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

R. v. Herbert [1840] NSWSupC 21

forgery, criminal procedure

Supreme Court of New South Wales

Dowling C.J., 20 May 1840

Source: Australian, 23 May 1840[1]

            Henry Herbert was indicted for forging the indorsement of James Byrnes, of Parramatta, to a promissory note purporting to be drawn by Herbert in favor of Byrnes, at three months date, for the sum of £115, and with uttering the same with intent to defraud John Harrison. The prisoner had before been indicted and convicted upon an information charging the promissory note itself to have been forged, but the evidence upon the trial establishing that the note was genuine, their Honors ruled that the variation was fatal, and ordered judgment to be arrested. The particulars of the case, which have already been before the public, are briefly these:- The prisoner is a young man possessed of some landed property in the town of Parramatta, and was considered as a person of responsibility, in a mercantile sense of the word. He had, some considerable time previous to the present transaction, bought a team of horses of Mr. John Proctor, chief constable of Penrith, and paid for them in a promissory note indorsed by Mr. James Byrnes, a merchant residing at Parramatta. About the middle of the month of March last, he went to Mr. Proctor's house, and bargained with him for the purchase of a team of four horses, with harness, for the sum of £230, which he proposed to pay by a promissory note at three months date, bearing Mr. James Byrne's indorsement. Mr. Proctor requested that he would draw two notes of equal amounts, for the sum, for the purpose of more convenient negotiation, and the prisoner returned to Parramatta, avowedly for that purpose. On his arrival in Parramatta, he went to a tenant of his, named Green, and representing that he had made a purchase of horses from Mr. Proctor, requested him to draw out two promissory notes for £115 each, in favor of Mr. Byrnes, who, he stated, had promised to lend him his indorsement. Green did so, and the prisoner was about to sign them, when Green observed to him, "as you are but an indifferent writer, you had better sign the notes in Mr. Byrne's presence." The prisoner then took away the notes unsigned, and on the same day went to the residence of a man named Ewans, a copying clerk, and presenting to him two pieces of paper folded up, requested him to direct them to James Byrnes. Ewans asked, "Shall I direct them to Mr. James Byrnes, or James Byrne, Esq." but the prisoner replied that "James Byrnes" alone would do. Ewans then wrote the words "James Byrnes, Parramatta," on the two papers without looking at the contents, and concluded them to be trades men's bills. A day or two after this, the prisoner went to Mr. Proctor for his horses, and tendered two promissory notes at three months date for £115 each in payment, but Mr. Proctor observing that these were not printed notes, as the former one was, hesitated about taking them, and finally rescinded the bargain, saying he had altered his mind, and would not sell his horses. The prisoner then went to Mr. John Harrison, a publican residing at South Creek, and through his agency purchased two horses, giving him in payment one of the two notes for £115, which he had before tendered to Mr. Proctor. In a day or two after, Harrison, from some suspicion which had been created in his mind about the sufficiency of the note, came down to Parramatta, and had an interview with the prisoner. While they were standing opposite the Court house, Ewans, as it would appear, accidentally came by, and after Harrison had parted with the prisoner he entered into conversation with him. Harrison shewed Ewans the writing "James Byrnes, Parramatta," on a piece of paper, and asked him if he knew the hand writing? Ewans immediately said it was his, and on looking at it, found it to be a promissory note for £115. The parties then separated, and in the course of the day Ewan met the prisoner and Harrison together, and seizing the former by the arm, said "you infernal scoundrel, what do you mean by taking in an old man like me? I have a great mind to take you into custody." The prisoner begged he would not do so, upon which he asked him what he had done with the two papers he had addressed for him? He replied that one of them was destroyed, and that if he would go with him to Watsford's public-house, he should see him destroy the other. He did go with him to Watsford's, where the prisoner pulled a piece of paper out of his pocket, (what it was, Ewans was not near enough to see) and tore it into pieces. It appeared from other evidence, that the prisoner and Harrison had, previously to this, been at another public-house (Mr. Dalzell's) where they had some writing transactions between them, and that some note or paper had been there torn up by Harrison. It also appeared that Green, hearing this, had questioned the prisoner what note it was that had been so torn up, and that the prisoner replied it was a promissory note of his own for a small sum which he had borrowed from Harrison, who not being satisfied with his personal security, he had sold him his horse in lieu, and destroyed the note. It further appeared that Harrison afterwards got possession of the two horses formerly purchased by the prisoner through his agency, together with the one which belonged to the prisoner himself. The information described the instrument, upon which the alleged forged indorsement was written, to be in the following terms: "21st March, 1840. Three months after date, I promise to pay to Mr James Byrnes, or order, the sum of One hundred and fifteen pounds for value received. - Henry Herbert." The prisoner's counsel, Messrs. a'Beckett and Foster objected to secondary evidence of the contents of the note, until full proof of its destruction had been given. They admitted that a note had been proved to have been destroyed by Harrison, but only Harrison himself could prove what that note was, and they contended that the Attorney-General was bound to produce him as a witness to support that necessary part of the case, without which it must fail in point of law. The Attorney-General replied that against Harrison there was already an information upon the file of the Court for compounding this particular felony, by accepting a horse from the prisoner as an inducement to forego prosecuting him for the forgery, and if he were to be put into the witness box, he was not bound to criminate himself. The prisoner's counsel on the other hand, contended that he was in every respect a competent witness, and that before the Attorney-General could give secondary evidence of the contents of the alleged forged note he must give the best evidence of its destruction. That best evidence was to be given by the party who it was alleged had destroyed it, and until he was produced, evidence of its contents could not be taken. His Honor agreed with the counsel for the defence that he could not, without violating one of the first principles of the law of evidence, permit parole testimony of the contents of a written instrument, without the best evidence in the power of the prosecutor being given of its destruction. He thought, therefore, that the evidence of Harrison was indispensible in a legal point of view. Evidence was then given of the contents of the promissory note, but the witness gave different versions of it. Green described the notes he had written at the request of the prisoner, in the same terms as the one described in the indictment, with the additional circumstance of their having been made "payable at the stores of Messrs. James Byrnes and Co. Parramatta." Ewans did not appear to know the hand writing of Green, and when Harrison showed him the note upon which his hand writing of "James Byrnes, Parramatta" appeared, he only saw the instrument for a moment, and could not say whether it was payable to James Byrnes, or order, or James Byrnes, or bearer - and could not say whether it was signed Henry Herbert, or Henry John Herbert. Harrison swore positively that the signature of the drawer of the note he received from the prisoner was Henry John Herbert. At the close of the case for the prosecution, the counsel for the prisoner contended that there was not sufficient proof of the identity of the note described in the information, in point of law, to warrant the Court in sending the case to the jury - both as the variation of the christian name of Herbert, and as to whether the note was made payable to James Byrnes or order, or James Byrnes, or bearer. After hearing argument on both sides, His Honor gave his opinion that the description of the note had not been sufficiently proved in point of law to enable him to put the facts to the jury. Whenever the prosecutor undertook to describe a written instrument in an information, he was bound to prove it as described, and any or the slightest variation between the allegation and the proof was fatal. This was not a case of a balance of testimony between witnesses for the Crown, and witnesses for the prisoner, which he could leave to be determined by the jury, but a distinct description of the instrument necessary to support the indictment, given by the witnesses for Crown themselves. He also thought there was one essential link wanting, to connect the instrument, when complete, with the prisoner. When Green wrote the body of the notes, they were not signed by the prisoner, nor indorsed by Mr. Byrnes, and when Ewans wrote "James Byrnes" upon the two pieces of paper, he did not know what they contained, or whether they contained any thing else at all. When he saw the promissory note, on which his address "James Byrnes" was written, it was in the possession of Harrison, and not in the possession of the prisoner, so that no trace of the note, in its complete state, was established against the prisoner. His Honor regretted, for the purposes of justice, that he felt himself bound (acting with the strictest principles of law,) to withdraw the case from the consideration of the jury. If he acted otherwise, his decision might hereafter be looked upon as a precedent, and any innocent person might be made to suffer from its effects. He therefore directed the jury to return a verdict of acquittal. The Attorney-General said he would take time to consider whether he would indict the prisoner again, and the prisoner was remanded for that purpose. On the following morning the Attorney-General stated that he had attentively considered the subject, and found the case, after His Honor's decision, so clouded with difficulty that he could not see his way through. He would therefore decline to prosecute this case further against the prisoner Herbert, and of course also against Harrison. The Chief Justice admitted that the case was altogether a novel one, and of great difficulty, and bore testimony to the Attorney-General having done all in his power to prosecute the offence to a conviction. Both prisoners were then discharged with an admonition as to their future conduct. His Honor told Herbert that it was owing to the legal difficulties that his crafty conduct had in all probability occasioned, he had been spared from passing the remainder of his days at a penal settlement. To Harrison he said that he had doubtless been the means of frustrating justice in the former case, and he should therefore recommend for the consideration of the magistrates how far he was entitled to hold a publican's license for the future. Both prisoners were then discharged, and the court adjourned sine die.


[1] See also Sydney Gazette, 23 May 1840 and Sydney Herald 25 May 1840.

Published by the Division of Law, Macquarie University