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

R. v. Onions [1837] NSWSupC 58

malicious prosecution - civil procedure - imprisonment for debt - perjury

Supreme Court of New South Wales

Dowling A.C.J., 10 August 1837

Source: Australian, 15 August 1837[1 ]

THURSDAY. - Before Acting Chief Justice Dowling, and the following Jury: -- Messrs. George Miller, Allan McGaa, George Porter, Frederick Parbury, James Christie Phelps, and George Rattray; (Special Jurors) - Messrs. Isaac Shepherd, Thomas Smith (Foreman), G. Cavenagh; (Special Tales) - and Messrs. George Sewell, Jun., Joseph Sly, and James Stark, (Common Tales).

Rex v. Onions - This was an information exhibited against the defendant for wilful and corrupt perjury, contained in a certain affidavit of debt made at Sydney, on the 2nd of July, 1836, before George John Rogers, Esq., one of the Commissioners of the Supreme Court appointed to take oaths, and duly authorised in that behalf; on which said affidavit the defendant had caused one John Raine to be arrested and held to bail on a writ of Capias ad respondendum; he, the said Samuel Onions, in the said affidavit, having falsely, corruptly, designedly, and maliciously sworn on the Holy Gospels of Almighty God, that the said John Raine was justly and truly indebted unto him, the said Samuel Onions, in the sum of £20, and upwards, for goods sold and delivered, and not then paid; whereas in truth and fact, the said John Raine was not at the time of such arrest indebted to the said Samuel Onions in the said sum of £20, and upwards, nor in any other sum whatsoever.  The prosecution was conducted by Mr. Windeyer, in the absence of the Attorney General, assisted by the Crown Solicitor, and Mr. Nicol Allan.  Messrs. Sydney Stephen and Foster appeared for the defendant.  Attorney, Mr. G. R. Nichols.

Mr. Windeyer stated the case at considerable length, and then proceeded to call the following witnesses.  The formal parts of the case, namely, the affidavit of debt, the issuing of the Capias ad respondendum, and the record of the trial before Mr. Justice Burton, and Messrs. Ryder and Shadforth, Assessors, on the 23rd of February last, in which a verdict was returned for the defendant, were successively proved by Messrs. Gurner, Rogers, and Blake.  Mr. John Raine being sworn, said, I am a notary public by profession; I am now trading between Van Diemen's Land and this colony; I was at one time proprietor of the Darling Mills; I left them in January, 1834; I then went to the Home Bush Estate, which I rented; I applied to Samuel Onions, of King-street, ironmonger, to supply me with agricultural implements; this was in February, 1834; at that interview I mentioned to him that I had an invoice of copper's jointers; I had received them from Mr. Thomas Horton James, and observing several of the same description in Onion's shop, I asked him to take that invoice, and dispose of the jointers, and give me credit for the amount when sold, against the goods I had then ordered; jointers are the same as carpenters' planes, but larger; there were six in the invoice, and they were charged either £5 15s. or £6; there ought to have been a profit on them; they were worth from 25s. to 30s. each; they were quite new, and had only just been imported; I also told Onions that I had some old cast-iron mill work - two pinions, and an iron step for a mill shaft, which I would also send him on the same terms; he consented readily, and my order was taken down; I did not know the amount of my bill until I afterwards received it about the end of May; (bill produced), this is a copy of the bill then presented to me; the amount is £29 14s 6d; two items, amounting to 5s 6d, have been added since I received the bill; there is no credit given for the coppers jointers, nor the old cast iron; at the tie the bill was delivered to me, the jointers were in Onions' shop, and the old iron outside; I took a person there to buy it; the agricultural implements were taken to Home Bush on the 21st of February, 1834, in my own cart; I found it impossible to go on with the farm in consequence of an information for libel against me, and two judgments in civil suits; I left Home bush and went to reside in Princes-street, which was within the rules of the Supreme Court; I removed my furniture and every thing from Home Bush, including the best of the agricultural implements; finding I could not possibly overcome my embarrassments, and being informed that I should be both fined and imprisoned for the libel, I made various arrangements with several of my creditors; I applied to Onions, stating my situation, and he promised to go to Princes-street, and see what state the articles I had from him were in; this was in the latter end of May, 1834; I directed the iron work to be laid out in my yard for his inspection; he came and inspected it; he then returned into the parlour, and we had some conversation relative to my situation, and he agreed to accept the iron work he had just then seen, together with the jointers, &c., in satisfaction of his claim; he asked me to transfer him a nailor or blacksmith from amongst my men; this I consented to; the man I transferred was Thomas Jones; in about two days afterwards I gave Jones a pass to proceed to Onions's shop; there was no written memorandum of the transaction; the goods were delivered to Onions at his own shop; the interview took place in my parlour, which was a small room; there were present my mother; Mrs. Wilson, her companion; my son and myself; upwards of two years elapsed, and no application was made by Onions to me for payment; nearly all that time I have been in Sydney; there was a small balance remaining, the allowing for the goods returned scarcely settled the transaction; there might be £5 or £6 remaining; the transferring Thomas Jones I thought completed the settlement; Jones remained with Onions for about sixteen weeks; I signed an application for the transfer; he was taken from Onions in consequence of a Government regulation which was issued about that period; I went to the prison on the 7th of June, 1834; while I was there, Stannard, who I considered was an occasional clerk to Onions, came to me to sign the application for Jones's transfer; Onions had been with me first, and requested me to sign it, and I agreed to do so; Onions then said he would send Stannard to me with the application; Stannard came in a day or two afterwards, and I signed the application which he had prepared; at this time I gave to Stannard Onions's original bill of parcels, with my marks in the left margin, and a receipt which I had written on the back for Onions to sign as an acquittance in full of his claim against me; Stannard promised to procure the receipt and return it to me; he never came near me afterwards; when I met Stannard after I was released from confinement, I asked for the bill and receipt; he told me it had been mislaid; not thinking it of very great consequence I took no further notice; I had no further dealings afterwards with onions, except for a few knives and forks amounting to 20s. which was a ready money transaction; on the 2nd July, 1836, I was standing at the London Tavern, in George street, where there was a sale by auction; it was the public-house licensing day; Onions came up, according to my impression, in a state of intoxication, and said to me, well Mr Schemer, how do you get on; I struck him several times with my cane; he went immediately to the police office, which was opposite, and obtained a summons against me for assaulting him; I attended the hearing on the 5th, and was fined 5s; on that same day I was arrested at the suit of Onions and held to bail for £29 14s 6d on his affidavit of debt for £20 and upwards; there had been no other transaction between me and Onions to make me indebted to him in £20 and upwards; there had been no demand made in the interval of £29 14s 6d or any other sum; I was in a condition to have paid that, or even fifty times the sum; Mrs Wilson about 8 or 9 mouths ago left the colony for New Zealand, in the Minerva, Captain Milne; I believe she has since gone to America, which is her native place; after the civil action on the 23rd February last, my mother went to Bathurst; at the trial she stated herself to be seventy-six years of age, but I think she must be upwards of eighty; she is very infirm; a subpoena was sent for her to attend her to day.

Mr. Raine underwent a lengthened cross-examination, but he persisted in his statement throughout.

Mr. Nicol Allan, attorney of Mr. Raine in the civil action brought by Onions, proved that he demanded the particulars upon which the action was brought, and obtained the one produced, from the office of Mr. George Allen, attorney for Onions.

Mr. John Robert Raine, son of Mr. John Raine, in an examination of equal length, corroborated his father's testimony.  (Two written documents were here put in on the part of the defendant, and read by the officer of the Court.  The one, a letter from Mr. John Raine to Mr. Onions, dated Home Bush, Friday morning, requesting him to receive certain old iron work, and to dispose of it on the writer's account to the best advantage, and the same way as the Jointers, to place the proceeds when received to the credit of Mr. John Raine.  The other was an order dated 19th May 1834, signed by Mr. John Robert Raine, and addressed to Mr. Onions, desiring him to receive certain articles of iron work therein specified, and to give a receipt for them.  This order did not contain all the articles marked in the bill of parcels as having been returned to Mr. Onions.)

Thomas Farrell, holding a ticket-of-leave, but formerly assigned to Mr. John Raine, proved having gone with some articles of iron work (which he could not now detail) in a cart from Mr. Raine's house in Princes-street, to Mr. Onions's shop in King-street, where they were delivered.

Thomas Jones proved that he accompanied the last witness on the same occasion, as did also Mr. John Robert Raine.  The witness also stated that he was sent by Mr. Raine to Mr. Onions, for whom he worked until the following December, when he was ordered to return to the employ of Government.

Mr. Windeyer here wished to put in as evidence, the examination of Mrs. Wilson, taken de bene esse prior to her departure from the colony, but the learned Judge was of opinion, that rule of practice did not apply in the present instance.

The particulars of demand, and the affidavit of debt were then read by the officer of the Court.

Mr. John Robert Raine was recalled to prove that he had returned more articles to Onions than were contained in the witness's order which had been read.

Mr. Edward Borton, landlord of the London Tavern, proved, that at the time of Mr. John Raine's temporary embarrassment, he owed witness about £18, and sent for him telling him his circumstances, and offering him certain articles which were lying in the yard of Mr. Raine's house in Prince-street, which he accepted in full settlement of his claim.  Mr. Raine showed him some iron work which he said he had put aside for Mr. Onions; and after witness came out of Mr. Raine's house, he saw Onions going in.  Witness was present at the assault, and after it had taken place, Onions said to Raine, you owe me £20, or something to that effect; to which the other replied, I owe you nothing; I have paid you.

This closed the case for the prosecution.

Mr. Sydney Stephen, on the part of the defendant, addressed the Jury at considerable length, and stated that he should call witnesses to prove that no settlement whatever had taken place between Mr. Raine and Mr. Onions; but that the articles returned, as well as the jointers and old iron work, had been merely sent to Mr. Onions to dispose of on commission, and that up to the moment of bringing the civil action they were unsold.  The following witnesses were then called for the defence.

Frederick William Stannard was called to prove that Mr. Raine acknowledged to him when in gaol that he owed Onions about £20, and that he employed him to arrange with Onions about it, who refused.  The witness was already under commitment to take his trial for perjury at the civil trial, and he now prevaricated and contradicted himself so grossly, that the Judge ordered him out of the box, saying he would not insult the Jury by reading his evidence to them.

Mr. S. L. Harris was called to prove that Mr. Raine acknowledged the debt to Stannard in his presence.  The witness, however, merely heard Mr. Raine say that a gaol was a bad place to come for money.

Mr. John Thomas Gurner was called to prove, that about 18 months or two years ago, he was present when Onions, who was tipsy at the time, asked Mr. Raine when he intended to pay him what he owed him; when the latter said, when he got rich, or when he paid his other creditors.

Mr. William Moffitt was called to prove, that in August 1835, Onions was about leaving the colony, and asked him to act respecting his debts and credits during his absence.  He mentioned some debts which witness would have some trouble to get in, and among these, was one of Mr. John Raine's.

Roger Therry, Esq. being sworn, was asked whether he would believe Mr. John Robert Raine on his oath, where his father's interest was concerned?  After some hesitation, Mr. T. replied, that he would do so, except there was some contradictory evidence offered, and he should then decide according to the balance of testimony.  He had often seen Mr. Onions in his Court, and was favorably impressed with his character, and considered him an honest fair tradesman.  He appeared to be always lenient to his debtors.

George Mawbey, Mr. Onions's clerk, was called to prove, that the jointers and iron work were not disposed of at the time he left the employ of Onions, which was on the 10th January last.  He always understood they were left there to be sold on commission.

Messrs Thomas Ryan, Robert Cooper, William Lamb, Joseph Thompson, and Henry Merritt, were severally called, and deposed that they would not believe Mr. John Raine on his oath.

Dr. Hosking was called to prove a domestic circumstance reflecting on Mr. John Robert Raine's character, but as it entirely failed, we do not think it necessary further to allude to it.

Mr. Edward Lee was called to prove, that he was present soon after the civil trial, on board the Francis Freeling, at a lunch with Mr. John Raine and several other persons, when the conversation turned upon the commitment of Onions for perjury; and Mr. Raine said that he would spend £500 to gain a conviction.

Thomas Horton James, Esq. was sworn as to his opinion of Mr. John Raine's veracity, but he stated that he knew nothing morally wrong of him.

This closed the defence - and Mr. Windeyer replied at some length, commenting in no measure terms on the characters and motives of some of the defendant's witnesses.

The Acting Chief Justice charged the Jury - and after having explained to them the law of the case, he observed, that on the one side or the other, the grossest perjury had been committed.  It was for the Jury to determine on which side the false-swearing lay.

The Jury having consulted for about a quarter of an hour, pronounced a verdict of ``Guilty" against the defendant, who was remanded from his bail, to take his trial upon another information, charging him with subornation of perjury.

 

Dowling A.C.J., and Burton and Kinchela JJ, 21 August 1837

Source: Sydney Herald, 24 August 1837[ 2]

 

Samuel Onions, convicted of perjury, having been placed at the bar, the Attorney-General prayed the judgment of the Court.

The Clerk of Arraigns asked Onions, in the usual form, what he had to say when the judgment of the Court should not be passed on him, when he said that he was as innocent as the child unborn, and that Raine was still indebted to him.

Mr. Sydeny [sic] Stephen said, that he had been instructed to move for a new trial, on the ground of mis-direction in the learned Judge who tried the case.  The Acting Chief Justice said, that he had received no notice of any such motion; and it was very irregular to move for a new trial without giving him notice.  The Attorney-General said he had received no notice of the motion.

Mr. Justice Burton enquired if the objection was a cogent one.

Mr. Stephen said, it was that the learned Judge omitted to tell the jury that if they considered Onions believed what he swore was true, that they must acquit him; but told them that if they believed Raine's witnesses, Onions was guilty, as gross perjury must have been committed on the one side or the other.

The Acting Chief Justice said that he had an abstract of his summing up in his note-book, which he would read; he told the jury that they must be satisfied that the oath was taken in a judicial proceeding; that it was taken before a competent tribunal; that the defendant swore to the matter in the affidavit deliberately, and knowing it was false.

Mr. Justice Burton said his Honor need not go any further, that was quite sufficient.

Mr. Stephen said that his Honor, as well as the defendant's counsel, had kept out of the view of the jury the probability of Onions having been mistaken.  When he (Mr. S.) was addressing the jury he went on the ground that was afterwards taken by his Honor, that there was gross perjury on the one side or the other.

The Acting Chief Justice said that when he was about summing up, the jury requested him not to read the evidence, and he, therefore, at that late hour of the night confined himself to making a few observations on the case; he told the jury that they must be convinced that Onions knew he was swearing falsely, and that the test for their decision was, was the affidavit made from a boná fide conviction on Onions' mind that Raine owed him the money.

Mr. Stephen entered into an argument at great length to shew that all that was sworn by Raine and his witnesses might be true, and that Onions might still have considered the goods were sent back for him to sell on commission, and that Onions had always acted as if he considered Raine owed him the money.

Mr. Justice Burton said that when the civil case out of which the whole affair arose was tried before him, Raine's defence was that he had returned the goods, which Onions denied, and to his great surprise he found Onions admitting that he had received the goods, but that they were for sale and not as payment.

The Acting Chief Justice said, that in consequence of what had fallen from Mr. Stephen, he must read his notes of the evidence, and he accordingly read a great portion of them, when he was stopped by Mr. Justice Burton, who said he had heard quite enough to convince him that the case was properly left to the jury.

A petition from Onions, signed by a number of people, praying for a mitigated sentence on account of the character for honesty which he had long borne, was then read.

His Honor the Acting Chief Justice addressing Onions said, that he had been convicted by a Special Jury of the heinous crime of perjury, assigned on an affidavit of debt to hold one John Raine to bail.  All the circumstances of the case had been left to the jury, and they after a painful investigation of great length, having returned a verdict of guilty, the Court was not at liberty to presume that he was not so.  A new trial had been moved for on grounds which the Court over-ruled, because they were not consistent with the evidence on the trial.  A petition numerously and he must say respectably signed, had been handed in, praying for a mitigated punishment on the ground of the previous good character of the prisoner.  With every disposition at all times to temper justice with mercy, without the inducement of a petition, the Judges could not but lament the extreme facility with which persons suffer themselves to be prevailed on to sign petitions praying for mercy without any regard to the intrinsic merits of the case.  Whatever doubts the Court had of the prisoner's guilt the petition did away with them.  On reference to the notes of the learned Judge who tried the civil case, they found that Onions utterly denied that the goods were every sent back, while in his petition he acknowledged that they were sent back, but that he believed they were on commission.  Assuming this to be true, the Court felt a difficulty in conceiving how Onions could swear that Raine owed him £29, and that no part of it had been paid.  The extreme haste too in which Onions took the oath when he had been struck by Raine, after allowing the matter to stand over for two years, and the excitement which he was under at the time, clearly shewed that he manifested extreme disregard of the solemnity of an oath.  Even if he had been betrayed by passion, the Court would have made some allowance for human frailty, but his persisting in carrying on the case, and calling that worthless man Stannard as a witness, did away with all claim for mercy on that account.  However suspicious the evidence of the principal witnesses for the prosecution, might be by itself, there was sufficient evidence in corroboration to justify the verdict of the jury.  (His Honor here recapitulated most of the principal points in the case.)  The Court felt satisfied that the jury had tak[e]n a right view of the case and justly found the prisoner guilty.  The prisoner's petition stated that he had been betrayed by Stannard who prevaricated in order to be revenged for some quarrel that had occurred, but if that was the case, and the object of that worthless person was to convict Onions, why did he not turn round and corroborate Raine's evidence?  The prisoner also alleged that he was an illiterate man, but, however illiterate he might be, it could not be supposed that he was so ignorant as not to understand the nature and obligations of an oath.  The petition also alleged that the prisoner always bore the character of an honest man, but, however much that might avail him in some instances, it entirely failed when a man had committed the heinous crime of perjury.  The notorious prevalence of perjury called on the Judges to assert the majesty of the law with a firm hand, so as to teach the evil doers that they cannot commit crime with impunity, and the Court could not, without betraying its trust as conservator of the public morals, avoid passing such a sentence as would, it was hoped, have the effect of warning others against committing the same offence.  The sentence of the Court was that Samuel Onions be transported to a penal settlement for seven years.

 

 

Notes

[1 ] See also Sydney Herald, 14 August 1837; Sydney Gazette, 12 August 1837; Dowling, Proceedings of the Supreme Court,  Vol. 140, State Records of New South Wales, 2/3325, p. 111.  For commentary, see Sydney Herald, 24 August 1837.

This case concerned Onions v. Raine, 1837.  For earlier proceedings in R. v. Onions, see Sydney Gazette, 3 August 1837.  For a detailed examination of the rules of imprisonment for debt, see Sydney Herald, 19 June 1837; and see Sydney Gazette, 20 June 1837: Lee v. Veale (or Beale).

[2 ] See also Australian, 25 August 1837; Sydney Gazette, 22 August 1837.

 

Published by the Division of Law, Macquarie University