if I chose to become a party they said I might, and I said I would; all the lands were knocked down to Mr. Eales without opposition; we arranged to meet at the Royal Hotel, and dispose of the lands amongst ourselves; whatever price the land fetched, above the five shillings per acre, was to be divided amongst the whole party; it was requested by the others that Eales should purchase the land as agent for the company; we met on the afternoon of the same day; Messrs. White, Goggs, Eales, Porter, and M'Intyre were present; there were also Messrs. Ryder, Hosking, Reid, Vauser, and other spectators; there were certain ill feelings supposed to exist between Mr. M'Intyre and myself, and some one proposed that the backs of the purchasers should be turned to the table, and a move of the finger taken for a bid of three-pence, and as no one knew who was bidding the opposition which might otherwise present itself would not take place; I believe Mr. Eales was the person to take down the biddings; other gentlemen took notes; I think Mr. Reid and Mr. Vauser did; Mr. Eales took an active part as auctioneer, I have no doubt about it; Mr. Eales declared the biddings for the party; I bought nearly eight thousand acres, at various prices; the average was 9s. 6d.; the total amount of the spoil, the profit on the re-sale, was about £550 each for the six of us; the highest bidding was 15s. 6d. per acre; the prices were 14s., 13s., 11s., 9s. 9d., 9s., 8s. 9d., 8s. 3d., 7s. 9d., 7s. 3d., 6s. 6d, and 6s. 3d. per acre; the average of 9s. 6d , which I gave, was independent of the £550; the parties met next day at the Hotel; I do not think Mr. M'Intyre was present; the evening of the sale I dined at Mr. Ryder's, where I met Mr. Wentworth, and as there was no secret in the matter it became a topic of conversation, and he gave his opinion that if I paid for these lands I should never get a title for them, as it was a conspiracy, and he had little doubt we should all get put in the pillory and fined; that made me look about a little; next morning early, I drew out a short case stating the circumstances, with an intention of submitting it to Mr. Plunkett for his opinion; previous to taking it I shewed it at the Royal Hotel to some gentlemen, I think to Mr. Reid; I went to Mr. Plunkett's but he was from home; I then called on Mr. Macpherson to know if in his opinion there was anything fraudulent, Mr. Macpherson did not see anything in it, but advised me to take counsel's opinion; I felt rather satisfied with Mr. Macpherson's opinion; I came back, and several of the gentlemen thought Mr. Wentworth was hoaxing me, as they did not feel it was a fraud any more than I did; I felt so easy about it that I consented to the payment, and paid by bills on Aspinall's house at two months; Mr. Goggs got a bill for £350, Mr. White for £280, Mr. Porter for £550, Mr. Hughes for £550, and Mr. M'Intyre upward of £100; I gave the bills to them severally, with the exception of Mr. M'Intyre, who was not present; one of those bills Mr. M'Intyre has been paid I understand; Mr. Porter purchased no land at the Hotel, nor did Mr. Hughes, - all the others did; Mr. Eales never intended to buy any; he was not a party to the arrangement; he was an instrument to the arrangement, and knew that the profit was to be divided amongst us; he had no profit; I applied for the lands at the Internal Revenue Office; when I gave the bills I got a letter from Mr. Eales requesting that the quantity of land I had purchased might be transferred from his name to mine, but Mr Macpherson would not receive it; I said he had received Mr. Goggs', but he said the Governor had heard of it since, and Mr. Fisher has been with an order to cancel the sale, and "you are all to be prosecuted for the conspiracy"; each party gave a certain sum as deposit in the market place; we gave £70 each; it was not offered to be refunded to me.

Cross-examined by Mr. Stephen - I think it was Mr. Hughes who spoke to me; I think he said an arrangement had been made to prevent gentlemen from taking money out of each other's pockets; had any one else stepped in Mr. Eales would have gone far above the five shillings per acre; we adopted no measure to prevent any other persons bidding; I understand that if the land had been run up by any other party we should have divided that also; Mr. Eales was to divide the land amongst us; the idea of selling it that way was suggested at the Royal Hotel; it was at one time suggested that each lot should be tendered for in writing; I would not have allowed any person to pick out the best lots, and so I thought this was the best way of settling it; it was about ten o'clock when Mr. Wentworth gave his opinion; after dinner.

By Mr. Foster - This mode of disposing of the land was suggested at the Royal Hotel, from the supposed hostility between Mr. M'Intyre and myself; Mr. Hughes wanted the land near Waverly; our first arrangement was that the land was to be sold amongst us, but the mode was not determined on until we got to the Hotel; I wanted land; the land was put up by three gentlemen; there were six bidders; Mr. Porter bought one thousand ewes and lambs of me for £2,500; which he left with me because he could at 9s 6d, 8d 3d, 7s 6d, 11s 6d, 6s 6d, and 6s 3d per acre; I recollect Mr. Porter complaining about not getting land; Mr. Ryder attended the Hotel with me the day after the sale in the market; Mr Ryder attended as my friend; he was acquainted with all the circumstances of the case; Mr Wentworth gave me the opinion after dinner; Mr Macpherson did not say at once that it was a conspiracy; as a Magistrate of the Territory had I imagined it had been a conspiracy I should not have entered into it.

Thomas Potter Macqueen, Esq. - Land adjoining my run was put up at the December sale; I authorised my agents, Messrs Hughes and Co, to bid for it; I requested him to be guided by the opinion of Mr M'Intyre; the land that was not valuable to me was put up by Mr White; I put no limitation on Mr M'Intyre; had he thought it adviseable [sic] to go to £20 per acre, I should have thought myself bound; I do not think I had any conversation with Mr Hughes; Mr M'Intyre said the land went higher than I should have given for it; I understood that had Mr Sempill been in the market the land would have gone cheaper; I was disgusted with the whole affair, and avowed it.

Cross-examined by Mr Stephen - I left it entirely to Mr M'Intyre; I always understood this land was essential to my estate; when Waverly belonged to me it would have been more valuable to me; Mr M'Intyre always told me he wanted to purchase some of the land; his sheep were increasing.

Mr Richard Roberts - I attended the land sale on the 14th December; I had intended to purchase some of the land, but at the request of Mr Macqueen, or his agent, I did not bid; the land was knocked down to Mr Eales; I should have given more than five shillings for some of the land; I had a conversation with Mr Hughes a few minutes before the lots were put up; Mr Hughes asked me if I intended to bid; I think I said I thought I would, and he asked me if I had not pledged my word to Mr Macqueen not to bid; I said I had told Mr Macqueen if he wished to have the land I would not bid for it; Mr Hughes said he was agent for Mr Macqueen, and was about to buy for him: I said "if that is the case I will not bid"; I further said there were other persons present who were likely to bid for it; I am satisfied Mr Hughes misled me; they gave me no share in the spoil; I am not honest for them.

Cross-examined by Mr Windeyer - Mr Porter asked me if I was going to bid for the land, and I said no; I advised Mr Porter not to bid for the land unless he wanted it, and he afterwards told me that he would not bid, I believe he was present when the land was bought, I thought Eales had purchased the land for Mr Hughes, as Mr Macqueen's agent; I put up a quantity of land as agent for Mr John Hillas; I bought it for him; I did not forfeit the deposit.

Mr W. R. Davidson - I am an assistant Surveyor; these are maps of the land sold on the 14th December; Mr Eales purchased all these lands on which his name is written; they are in the district of Upper Hunter's River.

The regulations for the sale of land were now read, and the case for the Crown was closed.

Messrs. Sydney Stephen and Foster severally addressed the Court for the defendants; contending that they did no more than was perfectly justifiable, and that instead of being a conspiracy it was nothing more than was constantly done.

In summing up His Honor said that if the Jury were satisfied that the prisoners had conspired together for the purpose of defrauding the Government, or preventing them from obtaining a fair and marketable price for their land, they were bound to return a verdict of Guilty.[ 2]

The Jury were absent upwards of an hour and returned a verdict of Guilty, but recommended the defendants to the lenient consideration of the Court, as there was no evidence of their having had any criminal intention.

The Attorney-General said that it was the custom in England when the Attorney-General had filed an ex officio information, to allow the defendants to go at large on entering into security to come up for judgment; and as the defendants were all men who had a large stake in the Colony, he had no objection to follow the same course, if they would enter into their own recognizance in £1,000 each, to appear on the first day of Term to receive the judgment of the Court.  The defendants entered into the requisite bond and were discharged.

The trial was not concluded until ten o'clock at night, and excited great interest, the Court being crowded the whole day.

 

Dowling A.C.J., and Burton and Kinchela JJ, 20 May 1837

Source: Australian, 23 May 1837[3 ]

 

The King v. John Terry Hughes, and others. - Mr. Sydney Stephen moved that the verdict as entered be amended to the verdict as returned by the Jury, or that a verdict of acquittal be entered, such being the meaning of the Jury who tried the case, as he was prepared to show by the affidavit of Mr. P. Haydon, the Foreman.  Mr. Stephen also maintained that the verdict was not legally recorded, inasmuch as it was taken from the Jury by the Crown Solicitor instead of by the Clerk of Arraigns.  His Honor Mr. Burton enquired if the verdict was recorded, and if the defendants had entered into recognizances to appear for judgment, and being answered in the affirmative, said that the time for making objections had passed, it should have been done at the time by moving the Court that a verdict of Not Guilty be entered.

Mr. Foster and Mr. Windeyer followed on the same side.  They contended that the verdict (if taken as it was intended by the Jury it should have been) would be - Guilty of conspiring to refrain from bidding, without any guilty intent; and that as the guilty intent alone was the offence with which they were charged, such verdict was tanatamount to an acquittal, which ought therefore to have been entered as the finding of the Jury.

The Attorney General replied, and submitted to the Court that the rider which the defendants relied upon as part of the verdict was, in point of fact, a thing wholly separate therefrom, and had reference solely to the degree of punishment which the Court might award, in the same way that a prisoner convicted of felony may be recommended by the Jury to some lenient punishment on account of previous good character, or any other circumstance that may have come under their observation.

His Honor the Acting Chief Justice made some remarks to his Brother Judges as to the circumstances attending the returning of the verdict in question; the Foreman had distinctly pronounced each of the defendants to be guilty, and afterwards read what he took to be intended as a recommendation to the lenient consideration of the Court.

His Honor Mr. Burton said that he was decidedly of opinion that the recommendation formed no part of the verdict; but even if it did, it could not help the defendants in this motion.  If the Jury were of the opinion they expressed, they ought to have turned a verdict of not guilty.

 

Dowling A.C.J., and Burton and Kinchela JJ, 1 and 2 June 1837

Source: Sydney Herald, 5 June, 1837[ 4]

 

The King against Hughes and others for conspiracy. - In this case the defendants had been convicted and given notice of moving for a new trial.  His Honor, the Acting Chief Justice, who tried the case, read his notes of the trial, when, as the Council was waiting for him and the Attorney General, the argument was postponed to Friday...

Friday, June 2. - In Banco. Before the three Judges.

The King v. Hughes and others. - The defendants having been called, and appearing on the floor of the Court, the motion for a new trial was proceeded with.

Mr. Sydney Stephen contended that the whole of the evidence adduced at the trial went to show that the object of the parties was not to prevent fair competition and defraud the Crown, but only to appoint a trustee to buy land for themselves as a company, which they were afterwards to divide, and that it was not illegal for parties wanting land to employ persons to buy it for them, and afterwards divide it.  The second ground relied on by the learned gentleman was, that as the jury had returned a verdict of Guilty, but recommended the defendants to mercy on the ground of there being no no [sic] evidence of any guilty intention, the verdict was in reality a verdict of Not Guilty; but that as the jury could not be got together to ascertain what they really meant, there must be a new trial.

Mr. Foster followed on the same side.  He contended, that if the Court had the slightest doubt as to the intention of the jury, or thought that they had not considered any material fact, they were bound to give the defendants the benefit of the doubt: and also, that the learned Judge who tried the case, misdirected the jury in stating that, if the jury believed the evidence, a base conspiracy had been proved.

Mr. Windeyer followed on the same side, and quoted several cases in support of the positions of Messrs. Stephen and Foster.

The Attorney-General opposed the motion.  He contended that the Court was bound by the verdict that was recorded, said that they could only look on the rider as a recommendation to mercy; and that the verdict of the jury was quite justified by the evidence.

Mr. Kerr followed the Attorney-General.

Mr. S. Stephen replied, and Mr. Foster was about to follow him, when he was stopped by the Court.

The Acting Chief Justice said, that upon full consideration, the Court did not consider that the intention of the jury was sufficiently defined by their verdict to authorise them to pronounce a judgment in a case of such deep public importance, and, therefore, there must be a new trial.

 

Dowling A.C.J. and Burton J., 3 August 1837

Source: Australian, 8 August 1837[5 ]

 

THURSDAY. - Before the Acting Chief-Justice and Mr Justice Burton, and the following Special Jury, viz. - Messrs Lockyer (Foreman), Foss, Moffatt, McDougall, McLeod, Moncur, Phelps, Manton, McGaa, Mackay, Palmer, and Moore.

Rex v. Hughes and others. - This was an ex officio information, filed by His Majesty's Attorney-General against the defendants - John Terry Hughes, Peter McIntyre, George Porter, and John Eales, for a malicious conspiracy.  The first count charged the defendants with combining and confederating together for the purpose of preventing a fair and open competition at a public sale of Crown lands in the public market-place of Sydney, on the 14th day of December last, thereby intending to injure the said auction and defraud the revenue of His Majesty the King.  The first count contained several overt acts, setting forth particular acts of conspiracy on the part of several of the defendants.  The second count omitted the former overt acts, and alleged that a certain public auction was held at the time and place before-mentioned, of certain waste and unlocated Crown lands, which were of greater value than five shilling per acre, the minimum rate of sale of them affixed by the Government.  That the defendants, well knowing the premises, combined to procure the said lands to be sold at five shillings per acre, thereby intending to defraud the revenue of His Majesty the King, and in contempt of his laws.  The defendants severally pleaded Not Guilty.

Counsel for the Crown, the Attorney-General and Mr Carter; Attorney, the Crown Solicitor.  Counsel for the defendants, Hughes, Porter, and Eales, Messrs Foster and Windeyer; for the defendant, McIntyre, Mr. Sydney Stephen; Attorneys, Messrs Unwin and Want for the defendant, Hughes; Mr Norton, for the defendants, Porter and Eales; and Mr Nicol Allan for the defendant, McIntyre.

Mr. Carter having opened the pleadings, the Attorney-General proceeded to address the Jury on behalf of the Crown.  He said it was a matter of notoriety that frauds at the land sales of the colony were constantly committed; and conspiracies entered into at them, by persons filling a considerable station in society, to the injury of bona fide bidders.  It was a branch of fraud well known to exist, but from the manner in which it was usually conducted, it could not be made the subject of public prosecution.  It was no uncommon circumstance when any intended purchaser put up a section or more of land for public sale near his own land, that some of the land sharks who haunt such sales, would say to the applicant, ``I intend to bid against you," and then obtain a bonus from the applicant to purchase the silence of the land-shark at the time of sale.  It was not, however, until the circumstances which transpired in this case came to the knowledge of the proper authorities, that the system could be made the subject of a public prosecution.  The learned gentleman then detailed the circumstances of the case, as he stated he was prepared to offer to the Jury in evidence.  The Attorney-General alluded to the former case upon which the defendants had been tried and convicted, but upon which they had subsequently obtained a new trial, which was the issue the Jury had to try that day.  If he had not preferred that information, he would have been guilty of a great dereliction of his public duty.  But he never made any secret of his object on any point of his duty, and in this instance he had publicly avowed it.  His object was to put down the system of illegal land sales - such as the defendants were now charged with having effected - and he was happy to say that the opinion he had formed as to their illegality had been corroborated by the verdict of a former Jury.  Two of the defendants on the former record had pleaded guilty to the information preferred against them, and thereby acknowledged their error - but the defendants in the present case had persisted in their legal act, and they still presented themselves as a band of conspirators linked together.  They were still pertinaciously adhering to their illegal bargain, and were actually contemplating putting the Crown to the expense of getting out of their hands, the lands of which they had so illegally possessed themselves.  The law officers of the Crown had hitherto not been able to fix parties in the situation of the defendants with legal proof of the guilt; but now that they were in a situation to do so, they brought the present case forward, fervently hoping the situation of the defendants might not only be the means of deterring them from such pursuits for the future, but hold them out as a timely warning to others.  On the defendants themselves the former warning had been thrown away; for, situated as they were in society, had they evinced any desire to retrace their steps, and desist from setting the laws at defiance, the present issue need not have been tried.  It was now therefore necessary to remind them of their situation, and bring them to their senses.  The Attorney-General concluded an eloquent address by observing, that on the former trial, the defendants had replied solely on the exertions of their respective counsel for their defence - in the present instance, however, he understood they intended to call witnesses in their own behalf.  What those witnesses were to prove he knew not; but of this he was sure, that they could neither alter the law nor the facts of the case.  However, by the other side calling them, he, the Attorney-General, should have another opportunity of again addressing the Jury, and he would not now, therefore, further detain them.  The witnesses, however, to be called on the part of the defendants, he, the Attorney-General, should have another opportunity of again addressing the Jury, and he would not now, therefore, further detain them.  The witnesses, however, to be called on the part of the defendants, he, the Attorney-General, would be glad of being produced - for if any link in the case for the Crown were wanting, the defendants would perhaps supply that link, and by their own witnesses convict themselves.  In either event, he confidently anticipated a verdict of Guilty.  The learned gentleman then called.

William Macpherson, Esq., who being sworn, said - In December last I was Collector of Internal Revenue; this is the Government Gazette of the 17th August, 1836; there is an advertisement in it of the 17th August for a sale of Crown Lands under the usual conditions; lots 90 to 95 in that advertisement were applied for by Matthew Goggs; lots 119 to 123 were applied for by George Porter; and lots 182 to 184 were applied for by James White the last mentioned lots are advertised in the Government Gazette of the 5th October; the sale of the whole of these lots took place on the 14th December; they are described as being in the County of Brisbane, in the district of Upper Hunter's River; I produce an abstract of the Government sale; the conditions of sale are entered in this book, and are imposed upon the authority of the Government, these are the particular conditions under which these lands were sold; they are the usual conditions of sale of waste lands, and were in force in December last; some little changes in them are occasionally made according to circumstances; they have been in force since the beginning of 1832; they were framed in consequence of the change in the sales of land which took place on the 1st July 1831; these are the conditions of the 14th December last; the conditions are always read before the sale takes place; these were read by Mr. James, the Government Auctioneer; they have been so frequently read, that almost every one concerned in land sales, know them by heart; the present sale took place in the market place at Sydney, in the building marked letter C; after reading the conditions of sale, the description of each lot is read as advertised, and it is then put up for sale; the advertisement specifies that the lands applied for are to be put up at 5s. per acre; the auctioneer always calls out the applicant's name before the commencement of the sale; I have no doubt that the name of Mr Goggs was called on this occasion; lot 90 was the first of these particular lands which were put up; whether the applicant answers to his name or not, the sale proceeds; land is always put up at the fixed price reserved by government; any person bidding that price or the highest after it, gets the land; if Mr Goggs or any other person had bid only 5s. per acre, he or they would get the land; no further advance is required; I saw Mr Sempill at the sale of the 14th December; at one of these particular lots, I cannot say which, he indicated an intention to bid; the sale was stopped for a short time; I desired Mr Jaques to stop the sale; I was induced to do so from seeing Mr Sempill bid, and knowing Mr Goggs and Mr White to be new purchasers, I did not wish them to be run up; I was desirous Mr Sempill should not oppose Mr Goggs, but that he should get the land at the minimum price; the Government does not want more than the minimum price, and that was the reason why I stopped the sale, in order to give the parties time to make their arrangements; I thought Mr Goggs or Mr White meant to say to Mr Sempill, ``do not run up the price;" there were a great many persons at the sale; I knew Mr Hughes, Mr. Eales, and Mr Ryder were at the sale; I do not recollect seeing Mr McIntyre there; I think Mr Porter attended at it; Mr. Sempill spoke to several persons near me; they were making such a noise, that I had to request their silence; after this short conversation between Mr Sempill and the several persons I allude to, the sale was renewed; the whole of these 14 lots were knocked down to Mr Eales during the day at various times, at 5s. per acre; a deposit of 10 per cent. on the price of the land was paid by Mr Eales; the total amount of the sale of the 14 lots was £3,072 5s. and the deposit paid was £307 4s. 6d.; Mr Eales, subsequent to the sale, gave notice that part of the lands were for Mr Goggs, and part for Mr White; this notice was given on the next day at my office; the sale took place on the Wednesday and on the Friday following, I heard that Mr Sempill had purchased some of these lots; on the Monday following, Mr Goggs paid the whole of his purchase money; it was received by my clerk in my absence, and then handed over to me; Mr Sempill called on me on the Friday or Saturday, and informed me of the sale at the Royal Hotel; I did nothing in the business until Monday; I did not take any more of the purchase money, in consequence of having heard from the Crown Solicitor, that directions had been received from the Government to prosecute the parties for a conspiracy; I gave directions to my clerk not to receive any more of the purchase money in my absence; I think Mr White came subsequently to the office, and tendered his purchase money, but I will not be positive.  (The Attorney-General here intimated that he purposed calling Mr Macpherson again, upon which the counsel for the defendants reserved their cross-examination of him.)

Mr William Jaque, being sworn, said - I am the Government Auctioneer, and was so in December last; I attended in that capacity at the sale of Government lands in the Sydney market-place, on the 14th December 1836; that Government sale took place under the regulations in the sale-book now produced; they were read on that day, previous to the sale; I read them; the sale was stopped at lots 90 to 95, for a few minutes; it took place in consequence of a bidding of some advance in the upset price; it was made by some person who I do not know; I did not know Mr Sempill at that time; some person said, ``stop, it's a mistake," and Mr Macpherson told me to stop the sale; I did so; after a few minutes I enquired whether I was to begin the sale de novo, at the upset price, and was told to do so; a bidding was ten made of 5s. per acre, and no advance being made upon it, it was accepted; at the close of the bidding I asked for the name of the purchaser, and was told it was John Eales and a person immediately stepped forward and signed the sale-book in that name; I have since seen that person, and have no doubt it is the defendant, John Eales; the same course was pursued on that occasion in lots 90 to 95, 119 to 123, and 182 to 184; all these lots were bought by Mr Eales at the minimum price of 5s. per acre; there was no bidding at any of them on the upset price; I saw Mr Hughes at the sale; I do not know either Mr. McIntyre or Mr Porter (The conditions of sale were then put in and read by the officer of the court).  The regulations just read were read by me prior to the sale of the 14th December.

Cross-examined - All Government lands are not put up at 5s. per acre, but they are put up at the prices stated in the advertisements; the prices vary, according to the locality, from 5s. to £1000 per acre; the sale was stopped in consequence of a conversation between several parties at the sale; I understood it was stopped in order to discuss the mistake about the advance offered; I know nothing of any arrangement between the parties; similar stoppages have occurred at former sales; a correction has since been made in the regulations, so far as not advertising the names of the applicants; it was reported to the Government that such a course was unfair; it was stated that the applicant being personally known, it might create an unfair competition against him at the time of sale; persons might be disposed to compete with the applicant, from a reliance on his judgment in selecting the lands, or they might take advantage of his necessity to have them; in all after sales to that of the 14th December, the name of the applicant has not been announced; in some measure this unfairness was remedied before the alteration, for many persons really wanting the lands they intended to purchase, got a friend to apply for them and to attend at the sale.

Hamilton Collins Sempill, Esq., being sworn said - I attended the land sale in the Sydney market place on the 14th December last, for the purpose of purchasing some of the lands advertised for sale; I mean a portion of those advertised for by Messrs. Porter, White, and Goggs; they were described as being situated in the district of Upper Hunter's River; I hold landed property in that district; when the first lot of the fourteen now described was put up, I was talking to some person outside of the table where Mr Macpherson sat; a person enquired what lot had been put up, and the number of it was told; I immediately advanced inside of the table, and said I intended to bid; Mr Hughes said that the lot already knocked down could not be put up again, as it had been already knocked down; I replied that as the sale book had not been signed by the purchaser, the auctioneer was bound to take my bidding; Mr Hughes then took me aside, and said that some other gentlemen and he had entered into an arrangement to prevent taking the money out of their own pockets; they intended to purchase the various lots advertised at the minimum price advertised, and that if I would withdraw my opposition, or intention to bid, I should be a party to that arrangement; I then withdrew my bidding, and the sale went on; the different lots I allude to were all knocked down to Mr Eales; Mr Hughes spoke to me; I have no distinct recollection that Mr Eales spoke to me upon the subject; I understood Mr Eales to be the person selected to bid; Mr Hughes mentioned the names of the parties with whom he had made the arrangement I speak of, but I cannot say whether it was within their hearing; I saw Mr Eales sign the sale-book; I remained at the sale until all lots were knocked down; Mr Eales was standing within hearing, when Mr Hughes spoke to me; I cannot say whether Mr Porter was also; I saw him about the sale that day; I do not think I spoke to him; the sale proceeded without any opposition, and all the lots set up by Messrs. Goggs, White, and Porter, were knocked down to Mr Eales, and I think I saw him sign the sale-book for the whole of them; the transaction occupied but a very short time; the lots once put up, were soon knocked down; I had a conversation with Messrs. Hughes, White, Goggs, Porter, Eales and McIntyre, at the Royal Hotel, on the same day at 4 o'clock in the afternoon; I got notice from one of the parties to attend there at that time, before I left the market place; we met for the purpose of dividing those lands bought by Eales; when we assembled, there was a difficulty started as to the mode by which they should be disposed of; Mr Hughes proposed that it should be done by tender; each party was to write on a small piece of paper, the price he would give for each lot; these small pieces of paper were to be folded up and thrown into a tumbler, and the person who made the highest tender for each lot was to be declared the purchaser of it; by this mode it was imagined no opposition could be made by one party to another; that plan was overruled; all the parties named, took a part in the conversation; it was at length proposed that each party should turn his back to the table, and that the moving a finger should be considered a bid of 3d. per acre; this plan was adopted; Mr Eales watched the biddings; all the fourteen lots were disposed of in that way: the profits arising from that sale over the minimum price of 5s per acre, at which they were purchased at the government sale, were to be equally divided between the parties; after the sale was over, there was a calculation made, and it was ascertained there was a profit arising to each individual of £550.  Mr. Eales was not a participator in the profits, but being disinterested, he was asked to become the general agent of the respective parties, and he did so.  (The witness now produced memoranda of the proceeds of the sale of the lots, as taken by Mr. Porter, immediately after the sale.)  I became a purchaser of 1248 acres at 7s 9d, per acre; of 738 at 8s 9d; of 640 at 6s 3d,; of 670 at 6s 6d,; of 1235 at 11s 6d,; of 848 at 13s,; of 1168 at 14s,; and of 1270 at 15s 6d.  Mr. Goggs bought 1066 acres at 8s 3d per acre, and 840 at 8s 9d.  Mr. Hughes and Mr. Porter bought none of the lots; the total amount of my purchase was £4,287 8s. from which I was to deduct £550, as my share of the profits; the balance arising from it, after deducting the minimum price of 5s, per acre, which I was to pay to the Government, I was to hand over to the gentlemen named; Mr. McIntyre bought 660 acres at 7s 3d per acre; 723 at 7s 9d; and 1183 at 9s 9d; after deducting his share of the profits, and the minimum price he had to pay to the government for his share of the land, I had to pay over to him upwards of £94, and the interest on a bill at two months, which I gave him for the amount, raised to £100.  To Messrs. Hughes and Porter, I gave bills for £550 each, being their respective share of the profits, adding interest for two months, and also the deposits they had paid through Mr. Eales at the Government sale; I likewise gave similar bills to Messrs. White and Goggs, none of which have been yet paid; Messrs. Hughes and White are now suing me upon the bills I so gave to them, and Mr. Porter is suing Messrs. Aspinall and Co. who being my agents, indorsed the whole of the bills at my request; it is only lately that these suits have been instituted; it was only this morning I received a summons from Carr and Rogers , on behalf of one of the parties, and the summonses from the other parties have been served through Mr Norton, and Mr Unwin about two months ago; Mr Wentworth said laughingly at the sale, that we should be all put in the pillory; this made no impression on me at the moment, as I thought he was joking; I dined that evening at Mr. Ryder's, and Mr Wentworth was also there; after dinner we entered into conversation upon the subject of the sale; the opinion that Mr. Wentworth then expressed, was afterwards the subject of conversation between myself and the other parties to the sale; I afterwards went to the residence of the Attorney General to consult with him upon the subject, but he was from home, and did not return to town for some days afterwards; I communicated with Mr McPherson respecting the sale before I passed my bills to the other parties; all the parties were present with the exception of Mr. McIntyre, and I think I gave my bill for the amount I was to give him, top Mr. Eales; before the bills were passed, what Mr. Wentworth had said to me was the subject of conversation between the whole of the parties at the Royal Hotel; when I spoke to Mr. McPherson upon the subject, he said he thought the case resembled what had been pursued at the sale of the Lumber-yard allotments; when I gave the bills I thought I was incurring no risk; the day after I had passed my bills, I attended at Mr. McPherson's office with a letter from Mr. Eales, stating, that he had acted as my agent for the purchase of all those lands I had bought at the Royal Hotel, and desiring that they might be transferred to me; Mr. McPherson said, ``I cannot receive this;" I replied, I was sorry I had not known that before; Mr. McPherson said that Mr. Fisher had brought him a message from the Governor that the sale was to be cancelled, and the parties prosecuted for a  conspiracy; I did not get the letter of transfer until I had passed my bills; I thought myself safe, for I knew that Mr. Goggs's letter of transfer had been received at Mr. McPherson's office on the day before; I did not know this had been done by mistake, nor that Mr. Goggs's purchase money had been received by mistake; if I had not entered into the arrangement with the parties, I would have given more than 5s. an acre for the lots that I bought at the Royal Hotel.

Cross-examined by Mr. Sydney Stephen for the defendant McIntyre. - I would not have bought all the lots; some of them I do not consider worth more than 5s. per acre; I do not feel any hostility towards Mr. McIntyre; there is an ill feeling on both sides; I never opposed him; I employed another; I heard nothing of this matter until Hughes spoke to me; I think I bid for the first lot; I cannot say that Porter or McIntyre were present at the sale; what Hughes and I said might have been heard by any one there; there was no whispering about it; I was as near to Mr. McPherson as I am to you; I think some one told me there was to be a Meeting at the Royal Hotel; we occupied the large room up stairs; it is a public room; there were several persons present; Ryder was there, and Reid, Vawser and Hosking; Ryder was perfectly acquainted, and his house also, with all the circumstances; Mr. Eales found a difficulty in dividing the land; I will swear that no attempt was made to divide the land; I would not have joined, if the land had been put up again publicly at auction.

Cross-examined by Mr. Foster for the defendants Eales and Porter. - There was a treaty between Hughes and Macqueen about the Waverly Estate; I would bid £6 or £7 an acre to prevent any one coming near me who had a hostility towards me; there was another plan proposed, but I don't recollect that Mr. Hughes proposed to draw cuts for the land; it did not occur in my hearing; no report was produced to me, or made by Hoddle as to the quality of the land; nor did I see it; Mr. Porter shewed it to me in confidence at his office after the sale; it is not to me that it was produced; I knew that the land pointed out by Hoddle was the best, and it was the most in request; the purchaser's name was declared after the sale of each lot; there were fourteen or fifteen; Mr. McIntyre would know whether I purchased or not; I bought the seven last lots; I bought either altogether; I know the land well;  It was the most important that having purchased the former, I should have the latter; Mr. McIntyre must have known I had made the previous purchases; it would have been better for me to pay a little more for them; Mr. McIntyre was hostile to me; I found out that Mr. McIntyre was bidding; I recollect there was a toss up about one of the lots; I will not swear Porter was present at the sale; I explained to Aspinall and Co., the arrangement; Ryder is a magistrate, and I am also one; if I had considered this a fraud, I would not have been a party to it; I went to Mr. McPherson to ascertain the question as to the fraud; I mentioned the circumstances to him; it was in consequence of his statement and my interview with him, that induced me to complete the transaction; the bills were negotiable; if I had thought there was any thing wrong, I would not have passed my bills; I had employed another person to bid for me to prevent Mr. McIntyre or any one else running me up; Mr. McPherson told me the parties woul [sic] be indicted for a conspiracy; His Majesty's Attorney General was away at the time; I had never known Mr. Porter before; Mr. Eales refused to take any money for his trouble; he spurned at the idea, when the balance over and above the £550 profit to each party, amounting to £30 or £40, was offered to him for his trouble.

William McPherson, Esq., on being recalled, said - this is the original Government Notice, and this is the Government Order under which Crown Lands were sold; the notice is dated the 1st July, 1834; the Order is dated 1st August, 1831; they are both printed and published by authority; by virtue of these authorities, Crown Lands are publicly advertised three months prior to the sale of them; the minimum price of 5s. per acre is also here fixed; (the Government notice and the Government order alluded to by the witness, were then put in and read by the officer of the court,) the regulations which have before been read from the sale-book, are the regulations under which these lands were sold; they were read before the sale; I recollect meeting Mr McIntyre in King street on the afternoon of the day of sale; we exchanged a few words in passing; I do not recollect the precise words; it was to the effect that he was going to have some of the land sold that day to Mr Eales; I was in a hurry and cannot say whether he mentioned any thing about an intended sale at the Royal Hotel; he was going towards George street, and I from it; this was between 3 and 4 o'clock; I saw Mr. Porter at t he bank between the day of sale and the following Monday; he asked my opinion about the sale at the Royal Hotel; I had no doubt he was interested in it; the subject of his conversation with me, was to endeavour to persuade me that the transaction was proper and quite fair; I had a conversation with Mr McIntyre which was to the same effect.

Thomas Potter Macqueen, Esq., being sworn, said - I authorised Mr. Hughes to bid on my account for the crown lands put up for sale in the market place on the 14th December last; they were situated near my own estate; there was a military reserve between them; I gave him no authority as to the exact amount he was to bid; I trusted entirely to Mr. McIntyre's selection of them, as he was well acquainted with their locality; I should have considered myself bound for the purchase of these lands, if £20 per acre had been bid for them; none of these lands were purchased for me; I had seen them advertised for sale in the Gazette, I did not know the lands myself, only from the map; I trusted entirely to Mr McIntyre as my agent, because he knew the lands perfectly well; Mr. Hughes did not fulfil the trust I reposed in him; I quitted Sydney six weeks before the sale; Mr Hughes and me were both of opinion that the lands would be valuable to me if purchased at a reasonable price; on my return to Segenhoe, I saw Mr. McIntyre, and we had some conversation respecting the value of the lots advertised; this was previous to the sale; one or two of the lots I understood from Mr McIntyre were worth 12s. per acre; the others were not so valuable; I saw Mr McIntyre subsequent to the sale, and his opinion was that the lands went at a higher rate, than he considered himself warranted in giving for me.

Cross-examined by Mr Sydney Stephen. - Mr McIntyre had some land in the neighbourhood of these allotments; I had no objection to his getting any of them; some of the lands were certainly very inferior.

Cross-examined by Mr Windeyer - I considered these lands only desirable to me, because they were situated near my Waverly property; there was a conditional sale of the Waverly property at that time to Messrs Hughes & Hosking; their purchase was redeemable by me; I gave no funds to Mr Hughes to bid for me; nor had Messrs Hughes and Hosking at that time paid for the Waverly estate.

Re-examined. - I have since heard that some of the lands were exceedingly good; those put up by Mr Porter were certainly inferior; Mr McIntyre told me that Mr Sempill had gone to the sale to oppose me; there was no conveyance to Messrs Hughes & Hosking of the Waverly property at the time of the sale of these lands.

Richard Roberts, Esq. being sworn, said - I am a retired merchant; in December last, I was a partner in the firm of Cooper, Holt, and Roberts; I was in the Sydney market-place at the sale of crown lands there on the 14th December; I had an intention to purchase prior to the sale; I mean a part of those lots put up by Messrs Goggs, White, and Porter; I wanted them for myself on my own private account; Mr Macqueen had a conversation with me respecting these lands some time prior to the sale; I also mentioned to him that I intended to purchase a portion of them; these lands were adjoining his own; he intimated to me that it was his intention to purchase some of the lands; I had also a conversation on the same subject with Dr Fowler, Mr Macqueen's superintendent at Maitland; when Mr Macqueen intimated his intention to purchase, I declined bidding for any of the lands on his account; I did not wish to become a bad neighbour of his; Mr Macqueen told me that Mr Hughes would attend the sale as his agent; when the sale took place, Mr Hughes asked me, in an under tone, whether I intended to buy; I believe I told him at first that I had such an intention; he replied, ``have you not promised Mr Macqueen that you would not bid?"  I replied, I had; he then said he was going to buy the lands for Mr Macqueen; he was about going away from me, when I said, you are aware that there are some other parties going to bid for these lands; Mr Hughes replied he was aware of it, but he had made it all right with them; Mr Hughes did not mention their names to me; I saw Mr Porter at the sale and spoke to him; he asked me if I intended to buy; I told him I did not, for that I had relinquished my intention in favor of Mr Macqueen; I said to him, if you do not want these lands, you had better not bid for them; I said there are several rich settlers in that neighbourhood, and they may afford you annoyance as a new comer; you had better take my advice, and not get into a nest of hornets; Mr Porter subsequently came to me, and said he would take my advice; I had seen Mr McIntyre shortly before at one of Mr Macqueen's stations; all the lots were knocked down to Mr Eales; I thought Mr Eales acted for Messrs Hughes and Hosking, as the agents of Mr Macqueen; I should have certainly bid for the lands if I had not thought they were purchased for Mr Macqueen; I would probably have gone as far as from 12s. to 15s. per acre for some of the lands; on the next day I heard it rumoured that the lands had not been purchased for Mr Macqueen; on the very day of sale I was at the Royal Hotel, and Mr Spark the proprietor told me there were several gentlemen up stairs holding a land sale; I was not then aware of the nature of that sale; I met Mr Hughes a day or two afterwards opposite to the Royal Hotel, and I spoke to him; I asked him whether he intended to credit Mr Macqueen with the amount which he had received on the division of the profits arising out of the sale; I told him I considered it very unfair if he did not do so, I must consider he had practiced a deception on me as well as on Mr Macqueen; Mr Hughes laughed at me, and walked off.  (The counsel for the defendants here objected to the matter marked in italics being received in evidence.  The court expressed it's surprise that it had not been objected to before.  Their Honors considered it irrelevant to the matter at issue, and expunged it from their minutes of evidence.)

Cross-examined by Mr Sydney Stephen. - I had no land near these lands; I have not an acre in the district of Hunter's River; I had an opportunity of seeing these lands; I will not say which of them I consider the most valuable, because they may be sold again, and I may be inclined to become a purchaser.

Mr Foster now rose to cross-examine the witness, and said he insisted on an answer to the last question put by Mr Stephen.  Witness expressed his readiness to answer it, if the court thought he was bound to do so.  Their Honors were of opinion that the question must and answered.

Cross-examined by Mr Foster. - I consider the land put up by Mr White as the most valuable part of the lots; I rode over the lands in July or August last; I mean the part near a place called Timor; it was fine forest land; I did not examine the nature of the soil; I have speculated in land as well as merchandise; I should have thought that a good speculation; I have neither land nor cattle in the district of Hunter's River; I remember Mr Hillas putting up some land near to that of Messrs McArthur and McAlister; they were obliged to purchase that land; in consequence of their bidding on that occasion I put up a large portion in the same neighbourhood; I think Mr Hillas is a man of large property; the amount of what I put up would have come to about £7,500; I think Mr. Hillas bought 8 or 9 sections of that land, but I will not swear to the exact number; I did for him as his agent; I cannot state the exact quantity without referring to my books, and I do not carry my ledger in my pocket; this land was not put up out of malice towards Messrs McArthur and McAlister; I have no sheep in that part of the country; Mr Hillas gave me instructions to put up all that I did put up; previous to that, I had advised him to do so; Mr Hillas was prepared to pay for the land; I was only once up as far as Timor; I was about four days in the neighbourhood; I have myself a very considerable property, but none of it is situated at Hunter's River.

Samuel Augustus Perry, Esq. being sworn, said, I am Deputy Surveyor-General of the Colony; I know the reason why the names of applicants to purchase Crown lands have been omitted to be published; I recommended the measure; it was done to draw the attention of the public to the land itself rather than to the applicant; I had before found some inconvenience from parties applying for lands in fictitious names; I thought that the omission of the name would tend to bring lands in a fairer way before the public; the old system interfered with the object of bonâ fide purchasers.

Cross-examined by Mr Windeyer. - Mr Porter has applied for other lands besides those which are the subject of the present prosecution, and I know that he has been at considerable expense in their selection; I had no doubt that he was an intended bonâ fide purchaser; he applied for the purchase of some lands at Port Macquarie, but they were not allowed to be sold in consequence of their contiguity to a marble quarry; I pointed out to him their situation from the maps, because I conceive it to be the duty of every government officer in the surveyor General's department, to afford every necessary information to an applicant for purchase.

Mr Walter R. Davidson being sworn, said - I am a clerk in the Surveyor General's office; I produce maps made up from the general chart of the lands which were applied for by Messrs Goggs, Porter and White, and advertised for sale on the 14th December last; these lands are the same as appear to have been sold to Mr Eales.

This closed the case on the part of the crown.

Messrs Sydney Stephen and Foster then respectively addressed the jury on the part of the defendants.  The gist of the arguments of the learned gentlemen (of whose speeches we regret that our limits will not enable us to present even a brief outline,) was to the following effect: -- That the act of the official agent of the government, Mr. Macpherson, in endeavouring to prevent public competition in favor of a new comer, was calculated to induce the defendants to believe that the government did not wish to run up the price of crown lands, but that they were contented with the upset price for them.  This had been the true cause of leading the defendants into error, if error it really were; and they could not therefore be said to have wilfully defrauded His Majesty's revenue.  The present defendants, it would be proved in evidence, all wanted portions of these lands; and feeling it likely they might be induced to run one another up to ruinous prices, in order to obtain them, it was suggested to them by one of the parties, and at length agreed to, that the lands should be, in the first instance, purchased at the minimum price, and then divided among themselves.  When, however, the parties assembled to do this, it was found impossible to divide the lands satisfactorily in any other mode than the one adopted.  All wanted to choose the good land, and none would take the bad.  The difference of the quality in these lands would be best estimated by the fact which had already been established in evidence; that the value at which they were ultimately fixed varied from 6s 6d to 15s 6d per acre.  The defendants would prove that it had been first proposed they should draw cuts for the land - and that several other modes of division of them had been discussed, before that plan was carried which was ultimately adopted.

The following witnesses were called on the part of the defendants.

M r John Alexander Burnett, being sworn, said - I am a clerk to Messrs Thomas Gore and Co., who are agents to Mr McIntyre; I produce the check book of the firm; on the 14th December last, Mr Gore sent a check for £1000 to the Sydney market-place before the land sale took place; it was sent through Mr Edwin Park; Mr McIntyre was to have £500 of this, and Mr Park the other £500 of this, and Mr Park the other £500; it is so charged in our books; Mr McIntyre is charged with the half payment, and Mr Park with the other.

Cross-examined - Mr Park was going to buy land; the check was paid at the Bank of New South Wales to Mr Park; the application of the money shews that Mr McIntyre was to have £500, and Mr. Park £500.

Re-examined - Mr Gore sent the check to Mr Park for the purpose of buying land; there was no name in the check; it was made payable to bearer.

William James Read, Esq., being sworn, said - I know all the defendants; I recollect the sale of the 14th December last; I know the lands at Timor; I was going about the sale during the course of the day; I went about to ascertain who intended to buy land, and to find out whether any opposition was intended by the parties towards each other; I conversed with all of the parties; I felt a general interest that the parties put up lands; Mr Eales was to buy the lands for them; as far as I saw, they applied to Mr Eales as a disinterested party; this seemed to be the general wish of the parties; I cannot say who it was that first asked Mr Eales; he had no particular interest in the business; I know all the parties; Mr White was one, Mr Eales purchased the lands; they requested him to do so for the parties concerned - Messrs Hughes, McIntyre, Porter, White, and Goggs; when purchased, it was to be divided among themselves; the parties seemed to be talking together all the day during the sale; almost immediately before the lands were put up, Mr Sempill came forward; it was generally believed that he and Mr McIntyre would oppose each other; both wanted the lands, and not being good friends, it was thought they would go to a higher rate than otherwise; I attended the sale at the Royal Hotel; when I first went into the room, I discovered that Mr McIntyre was not present, and I went to look for him; I found him, and returned with him to the sale; a great discussion then took place how the lands were to be divided; all the parties were present; I saw a chart of the land which was got from Mr McIntyre; it was upon the table for inspection; on my return with Mr McIntyre.  Mr Hughes proposed to divide the lands by tender; that was objected to; I cannot say by whom; I objected to it myself; it was then proposed to sell the lands by auction, and after a deal of discussion, this was adopted; it took place on the same day as the government sale; Mr Ryder proposed that the parties should face to the wall with their hands behind their backs, to prevent Messrs Sempill and McIntyre from opposing each other; Mr McIntyre objected to this; I persuaded him to agree, and coincide with the majority, or it would be thought he wished to display a vindictive feeling towards Mr Sempill; he then agreed to the arrangement; I had no interest in the matter; I resided at the Hotel; the sale took place in the public coffee room; after Mr Macpherson had stopped the auction, he said ``gentlemen, have you made your arrangement;" there had been a bid made by Mr Sempill of 5s 3d or 5s 6d; afterwards the parties did not oppose each other, as I understood; the auction went on, and the lands were knocked down to Mr Eales at 5s per acre; I have seen Mr Macpherson pursue similar conduct at previous sales; (the last question was objected to by the Attorney-General, and after argument on both sides, the court ruled that the question was improper.  The defendants must confine themselves to what took place at the particular sale mentioned in the information;) there was no more done than just stopping the auction, and asking whether the parties had made their arrangements.

Cross-examined. - I busied myself in the matter for the sake of peace and quietness; it was to prevent two men going to loggerheads; I mean Messrs. Sempill and Mr McIntyre; I could not avoid hearing what passed; I have known Messrs. McIntyre and Eales for several years, and Mr Sempill ever since he has been in the colony; the sale commenced at 11 o'clock, and the land was all bought between 2 and 3; the parties formed the negociation after the sale had commenced, and it was brought to maturity just before the lands were bought; it was Messrs. McIntyre, Hughes, Porter, Goggs and White, who induced Mr Eales to buy these lands in the Sydney market place; the sale was going on from 11 till after 2 o'clock; the arrangement was completed before Mr. Sempill applied to bid; Mr Eales was authorised to buy the lands at any price, and they were to be afterwards divided; I cannot say how they were to be divided the way adopted, was the only way calculated to satisfy all the parties; I saw Mr Wentworth at the sale; I had only seen Mr Porter once before; I knew Mr Hughes before; Mr Hughes said he had authority to buy for Mr Macqueen; I believe he had no money of Mr Macqueen's; I have heard Mr Hughes speak of it repeatedly; not at the time of auction, but since; he said he had received a letter from Mr Macqueen to purchase the lands in question for him; Mr McIntyre said nothing about Mr Macqueen having confided to his judgment; the transaction was known publicly the day after the bills were passed; I was present at the finger sale; all the parties bidded; there were Messrs. Ryder, Vawser, Eales, Hosking and I, who watched for the wag of the finger; Mr Hosking sat aside, he being considered an interested party; if the lands had been for Mr Macqueen, there could have been no objection to him as Mr. Hughes's partner; I left before all the bidding were finished; it began about 4 o'clock; Messrs. Eales, Hughes, Sempill, Porter, White and Goggs went direct from the market place to the Royal Hotel; the parties gave Mr Eales checks for their equal shares of the amount of the deposit money he had paid.

Re-examined. - The deposit was paid all at once; checks were given to the clerk; each party gave his check to Mr Eales; all the parties moved their fingers; it was not Mr Hughes's fault, that land was not knocked down to him; Mr. Porter bid, and seemed annoyed he did not get any of the land; I do not know the exact time that Mr Eales was appointed agent.

Mr. Thomas Vawser being sworn, said I remember the sale of the 14th December; I attended at it; I was invited to go there by Mr Goggs; the arrangement was made in the public market place previous to the sale; the parties were some time in consultation, and it ended in their applying to Mr Eales to act as their agent in purchasing the lands; there were five parties in the first instance; they were Messrs. Hughes, McIntyre, Goggs, White, and Porter; the second consideration was, how the land was to be disposed of; it was not agreed to at that time; Mr Eales said they had better select what allotments they each wanted, and divide them in that way; I went to the Royal Hotel at 4 o'clock; all the gentlemen who wanted land were present, as well as Messrs. Ryder, Hosking, Read, Eales, and myself; there were four propositions made as to the disposing of the lands; one was that each should take the allotments he wanted; this could not be done, because each wanted the best land; the second proposal was for written tendering in a glass, and the third was for publicly bidding at the table; neither of these plans was agreed to; the fourth was the proposal carried into effect; I think Mr Ryder said he had heard of such a plan before; there were three for bidding publicly, and three for written tendering in the glass; Mr Sempill was present, and was against bidding publicly; he was for the finger plan; all heard the other plans proposed, and expressed either their assent or dissent; I did not see any ground plan produced; the mode adopted was decided by three disinterested parties, Mr Read, Mr Eales, and myself; Mr Ryder was considered an interested person; during the sale, one or two persons opened the door, but seeing what was going on, they immediately retired.

Cross-examined. - The discussion was about the manner of disposing of the lands; three were for the finger plan, and three for bidding publicly; I understood it was Mr Eales who suggested the first plan; that seemed to be entirely out of the question; there was no land put up in the name of Mr McIntyre; Mr Goggs asked me to bid for him, he expecting opposition from Messrs. Porter and McIntyre; I did not stay close by Mr. Macpherson; before the first lot was put up, it was arranged that Mr Eales should be the purchaser, and that after the sale, the parties should meet at the Royal Hotel; at that time Mr Sempill did not know of the transaction.

Re-examined. - Mr. Sempill put up none of the lands.

Mr Thomas Stubbs being sworn, said, I have been in the habit of attending at Government land sales.

(The Attorney-General again objected to evidence being offered as to any other sale than the precise one contained in  the information.  Mr Foster on the other hand, urged upon the Court, that the previous acts of the Government Agent tending  mislead the public, and to induce a belief that the Government only wanted the upset price of the lands, ought to be admitted as evidence; otherwise his clients were without a defence.  The defendants might have gone under a  particular impression, that they had acquired a right to act as they did, in consequence of what the Government Agent had done.  They were not lawyers, and were not therefore to be treated as if they had been such.  The Court again confirmed the Attorney-General's objection.)

This closed the case on the part of the defendants.

The Attorney-General replied.  He said that the trial having already lasted for such a very long time as twelve hours, during which the jury had had an opportunity of hearing the whole of the facts of the case, as they had been developed in evidence, he should detain them as short a time as possible.  He could almost trust the case as it now stood to the intelligence of the jury; but he would nevertheless speak a few words upon the evidence which had been offered on behalf of the defendants; and he would say that that evidence fully corroborated the case against them, and made up for every possible deficiency which before existed in it.  Instead of answering the case, it was in point of fact, complete corroboration of it.  Mr. Foster with his usual ingenuity had endeavoured to confound the case, and to draw a distinction between government auctions and private sales; but he would contend that the principal in both was alike.  He would at once admit that it was not the intention of the Government to screw up the prices of Crown lands; and that if they yielded only the minimum value of 5s. per acre, by fair and open competition in the market, the Government was content.  Under the system which had, however, been exposed that day, it was not the Government that would suffer, so much as the bona fide purchaser; for what chance had any individual against such a monopoly?  What chance would Major Lockyer, or Captain Moffatt themselves have against such a knot of conspirators; who were determined to outbid every private individual, by dint of their long purses, unless they entered into their views.  The object of the defendants had clearly been to put a sum of money into their pockets, and yet the jury had been told they had no sordid notions in their heads.  The jury were bound to take the law of the case from the bench, and they would find that a combination of two or more persons for the purpose of effecting even a lawful object, was illegal.  He did not care whether Messrs Hughes and Porter wagged their fingers or not; one thing was clear, that they had bought no land.  This shewed that their sole object was to pocket money.  The defendant Hughes had fixed the fraud upon all the other parties.  He had entered into a conversation with Mr. Roberts, and prevented him from bidding, on the ground that the lands were intended for Mr. Macqueen; carefully concealing the arrangement which had actually been entered into.  This was giving a flat contradiction to the defence offered through their counsel.  Then, even after the last trial until the present day, the defendants were pertinaciously clinging to their fraud.  Mr. Hughes was no s simpleton - and Mr Porter was an intelligent man of business; or the declaration, that they acted in ignorance might be entitled to some consideration - but what was really the case?  Why, they placed their characters in one scale, and their spoil in another - and the latter had the preponderance.  The object of the present prosecution was to prevent he longer existence of notorious frauds, and every buyer would feel it to be his interest that they should be put an end to.  The Conspirators were closely watching the actions of others, that they might pick their pockets.  He, the Attorney-General would be perfectly satisfied, and well-pleased even if the jury were to return a verdict of not guilty.  It was the duty of a person filling the public situation he did, to be so; and he hoped the public would be equally satisfied with such a result.  In brining forward this prosecution, he had merely discharged his duty; and he would now leave it to the jury to do theirs.  It was no answer to this case that Mr Eales was not so morally guilty as his associates because he had derived no profit from the transaction.  In the eye of the law he was legally guilty.  If, however, the circumstances of his case presented his conduct in a different light to that of the other defendants, the Court, who had the power of doing so, would let him have the benefit of it.

The Acting Chief Justice was proceeding to charge the jury, when the latter intimated that they would not trouble His Honor to read over his notes of the evidence.  His Honor then entreated the jury not to be influenced by the former verdict, nor by any previous opinions which they might have formed upon the subject before they entered the jury-box.  The Crown in this case acted as the mere trustee of the public, and every member of the community was more or less interested in the question.  His Honor then proceeded to explain the law upon the subject; telling the jury that if they believed the evidence had established either of the two counts in the information, he was bound to tell them in point of law, that the parties were guilty of a conspiracy.   The learned Judge left three points for the consideration of the jury.  First, did the defendants act in concert?  Secondly, was their object to defraud the Crown of a fair and marketable price for its waste lands?  Thirdly, did the defendants intend to defraud?  If, after looking at the actings and doings of the parties, the jury were satis [sic] upon the evidence that the defendants were guilty of conspiracy, they would say so by their verdict.

The jury, after about five minutes consideration, returned a verdict of ``Guilty" against all the defendants.  The defendants then entered into their personal recognizances of £1,000 each, to attend upon the floor of the Court on the first day of next term, to receive judgment.  The Court was crowded, and the trial lasted for upwards of thirteen hours.

 

Dowling A.C.J., and Burton and Kinchela JJ, 15-16 September 1837

Source: Sydney Herald, 18 September 1837[6 ]

 

Mr. Therry said that in the absence of the Attorney General, it became his duty to move that John Terry Hughes, George Porter, Peter McIntyre, and John Eales, who were convicted of conspiring together to defraud the Revenue of the Colony be called up for judgment.  He had not been instructed to address the Court in aggravation; in fact the prosecution had been commenced by the Attorney General to prevent the continuance of a great public evil, which had crept into practice at Land Sales; a practice which if not checked, would be alike injurious to the revenue and interests of the Colony.  He understood that affidavits in mitigation had been prepared, and if they merely alleged facts in mitigation, he should not oppose them, but it would depend upon what was said by the defendants whether he should again address the Court.

The defendants having been called on to say why, judgment should not be passed on them:-

Mr. Foster said that he held the affidavit of the defendant Hughes, and he though that the matter it contained would satisfy the Court that it was not necessary to treat the defendants with severity, the object of the crown in commencing the prosecution having been effected by the defendant's conviction.  (The affidavit of Mr. Hughes was read:- it stated that at the time he entered into the agreement with the other defendants, he was wholly ignorant of breaking the law, and if he had known it had been illegal, he would not have done it; and that about two months before the Land Sale, he purchased the Waverly Estate of Mr. T. P. Macqueen, and therefore he considered he was entitled to all the advantages of the promise made by Mr. Roberts to Mr. Macqueen, not to bid against him for the land adjoining that estate.)  Mr. Foster continued, as for the defendant remaining obstinate and not pleading guilty, Mr. Hughes considered he had done nothing morally wrong, and why should he plead guilty.  The Acting Chief Justice said that that had nothing to do with it, every man had a right to have a fair trial, and have the decision of the Court.  Mr. Foster said the defendants had given up all claim to the land, and had withdrawn the actions that had been commenced.  Mr. Justice Burton enquired if that was stated in the affidavit?  Mr. Foster said it was not, but it could be if the Court would allow it.  Mr. Therry objected to any fresh facts being stated in the affidavits; the affidavit that had been read he had seen and had no objection to, but if fresh matter was allowed to be introduced, he should require time to answer them.  After more discussion, Mr. Foster was allowed to amend the affidavit, with the understanding that Mr. Therry was to have time to answer it if he required it.  On the part of Mr. Eales, he (Mr. Foster) held in his hand Mr. Eales affidavit, which stated that he was present at the sale in the market place, when a discussion took place between the other defendants and Mr. Sempill, and it was proposed to Easles that he should buy the land on their account, which he did, and that in order to prevent any running up from the known animosity of some of the defendants, it was resolved that they should bid by a sign which could not be seen by themselves, but might be seen by the deponent and other respectable persons in the room, and that he had no interest whatever in the transaction.  The very fact of Mr. Eales lending himself to the transaction, without any interest or reward whatever, shewed, in his (Mr. Foster's) opinion, that the defendants were ignorant of their having committed any crime either legally or morally speaking.  Parties that might afterwards come up, would doubtless stand in a different position, as those proceedings had been canvassed and made public; indeed he had no doubt that the whole purpose of justice would be answered by the position in which the defendants were placed by the verdict against them, even without any punishment at all being inflicted on them.  The other part of Mr. Hughes' affidavit being now ready he would read it, to shew that so soon as he was aware that he had done wrong, he had given up all claim to the land, and discontinued the action he had brought against Mr. Sempill for the notes, so that he had been considerable sums out of pocket.

Mr. Windeyer said, that he hardly thought it necessary to follow his learned friend, except to observe, that the defendants stood in no respect in a different position from Messrs. White and Goggs, except that by the pleading guilty they appeared to be aware they had done wrong; and he would submit, that if gentlemen of education like Messrs. Macpherson and Sempill did not know that it was an offence, it could not be a very great one; it was no offence against the statute law, and he was not aware how it was an offence against the common law, and he thought it would be a great scandal to the law if the defendants were to be punished for committing an offence against the common law, and he thought it would be a great scandal to the law if the defendants were to be punished for committing an offence against no know law, and which they were not aware was an offence.

Mr. Justice Burton thought this observation was not fair; the defendants had been twice found guilty of an offence which the Judges held to be contrary to law, and it could not be said they had done no wrong.

Mr. S. Stephen addressed the Court on behalf of Mr. Macintyre.  By the affidavit of Mr. M. it would be seen that he had no knowledge or intention of doing wrong, and as it appeared by the statement of the Crown prosecutor that the prosecution had only been entered into for the purpose of preventing the continuance of a practice that had long prevailed at the land sales, he thought that the conviction of the defendants would be sufficient to shew the public that those practices could not be carried on.  As the jury had found Mr. Macintyre guilty, he was of course convinced that he had committed an offence, but he did not know at the time that he was doing wrong or that he had committed a moral offence, and he therefore trusted that the Court would be satisfied with a very moderate degree of punishment.  (Mr. Stephen then read the affidavit of Mr. T. P. Macqueen, which stated, that he requested Mr. Macintyre to call on Messrs. Hughes and Hosking and arrange about purchasing the land adjoining the Waverly Estate, and that there could not have been any collusion between Mr. Macintyre and Mr. Hughes, as it was the interest of the former that the land should be purchased for Mr. Macqueen.  The affidavit of Mr. Macintyre stated nearly all the facts as proved in evidence, but denied that he had any knowledge that he was doing wrong, or that it was part of the original plan that the land should be afterwards sold; that at the sale at the Royal Hotel he purchased upwards of two thousand acres, for which he would have had to pay more than the minimum price of five shillings per acre had it not been for the extraordinary price paid by Mr. Sempill for his land, and that he was ready and willing to repay to that gentleman the sum of £108 which he had received from him.)  Mr. S. concluded by observing that the whole conduct of Mr. Macintyre had been open, and he had never concealed his share in the transaction, and, as under all the circumstances no moral guilt could be imputed to Mr. Macintyre, he trusted the Court would deal leniently with him.

Mr. Therry said, that the course taken by one of the defendants called on him to say a few words in reply.  The grounds of mitigation which the defendants had urged, he was sure the Court would make available.  All the defendants stated that they were ignorant they had committed any crime; ``ignoranta iexscusat neminem" was an old maxim, and the defendants had taken good care to have their doubts as to their guilt removed, for they had had the verdicts of two juries against them.  The defendants found that £550 came into each of their pockets, and they should have been satisfied how it came there.  As to justice being satisfied by a verdict of guilty, and punishment being reserved for future delinquents, he entirely differed with his learned friends; the measure of punishment laid in the breast of the Court, and he was sure the Court would not sanction the arguments of his learned friends.  The circumstances that went in mitigation only he did not object to; the affidavit of Mr. Eales placed his conduct in the most favorable light, and it must strike every one that his affidavit was stronger than the affidavits of the other defendants; Mr. Hughes relinquished all claims to benefit from the transaction, but it was certainly at the eleventh hour two verdicts of a jury being against him.  The affidavit of Mr. Macintyre contained many circumstances to justify the verdict, for nearly all the principal facts proved in the case were admitted; as for the affidavit of Mr. Macqueen, he supposed it was introduced for ornament, for he could not see it was the least use to the case.  Mr. Therry concluded by observing, that the Attorney General did not press for any severity of punishment; the prosecution had been commenced on high public grounds to put a check to a system which was highly injurious to the Colony; the system had been already checked, and he (Mr. T.) felt that the thanks of the public were due to the Attorney General for conducting the prosecution.

The defendants were ordered to attend for sentence on Saturday.

After disposing of a number of matter of course motions the Court adjourned.

Saturday, September 16. - In Banco - Before three Judges.

John Terry Hughes, Peter Macintyre, John Eales, and George Porter, appeared on the floor of the Court.

The Acting Chief Justice said that before passing sentence, the Court wished to know whether the defendants had returned the bills and securities that had been taken from Mr. Sempill.

The Crown Solicitor said, that a great portion of them had been given up, and he was satisfied the remainder would be.

The Acting Chief Justice said, the defendants appeared on the floor of the Court to receive judgment, having been convicted of a conspiracy to prevent competition at a land sale, and thereby injure the auction and defraud the revenue.  Conspiracy is justly held to be a grave and in some cases an infamous offence; and it was with sincerity that the Court said that it was painful to see persons of the respectability of the defendants on the floor to received judgment for such an offence.  The defendants had had the advantage of having all the circumstances of the case considered by two juries, both of whom had found them guilty.  The first jury appended to their verdict such a recommendation that the defendants had the advantage of a new trial; - there could be no doubt that it was only a mistake in form, and that in substance the jury only meant to give the defendants the benefit of a lenient recommendation.  The second jury returned a verdict of guilty without any recommendation, so that the guilt of the defendants was placed out of doubt; indeed the learned Counsel who addressed the Court in mitigation, felt obliged to admit that the defendants were guilty, and only pleaded the ignorance of the defendants; so far they had not aggravated their offence, by endeavouring to vindicate themselves in the eyes of the public.  In bringing up the defendants for judgment, the counsel for the crown did not press for any heavy punishment, as the object of the prosecution had been effected; and the Court was therefore spared the pain of awarding a sentence that might appear heavy; and could look at all the circumstances alleged in mitigation, no facts to answer them having been brought forward on the other side.  The main grounds of mitigation relied on by the defendants were, that they did not know that they were guilty of any offence; that they contemplated no moral fraud; that they were influenced to act as they did by the manner in which Land sales were conducted; and that so far from having made any money by the transaction, now that they paid back the money to Mr. Sempill, they were large sums out of pocket.  Giving all these circumstances their full weight; and bearing in mind the degradation and expense which had been inflicted on the defendants by their conviction, the Court thought that the justice of the case would be satisfied, in ordering each of the defendants to pay a fine of £100 to the King, and to be imprisoned until the fine was paid.  The defendants handed the money to the Sheriff and were discharged.

 

 

Notes

[ 1] See also Australian, 12 and 16 May 1837; Sydney Gazette, 11 May 1837; Dowling, Proceedings of the Supreme Court, Vol. 137, State Records of New South Wales, 2/3321, p. 47; and see Vol. 138-1, 2/3322, p. 75.  The Australian published an editorial on the case on 16 May 1837. This case was also recorded in Burton, Notes of Criminal Cases, vol. 31, State Records of New South Wales, 2/2431, pp 27 and 71.

[ 2] Attached to Dowling, Proceedings of the Supreme Court, Vol. 137, State Records of New South Wales, 2/3321, p. 47, is a document marked ``Abstract of Summing Up".  It begins

``Conspiracy, is an agreement between two or more persons to effect an illegal object, or to effect a legal object by improper means.

``It is criminal for two or more persons to conspire together to prevent a fair and open competition at an auction of land, or any other property, and thereby to prevent the vendor or owner, form obtaining the fair market value.

``This principle applies as well to an auction of Crown property, as of the property of a private individual."

[ 3] Sydney Herald, 25 May, 1837; Sydney Gazette, 23 May 1837.

[ 4] See also Sydney Gazette, 3 June 1837; Australian, 2 and 6 June 1837.

[ 5] See also Australian, 4 August 1837; Sydney Gazette, 3 and 5 August 1837; Sydney Herald, 7 August 1837; Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 138.

[6 ] See also Sydney Gazette, 16 and 19 September 1837; Australian, 19 September 1837.

 

 

Published by the Division of Law, Macquarie University