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

R. v. Roberts [1839] NSWSupC 40

criminal procedure - freemasonry - perverting course of justice

Supreme Court of New South Wales

Willis J., 1 May 1839

Source: Sydney Herald, 3 May 1839[1] 

Before Mr. Justice Willis and a Special Jury.

The Queen v. Roberts. -- When this case was called on, an attempt was made to postpone it on the ground that it ought not to be tried before the case of the Queen v. Smart; but as it appeared that the Crown Prosecutor had set it down to suit his own convenience, the objection was overruled, and the case was proceeded with.

The information set forth, that the Attorney-General having preferred a criminal information against Thomas Were Smart, for libel, Richard Roberts, of Sydney, gentleman, being an evil-minded person, and wishing to pervert the ends of justice, endeavoured to terrify one Joseph Kenyon, in order to cause him to give false evidence against the said T. W. Smart.  There were three other counts varying this charge; a fifth charged Roberts with assaulting and falsely imprisoning Kenyon; and a sixth with a common assault.  It appeared that the defendant got Mr. Kenyon into his house, and there drew up a series of questions and answers for Kenyon to learn by heart for the trial.  These questions were in the following shape:--

``Did you ever state that you knew that Mr. Smart, the defendant, wrote the letter now in question?"

Answer. -- ``I am not bound to answer that question; it might subject me to an action"-- N.B. -- Here apply to the Court for protection.

The following was the evidence of Kenyon:-- I am a farmer and grazier, and know Thomas Were Smart, the Auctioneer, and was formerly acquainted with his father-in-law; I also know Mr. Richard Roberts, who was perfectly aware of my intimacy with Mr. Smart; I recollect meeting Mr. Roberts near the botanical garden, on the 4th October last; I was proceeding down Hunter-street, and saw the defendant, who said ``old Joe Kenyon, is that you?"  I looked at Mr. R[o]berts, and was going on; he said ``you must not go, I have something ver[y] particular to relate to you;" I went over to him, and in the course of conversation he said, have you not been saying before Green and Sippe that Smart wrote that letter?  I said, ``no I never did;" says he, ``you have, you damned old fool, and I'll tell you what the consequence will be if Smart gets hold of it, he'll bring an action against you for defamation of character, and he'll ruin you;" then he said, ``Mr. Sippe and Mr. Green will be put into the witness box, and you'll be sure to be proved a perjured man."  He did not say what letter he alluded to then, but from further conversation, I understood it to be a letter casting some reflections upon Isaac Simmons & Co.; I was struck very near senseless; I trembled, and says I, ``now Sir, I'll tell you what I did say before Mr. Sippe and Mr. Green;" but I did not recollect Mr. Sippe being present; I said, ``I had just come into the town with my produce in my cart, and Mr. Green asked me if I had heard the news? and I answered, no -- Green said your friend Smart has got acquitted, and I heartily rejoice at it; I answered Green, ``oh! Green, Smart never wrote that letter, and I think I could answer who did;" when I told him this, Mr. Roberts said, if you did say that Smart wrote the letter, and if you take my advice, I'll put you into the way to defeat Mr. Smart, Mr. Green, and Mr. Sippe."  Roberts pressed upon me very much to go with him to his house, I said I would, and we turned up Hunter-street and went to his House in Philip-street; when we got to the house, we went through a dark room into a back parlour, and he there sat down and got a pen, ink, and paper; he handed me a chair, and I also sat down: he then said to me, ``we'll suggest the questions counsel will ask you."  He wrote the pap[e]r now put it into my hand; I perfectly well reco[l]lect this.  He said, at the first onset, that a third party was on no account whatever to know what occurred between him and me, and I promised him that it should rest between ourselves; he then took a pen and wrote the first question, saying I'll suppose this may be a question put to you by counsel; he said he was not positive it would be put, but he thought it might be; the question is this, ``Did you ever say in the presence of Green and Sippe, that you knew that Smart wrote that letter." I made answer and said, that I would not swear it, and that my answer should be ``No;" he then pressed an answer on me over and over again until I entirely lost my senses; he said that if the counsel pressed the question too hard, I must apply to the Judge for protection; he pressed me to make answer to the question.  ``I am not bound to answer."  I then got up from my chair and stamped and swore; I lost myself altogether, I was so irritated; I told him they might take me and rack me upon the wheel -- that they might do with me what they pleased, but my answer should still be ``No;" this was between seven and eight o'clock; with that Mr. Roberts got up on his legs, put his hand into a drawer and took out a pistol; he said, ``Now, you old fool, you know there's no gammon in me, if you'll not sit down I'll make you."  I became a little terrified and sat down in consequence of his language; I'll not swear that he pointed the pistol at me; when I sat down, he says, ``I'll prove to you that I am one of Mr. Smart's best friends; I am at this moment paying the schooling for one of his nephews, and knowing you for many years, can I bear the thoughts of your being convicted for perjury?  Did not your niece come out with me, and are not you a freemason, and am I not a freemason?  I am bound to protect you."  I think there was some conversation prior to that; however, I recollect him saying to me, ``Don't you know that Hughes and Hosking would give £2000 to come at the writer of that letter to-morrow, and what will men not do for that sum of money?"  He then wrote on again another question.  I said after all, I would not believe that Mr. Green or Mr. Sippe would be so wicked as to swear that I said I knew Smart wrote the letter; he said they would, and he knew that a subpoena had been taken out for me at that very moment; he said ``I shall be amongst the parties before the trial of Isaac Simmons and Co. against Smart takes place."  There had been a trial about the matter, before I had the conversation with Mr. Green; and the conversation I had with Roberts was about a trial which was then coming on; Roberts said ``I'll take good care that you don't enter the Court before you see me; and I'll put you in possession of what happens among the parties, as I shall see them frequently in the mean time"; there ended the conversation about this matter, and he finished writing the paper, filled it up and gave it into my possession; this occupied about two hours, and in the course of that time, a big tall man came into the room; the man spoke to Mr. Roberts about some printed form to destrain for rent; I have since understood he was a bailiff for Mr. Roberts, and I recollect Mr. Roberts putting his hand into his pocket, giving him a shilling, and saying ``go and get one;" he told me to be particular not to mention anything of the matter to Mr. Smart or to Mrs Oliver, my daughter; the paper I hold in my hand is the one he wrote; I never did say to Green for Sippe that I knew Smart had wrote the letter; I knew nothing whatever about it, and that I told to Roberts repeatedly; I was not reluctant to give true evidence in the matter; I shall be sixty-three years of age on the eighth of next January; I consider myself in possession of my recollection and faculties, but this is so long since that I cannot recollect all the circumstances.

The paper with the questions and answers, was proved to be in the hand writing of Mr. Roberts.

Mr. S. Stephen for the defendant addressed the Jury at some length, contending that it was evident that Roberts had only acted as the friend of Kenyon in order to relieve him from the dilemma in which he was [p]laced, in consequence of having stated that he knew that Smart wrote the letter.  This fact he should be able clearly to establish by the evidence of two respectable witnesses, and he was confident that whether the course the de[fen]dant had pursued was wise or not, the Jury would perceive that he never had any intention of perverting the course of justice.

Mr. H. S. Green was called but proved nothing material, and no other witnesses were called for the defence.

Mr. a'Beckett shortly replied.

His Honor told the Jury that there could be no doubt, that an attempt to stifle evidence, or to induce any one to give evidence which is not correct, is an indictable offence, on the principle that an incitement to crime is of itself criminal.  If the Jury believed that Roberts intended to make Kenyon say what was not true, it certainly was an attempt to pervert the course of justice.  This being the law, it would be for the Jury after he had read the evidence to apply that law to the facts.  With respect to the counts for the assault, the law is, that if any person have an intention of committing an assault coupled with an ability to perform it, such as shaking a fist in your face or pointing a weapon at you, it as an assault, and with respect to the false imprisonment, if the Jury cons[i]dered that Mr. Kenyon was forced to sit down from the violence of the defendant it was a false imprisonment.  His Honor then commenced reading his notes of the evidence, but the Jury said it was not necessary and retired for about ten minutes, when they returned a verdict of Guilty on all the counts.

Mr. Roberts then entered into a recognizance, himself in £200 and two sureties in £100 each to appear on the 8th of June, to receive judgment.

Counsel for the prosecution, Messrs. a'Beckett, Foster, and Windeyer; for the defendant, Messrs Stephen, Therry, and Broadhurst.


Dowling C.J., Willis and Stephen JJ, 15 June 1839

Source: Australian, 18 June 1839


In the case of the Queen against Richard Roberts, Mr a'Beckett prayed the judgment of the Court.  The defendant was convicted of endeavouring to pervert the due course of justice by soliciting one Joseph Kenyon to give false evidence on a trial, the Queen v. T. W. Smart, and was admitted to bail to come up for judgment on the 8th instant, when the judgment of the Court necessarily stood over, on account of the press of business.

The defendant appeared on the boards, and Messrs S. Stephen, Therry, and Broadhurst, took several technical objections to the information in arrest of judgment.  Messrs a'Beckett, Foster, and Windeyer replied to the objections taken, and the Court finally over-ruled them, but granted the defendant until Friday next to put in affidavits in mitigation of punishment.


Dowling C.J., Willis and Stephen JJ, 21 June 1839

Source: Sydney Herald, 24 June 1839[2] 


Mr. a'Beckett moved that Mr. Richard Roberts, who had been convicted of endeavouring to pervert the course of justice might be called up for judgment.

On Mr. Roberts making his appearance, affidavits were handed in in [sic] mitigation, and read by the Clerk of the Court.  The affidavit of the defendant stated that having met Kenyon, he told him that he had been told that he had said that he knew Smart wrote the libellous letter upon Messrs. Simmons & Co., which Kenyon denied, and asked him how he should act; and in compliance with that request he advised him how to a[c]t in order to protect himself, and wrote down the answers which he was to give if examined; he never threatened to shoot Kenyon, but took up a pistol and said that he would rather shoot him than see him disgraced by a charge of perjury; he told him that the conversation was strictly masonic, and must not be mentioned; what he meant by saying that he would be in attendance when Kenyon was examined, was, that he would be there to keep him sober; he swore that he had no hostile feeling towards Smart, and no intention to pervert the course of justice, but simply to protect his friend Mr. K[enyon].  Mr. Joh[nson], clerk to the defendant's attorney, stated by affidavit that Green had told him that he had told Roberts that Kenyon had stated that he knew S[m]art wrote the libel.

Messrs. Stephen, Therry and Broadhurst, addressed the Court at considerable length in mitigation of punishment.  The principal facts on which they relied, were that it was evident that Roberts had not the slightest intention of endeavouring to pervert the ends of justice, and, although in what he had done he had no doubt acted foolishly -- like an ass, it was evident that his only intention was to prevent his friend, Kenyon, from committing himself, so as to be liable to a prosecution for perjury, or an action for defaming Smart's character.

In reply it was contended by Messrs. a'Beckett, Foster and Windeyer, that whatever motive might have actuated Roberts, it was evident that he had endeavoured to make Kenyon give false evidence which was clearly perverting the ends of justice, as charged in the information; with the motives of the prosecutor of course the Court had nothing to do, their duty being to enquire into the guilt of the defendant.

After their Honors had consulted a few minutes, Mr. Justice Willis delivered the judgment of the Court.  He said that the defendant had been convicted on incit[in]g one Joseph Kenyon, who he expected would be subpoenaed as a witness, to say that which he at the same time knew would not be the whole truth.  The Court could not but lament to see a man formerly so respectable convicted of so contemptible, so disgraceful an offence.  The object of human punishment is the prevention of future crime; it is not by the way of retribution, vengeance or atonement, but its object is to deter others from committing crime by the dread of it.  In order to make the prevention as effectual as possible, those offences are most severely punished, which it is the most difficult to guard against.  If it is supposed that the effect of punishment on a person of rank and education is different from what it is upon a person of different station, the reply is that punishment is not measured by the sensibility of the person on whom it is inflicted, but according to the evil inflicted upon Society by the committal of the offence, which is augmented by the rank of the offender.  Tamper[i]ng with witnesses is a misdemeanor of the highest clas[s], and one which the Court feared is too prevalent in this Colony, and as always been punished by the superior Courts with fine and imprisonment.  The sentence of the Court was, that Richard Roberts be imprisoned in Newcastle Gaol for one month, that he pay a fine of £50 to the Queen, and be imprisoned until the fine was paid.

Mr. Roberts was then removed to Sydney Gaol.


Dowling C.J., Willis and Stephen JJ, 14 June 1839

Source: Australian, 18 June 1839[3] 


In the case of the Queen against Richard Roberts, Mr a'Beckett prayed the judgment of the Court.  The defendant was convicted of endeavouring to pervert the due course of justice by soliciting one Joseph Kenyon to give false evidence on a trial, the Queen v. T. W. Smart, and was admitted to bail to come up for judgment on the 8th instant, when the judgment of the Court necessarily stood over, on account of the press of business.

The defendant appeared on the boards, and Messrs S. Stephen, Therry, and Broadhurst, took several technical objections to the information in arrest of judgment.  Messrs a'Beckett, Foster, and Windeyer replied to the objections taken, and the Court finally over-ruled them, but granted the defendant until Friday next to put affidavits in mitigation of punishment.



[1]  See also Sydney Gazette, 30 March, 4 May 1839; Australian, 30 March, 2 May 1839; and see R. v. Smart, 1839.

[2]  See also Australian, 22 June 1839, which gave more detail of the arguments of counsel, but none on the judgment delivered by Willis J.

[3]  See also Sydney Gazette, 18 June 1839.

Published by the Division of Law, Macquarie University