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

R. v. Moore [1837] NSWSupC 2

perjury - Campbelltown - indictment, error in

Supreme Court of New South Wales

Burton J., 2 February 1837

Source: Sydney Herald, 6 February, 1837[1 ]

Patrick Moore was indicted for committing wilful and corrupt perjury, before the Bench of Magistrates at Campbelltown, on the 24th of September.

The facts of this case were very simple. The chief constable of Campbelltown laid an information, before Messrs. Allman and Coghill, against a publican named Davies, for allowing a prisoner of the Crown to drink in his house. The informer produced three witnesses who swore that a Convict named Phillips was in the house drinking with one Moore.  Davies, in his defence, was drinking in the house with him.  Under these circumstances, the Magistrates convicted Davies in the penalty of five pounds, and committed Moore for perjury.

Mr. Foster, on the part of Moore, took a variety of objections to the indictment, one of which was, that as the Publican's act, under which the information before the Magistrates, was laid only made it an offence to allow a Convict to be in his house, and as the information charged Davies with serving a prisoner of the Crown it was informal, therefore the Magistrates had no jurisdiction in the matter, and consequently no perjury could be committed.

The Attorney-General said, that unless the Judge considered the terms Convict and prisoner of the Crown synonymous, he was aware the indictment must fall.  He was aware of the objection before he came into Court, but as the Magistrates had proceeded with the case, calling Phillips a prisoner of the Crown, he could not avoid it.

Mr. Justice Kinchels - In all cases it is necessary to use the express words mentioned in the Act of Parliament, or the information must fail.

-Discharge the prisoner.[2 ]

 

 

Notes

[1 ]See also Sydney Gazette, 4 February 1837, stating that he had taken ``his corporal oath upon the Holy Evangelists".   See also Dowling, Proceedings of the Supreme Court, Vol. 131, State Records of New South Wales, 2/3315, p. 1.

On 1 February 1837, Moore was also acquitted of breaking and entering a dwelling house: Sydney Herald, 2 February 1837; Australian, 3 February 1837; Sydney Gazette, 2 February 1837.

[2 ] The Australian, 7 February 1837, recorded this as follows: ``Not Guilty, through an informality in the indictment in making use of the words `prisoner of the Crown' instead of that of `Convict,' as required by Act of Parliament."

Published by the Division of Law, Macquarie University