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

R. v. Stewart [1840] NSWSupC 83

forgery, insanity, criminal defence

Supreme Court of New South Wales

Dowling C.J., 9 November 1840

Source: Sydney Herald, 10 November 1840[1]


William Stewart, late of Parramatta, was indicted for having, on the first of August last, committed a forgery with intent to defraud one Christopher Mooniz, a publican residing on the Western Road.  The order purported to be drawn by Mr. William Kerr, in favor of William Stewart, for the sum of £2 and was addressed to the Cashier of the Bank of Australia.  When the prisoner was called on to plead he behaved in the most insolent manner to the Court, and said he was anxious to be tried by a military jury.  His Honor informed him, that he must be tried by a civil jury.  The prisoner then said he thought he had a right to be tried by a jury of Officers, and as he could not get them he would not say whether he was guilty or not.  His Honor called on Mr. Keck, who stated, that the same line of conduct had been persisted in by the prisoner from the time he had been in custody, and he had good reason to believe it was all assumed on his part, as when brought to the gaol he had tried playing the part of the maniac, but, when threatened with irons he became quiet.  His Honor told the prisoner that he must behave in a proper manner as he would do himself no good, on which he said he did not care for any thing he could do to him.  His Honor said if he did not behave properly he should order him to be tried in irons; the prisoner replied, that he did not care for that, and called on the constable to put the handcuffs on him; His Honor directed the constable to make the prisoner stand properly, on which he began a long oration about the gaoler having ill-used him.  After the jury had been sworn in,-

            The Attorney-General called their attention to the conduct of the prisoner, and informed them, that if they were of opinion that the prisoner was insane they would return their verdict accordingly, when he would be confined until Her Majesty's pleasure be know respecting him.

            The prisoner here broke out in a rage asserting that he was not mad, but had been persecuted ever since his arrival in the Colony, and said that all the prisoners in the cage could prove that he had behaved himself well, till they put twenty pounds of irons on him in gaol.  He also kept rolling and loitering in the dock, during the whole of the trial evidently for the purposing of impressing the Jury with the idea that he was insane.

            From the evidence of the prosecutor it appeared that on the 1st of last August, the prisoner went to his residence, about two miles from Parramatta, on the Western-road, where he had something to drink as well as some bread and tea, amounting in all to about four shillings worth: he then requested a bed to be prepared for him and said that he was going to sell some sheep and stock, and tendered the check in question in payment, saying that he had taken it at "Jamie the Jockey's" on the preceding part of the day.  The prosecutor then told the prisoner to write his name in the back of the check, which he did, when he (Mr. Mooniz) was struck with the similarity of the signature, and the writing on the body of the check.  Suspecting however, all was not right, he ordered a bed to be got ready for the prisoner, who also told him that he was a partner with Mr. Kerr the lawyer, and had plenty of money in the bank.  After the prisoner had gone to bed two constables happened to call, when one of these being a scholar was shown the check, and he told the prosecutor that it was a forgery; it was then arranged that enquiry should be made at "Jamie the Jockey's" as to whether the check had been taken there; on the following morning the prosecutor rode to "Jamie the Jockey's," and was told that no such check had been seen in his house; on returning to his residence he found that the prisoner had left, but having been seen he was pursued and overtaken at Mr. Lawson's gate, when he was invited to return in order to get his change.  On the way back the constables met them, and he was told that that the constable would give him his change: he was committed at Parramatta on the following day, Mr. Kerr being one of the committing Magistrates.

            It appeared, that the prisoner, up to the time of his arriving in Sydney, behaved in a very sensible manner, and had, in the opinion of the witnesses, been only pretending insanity at the bar.

            After the case for the prosecution had been closed, His Honor asked the prisoner if he had anything to say in his defence; when he replied that he had not, as he did not think that he would be transported for the forgery, even if the jury found him guilty.  He said, he did not care two pence about being sent to a penal settlement for life.  In putting the case to the jury,

            His Honor said, that at first he had been of opinion that the prisoner wss[sic] not of sound intellect, but from his conduct during the trial he had seen enough to convince him that the prisoner was sane enough to know the difference between right and wrong.  He then told the jury, that the only grounds on which they could acquit the prisoner was that of insanity.  The jury immediately returned a verdict of guilty.

            When sentence was about to be passed on the prisoner, he said, he did not care for any thing that could be done to him, as his father had been transported before him.  He was then sentenced to be transported to a penal settlement for his natural life; for which, the prisoner said he was much obliged to his Honor.


[1]              See also Australian, 12 November 1840.

Published by the Division of Law, Macquarie University