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

R. v. Kelly, 1837

bigamy - perjury - fraud

Supreme Court of New South Wales

Dowling A.C.J., 15 November 1837

Source: Sydney Herald, 20 November 1837[1 ]

Wednesday - Before the Acting Chief Justice and a Military Jury.

William Kelly, late of Sydney, labourer, was indicted for a misdemeanor.  The information set forth that the said William Kelly being a person of evil fame and name, and dishonest conversation, and wilfully and wickedly contriving and devising to defraud one Michael Kellashar and Elizabeth his wife, and the Reverend Robert Cartwright, and intending to intermarry with one Mary Kellahar, an infant, under the age of twenty-one years, then under the guardianship of her father, did unlawfully, corruptly, and fraudulently make oath before one of the Surrogates, duly appointed under the seal of the Bishopric of Australia, that he was a bachelor, and desirous of marrying the said Mary Kellahar, who was above the age of twenty-one years, and that there was no relationship or kindred, or any other impediment to their being lawfully married, he at the same time well knowing that the said Mary Kellahar was an infant under the age of twenty-one years, then under the guardianship of her father, and knowing that he had been previously married to one Julia Singleton, who was then alive in the Kingdom of Ireland, and that he knowing there was such impediment, in consequence of the false oath obtained from the Surrogate a license for the solemnization of matrimony, and at Sydney, on the 7th day of September, with force of arms did falsely and deceitfully cause the performance of the ceremony of solemnization of matrimony between himself and the said Mary Kellahar without the consent of her guardian and well knowing there were the impediment aforesaid, to the great displeasure of Almighty God, in contempt of our Sovereign Lady the Queen, to the great disparagement and injury of the said Mary Kellahar, to the great grief and sorrow of her father and mother and other friends and relations, contrary to the laws, customs, and Acts of Council of the Colony, to the evil example of all others in like case offending, &c. &c.

The Attorney-General opened the case; he said that although the prisoner was only charged with a misdemeanor; from the novelty of the case he thought it better to try it in the Supreme Court; it would appear in evidence that the prisoner had committed both perjury and bigamy, but from the great distance of the country where the first marriage was solemnized it would be impossible to bring home the charge of bigamy, and there would be a legal difficulty in establishing a case of perjury, for although he was of opinion that a case of perjury could be sustained, and had a very high authority to support him, still there were so many cases in the books against it that there would be great difficulty in the point.  [The learned gentleman here cited several cases to shew that an assignment of perjury cannot be supported on a deposition taken before a Surrogate.]  But if there was no case of perjury, there could be no doubt that if the prisoner was married in consequence of taking a false oath, he had committed a fraud, and was indictable for a misdemeanor, as a cheat at common law.  The learned gentleman then detailed the facts of the case, and called

The Rev. Robert Cartwright, Chaplain of St. James' Church, and one of the Surrogates of the Bishop of Australia, who deposed to the prisoner applying to him for a license to be married, and that he made the usual affidavit that he was a bachelor, that Mary Kellaher, to whom he wished to be married, was above the age of twenty-one years, and that there was no impediment or hindrance to their being married.  The prisoner swore to the affidavit after it had been carefully read over to him, without any hesitation, and in consequence he procured a license for him, and afterwards married him; the registry book was signed by the prisoner, and by the mark of Mary Kellaher, and a man named Bickmoor, but the Reverend Gentleman was not able to swear who wrote the names, but believed it was Kelly, nor could he at a subsequent part of the proceedings identify the person of Mary Kellahar as the person to whom he married the prisoner.

Michael Kellaher deposed that two of his daughters, Catherine and Mary, came out to this Colony in the ship Duchess of Northumberland, and that he arrived here as an emigrant, with his wife and seven children, in the Lady Macnaughten; he had known the prisoner for twenty-five years, and knew that he was transported about eight years ago; he knew that he was married in the town of Mallow, near Cork, and had four children; a few days before he left Cork, in November, 1836, Kelly's wife applied to him to get her a passage to this Colony, and he would have done so if it had not been contrary to the regulations of the Emigration Committee; and the family and the parish priest laid on obligation on him to find out Kelly on his arrival here.  When he arrived here Kelly asked after his wife and family, and promised to send them something, but afterwards said that if his wife and family came out here he would go to the Cape of Good Hope, where his sister resides.  He continued very friendly with Kelly for some months until he heard, three or four days after it happened, that he had married his daughter.  His daughter Mary was only nineteen years of age, and the prisoner was aware of that, as he had told him so.

Elizabeth Kellahar deposed that she had been married to Kellahar seventeen years, and Mary Kellahar his daughter by a former wife, was then only two years of age.  She also gave evidence as to knowing Kelly's wife, and having often seen them together in Mallow.

Mr. Hayes, the clerk of St. James' Church, proved the marriage of Kelly, but was not able to identify Mary Kellahar as the woman to whom he was married.

This was the case for the prosecution.

Mr. Sydney Stephen, for the prisoner, took several technical objections which were overruled by the learned Judge.  The learned Gentleman then addressed the Jury for Kelly, contending that it was necessary in the first place the first marriage should be proved legally, which it had not been, and that it was not because the prisoner was indicted for a minor offence that he should be convicted on less evidence than would otherwise have been necessary.

His Honor said that the first enquiry for the Jury was whether or not Mary Kellahar was of age, and was born in lawful wedlock; if they were satisfied that she was not of age; then was the prisoner aware of that fact; was the prisoner in a condition to contract lawful matrimony, and were the representations made by the prisoner true or false?[ 2]  Guilty -- Remanded.[3 ]

 

 

Notes

[1 ] See also Australian, 21 November 1837; Sydney Gazette, 18 November 1837; Dowling, Proceedings of the Supreme Court, Vol. 145, State Records of New South Wales, 2/3330, p. 110.

[2 ] The Australian, 21 November 1837, put this as follows: ``The Acting Chief Justice, in his charge to the jury, laid down four propositions for their consideration and guidance.  First, as to whether Mary Kellaher was of age, and was born in lawful wedlock?  Secondly, if she was not of age, did the defendant know it?  Thirdly, was the defendant in a condition to contract lawful matrimony?  And fourthly, if the defendant was not in such a condition, what was his object?  Was it for the deceitful and fraudulent purpose laid in the indictment?"  These and similar points are also put in Dowling, Proceedings of the Supreme Court, Vol. 144, State Records of New South Wales, 2/3329, attachment to p. 111, and see pp 143-144.

[ 3] The defendant subsequently sought the appointment of counsel to argue against his conviction: Australian, 21 November 1837; Sydney Gazette, 23 November 1837.

Published by the Division of Law, Macquarie University