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

R. v. Harper [1840] NSWSupC 40

perjury, Kurrajong

Supreme Court of New South Wales

Stephen J., 6 August 1840

Source: Sydney Herald, 7 August 1840[1]

Before Judge Stephen and a Jury; Crown prosecutor Mr. Carter.

            George Harper, free by servitude, a sawyer of Kurrajong was indicted for wilful and corrupt perjury, in having on the 28th of May last, before Josiah Allen Betts Esq. a Magistrate of the Territory at Windsor, made an affidavit charging John Dalley and John Woodrop both of that district, with maliciously firing at and wounding one James Duffy a resident in that vicinity on Easter Sunday.  It appeared that on Easter Sunday night, while Duffy and his family were sitting round the table, something made a noise on the roof of the house, which induced him to go to the door and see what caused the noise, when he was instantly fired at and wounded by slug shot, several of which were subsequently extracted from his body, and others from the door.  On hearing the noise Mrs. Duffy and another female immediately ran out, when another discharge from a gun or pistol took place, and Mrs. Duffy also received several slugs in her body.  In order to discover the perpetrators of this outrage, Duffy subsequently offered a reward, but no clue leading to their detection was discovered until the prisoner called on Mr. Betts, and informed him that while passing along a road in the vicinity of Kurrajong late it the afternoon of Easter Sunday, he saw a fire a little off the road, and going up to see what it was, he perceived that it was a dead tree-on fire, and that there were two men there, one named Dalley and another named the Conjuror who had an old metal pot on the fire.  After he had spoken to them a few words, the Conjuror took out a clasp knife with which he drew a small strip on the ground about a quarter of an inch deep and eighteen inches long, into which he poured some melted lead from the pot; he afterwards picked up the cold metal and began cutting it up into slugs.  While the conjuror was doing this, the other man, Dalley, was busy cleaning an old musket, when Harper asked them if they were going a Kangarooing to which the Prisoner replied "Yes, we are going to look after a kangaroo that has done for many a one."  They afterwards stated, that they had better get on their way, as the other man would be waiting for them.  He also swore, that when the conjurer proceeded to gather up the slugs, one of them fell again on the ground, which he again took up, and, holding it between his fingers, said, "If the old growler, Duffy, gets this in him, it will make him wonder what is the matter with him;" after which he left them, and they went in the direction of Duffy's house.  It also appeared, that there was a report in circulation that Duffy could not prosper, as he had been cursed by the priest, and had told the prisoner Harper of the Priest's having so cursed him.  In consequence of this information, a warrant was issued, and the men Dalley and Woodrop were taken into custody, and remanded for examination till the 2nd of June, when the prosecutor again made oath of the truth of the above statement as contained in his affidavit, and also identified the prisoners, then in the dock at Windsor, as being the parties alluded to in his affidavit.  In defence, the men, Dalley and Woodrop, adduced a number of witnesses, who clearly proved, that on Easter Sunday they never were out of their company on that day, and, consequently, could not have been either at the burning tree or at Duffy's.  It was also proved before the magistrates, that on the night in question, Harper was in liquor, and had sworn that he was perfectly sober.  In consequence of the prisoners having so clearly established analibi, the magistrates committed Harper to take his trial for having committed wilful and corrupt perjury.

            Before putting the case to the Jury, His Honor enquired of Mr. Carter, if he had no more proof to make out the first allegation contained in the indictment, as, though it had no business there, yet its having been inserted, entitled the prisoner to have it proved.  He lamented exceedingly that the modern practice in England, with respect to informations for perjury, had not yet been adopted here, as it was not necessary to enter into the details of the case in which perjury was alledged to have been committed.  He considered the present was as gross a case of perjury, and as malicious a proceeding on the part of the prisoner, as ever had come before a court, and he was afraid, he might escape through a legal loop hole, but if he did so, he should take care that he should be the last, as within twenty four hours he should have a measure ready for the Legislative Council to enact, for the purpose of preventing any prosecution before the Supreme Court in future, from being quashed from informality.  He then went over the case and reserved two points that presented themselves in the prisoners favor through the informality of the information.  The Jury returned a verdict of guilty against the prisoner, subject to the decision of the Judges, on the points he had reserved.  The prisoner was ordered to be brought up to day at ten o'clock, to receive sentence, as was also the boy Power, who had been convicted of attempting to administer poison.

Dowling C.J., Willis and Stephen JJ., 7 August 1840

Source: Australian, 11 August 1840

            Before their Honors the three Judges. George Harper convicted of wilful and corrupt perjury, was sentenced to transportation for seven years, and recommended to be worked in from during the whole period.

Notes

[1]              See also Australian, 8 August 1840.

Published by the Division of Law, Macquarie University