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

Macdermott v. Smart [1842] NSWSupC 22

perjury - land law, fraudulent sale - malicious prosecution

Supreme Court of New South Wales

Stephen J., 17 February 1842

Source: Australian, 22 February 1842

In this case, the Solicitor- General and Mr. Broadhurst appeared for the plaintiff; Mr. Foster and Mr. Windeyer for the defendant.    

            Mr. Broadhurst opened the proceedings by reading the declaration, which set forth that this was an action of malicious prosecution on a charge of perjury, preferred against Henry M'Dermott by Thos W. Smart; that the said Henry Macdermott has been committed by Richard Windeyer, Esq., Magistrate, to take his trial on the said charge, and held to bail, and had been tried and acquitted; that the plaintiff had, by such prosecution, sustained much injury in body and mind. To this declaration the defendant had pleaded Not Guilty, whereupon issue was joined.

            The Solicitor-General, in stating the case, said, that it might not be necessary for him to say much respecting the parties, as he could not but feel that they were already well known to the jury, as they were parties of considerable notoriety in the Colony, apart from the attention which had been called to them by the trials connected with the circumstance of the present action. The position of character of the parties was, he believed, pretty well known; and the case had been so much talked of out of doors, that it would be folly to expect that they were not already acquainted with many of the circumstances. Still he should feel it his duty to bring the whole of the facts before them at the present time, and should wish every jot of evidence to be laid before them, as it was his client's wish that nothing should be kept back. It was also material in the present action that he should say something of the character of the parties, as the estimation in which they were held would influence the verdict which they would have to return. Of the character of Mr. Macdermott it would be unnecessary for him to say much, as it was too well known and appreciated to require comment from him. But, that very character, affected as it might be by the prosecution which he now had to complain of, rendered the injury more grievous than a mere matter of pounds, shillings, and pence could do, and therefore it was material for him to dwell a little on the circumstance of character. Mr. Macdermott, it was well known, was a merchant. He did not depend for his daily bread on chance speculations. His standing in society; his living depended on his character. His honour and integrity once impugned, and the means on which he depended were taken from him. Of   Mr . Smart it would not be necessary for him to say much in the state of the case, though he should endeavour to do his character full justice before he has done with him. He formerly was in business as an auctioneer, and, he believed, boasted of being a clever man in his calling, as he had, by his own statement, amassed considerable wealth in it. He had boasted of being a man of substance; that he was worth £50,000, and the jury do well to remember this boast in the consideration of their verdict. And, indeed, if all the acts of which Mr. Smart had been guilty had been so profitable as the one in which he was connected with the plaintiff in this action, it was no wonder that he should have amassed wealth. He should not now say more respecting Smart, but let the circumstances of this case speak for him, and then he felt he sure he should be enabled to knock his character down for what it was worth. He would now proceed to the facts of the case. This was an action for damages done to the plaintiff, by a prosecution for willful and corrupt perjury. It was one of those crimes which must, in a social community, ever be held in the most unmitigated detestation and abhorrence: and one that must hold up the guilty party to the scorn and execration of every member of society. It was one of those crimes which, in former times, was punished by mutilation and the pillory; and if the punishments of barbarous ages were justifiable in any instances, they surely were for offences of this description. In proportion to the heinous nature of the crime ought of course to be the reluctance of any party to accuse another of it, except on the strongest grounds. It was not on mere suspicion or idle gossip that a man should be led to prefer a charge like this. They would judge for themselves how far such motives had acted in the present case; and if they found the absence of fully reasonable and probable grounds, if they saw that the motives by which the defendant had been actuated, were those of malice, and not a desire of bringing Macdermott to justice, they would, of course, in their verdict, shew alike their sense of the injury done to the plaintiff, and of the extent of the defendant's criminality in the proceedings. He might have let the case rest on the ex parte statement, with which Smart went to the magistrates, but should not do so, as he was instructed to lay the whole facts before them. He should have to take them back in his statement as far as the commencement of 1838: which might account for any little inaccuracy in the memory of parties who gave evidence. In Jan., 1838, Macdermott was in possession of property in George-street, in connection with Mr. Nichols. Macdermott was desirous of selling this property, as he was very much in want of money. He put the property in Smart's hands, and obtained an advance of   £ 1500 on it. If the property did not sell Smart was to have a bonus of £40, and Macdermott was to take up the bills as they fell due; if the property was sold, Smart was to pay himself the advance and his commission account out of the proceeds. Macdermott called frequently on Smart, who told him he could find no purchaser. At last, Smart himself became a purchaser of the property for the sum of £2400, and an agreement between both parties respecting the purchase, was completed and signed on the 13th January, 1838; Mr. Macdermott hears nothing further about the matter till the end of 1839; he then discovers that Smart, instead of not finding the purchaser, had been the whole week (during which the negotiations between him and Smart were pending) in treaty with Mr. Mann respecting the property, and had actually concluded with him for the land for £3450, on the very same day on which the agreement between Macdermott and Smart was completed. On finding this out, he naturally felt indignant that he had been imposed upon, and expressed himself to that effect. The reason he did not find it out sooner was, that the conveyance of the property to Mann was not completed until October, 1839. Another reason was, that there was an understanding between Smart and Mann that the transaction should remain secret. The agreement between Smart and Mann would be found to bear the very same date as the agreement between Smart and Macdermott. On making this discovery that he had been cheated, Macdermott filed a bill in equity, for the recovery of the surplus money which Smart had received from Mann. The bill was met by Smart, on the plea that he had not been employed by Macdermott as an agent, but had been a bona fide purchaser, and that as such he had a right to treat with Mann. The best evidence that Smart could have had produced on this point, would have been the agreement which was drawn up between them in the presence of Mr. Rogers the attorney, when Smart advanced Macdermott the   £ 1,500. This document was left in Smart's custody, and although it would have been conclusive as to the point of the agency, yet it had never been forthcoming; it had been lost or destroyed; its absence was a ground of the strongest presumption against Smart; there had been a good deal of skirmishing between the attornies of the parties, and actions of slander had been commenced by Smart against Nichols and Macdermott. Mr. Nichols, as Macdermott's attorney, had applied to Mr. Rogers for the missing document, but was informed by him that it was lost; all the others were kept. On the 6th April, 1840, Smart filed a cross bill against Macdermott; and on the evidence of Macdermott on this bill, the charge of perjury was laid. The answers to this bill were made first in July, and then on the 6th October, 1840 ; but the charge of perjury was made till August, 1841, when the hearing of the equity case came on. Smart had known from October till August of what he termed the perjury in the evidence of Macdermott, and had remained quiet all the time, but as soon as the hearing commenced, thinking no doubt it would influence the decree, down posts Smart and precipitates himself into the Police-office with a charge of perjury against Macdermott. The learned counsel opposed to him would no doubt call their attention to the long deliberation of the jury; but he would tell them that this very deliberation only proved the more against the defendant, as there could be no doubt that that deliberation took place merely out of consideration for Smart. The learned Judge had, in his charge, told them the serious necessity of weighing well their verdict, for that it would clearly establish the charge of perjury against one of the parties; so that the very deliberation would tell against Smart, as by the deliberate verdict of a jury, the crime of perjury had been fixed upon him. The judge had expressed his satisfaction at the verdict, although prevented from saying much on the occasion, as it might have operated to the prejudice of the equity suit then pending. He would, therefore, call upon the jury, in their verdict, to show the estimation in which conduct like Smart's was held. He was a man of substance; was worth £50,000; let them remember this, for on this point only could they reach him. It was not the amount of damages which could compensate his client; the expense he had been put to by these proceedings had been very great; his physical comfort had also been infringed on by the loss of time and the anxiety which he had been subjected to. But these were nothing to the blow which had been aimed at his reputation, to the wound his feelings must have received by a charge like this, which might be thrown in his teeth through life, and might cast its taint on the reputation of his children, when they might be subject to the reproach of having pointed out to them in the public prints of a former day, the committal of their father on a charge of perjury. He called on the jury to think of these things, and then to give such damages as the wealth of the defendant warranted, for that was their only   means of hurting him, and shewing to Mr. Smart, and to the race of Smarts, for he supposed that such was to be hoped for, as Mr. S. had lately entered into the holy state, that though   the law says that people should not be intimidated from the prosecution of justice, yet that innocence should be protected from the attacks of malevolence and malice.  

            Charles Windeyer, Esq., was Police Magistrate; remembered Mr. Smart applying to him, and taking out an information for Macdermott, on a charge of perjury; Mr. Rogers the attorney was with him; the examination took place on the 25 th of August, 1841, and was concluded on the 27 th, 1841; Mr. Foster appeared at the Police Office as counsel for Mr. Smart, and Mr. Broadhurst attended on Macdermott's part; Mr. Foster had argued as to the materiality of the allegations; he had done so at the request of witness, and was replied to by Mr. Broadhurst ; the result of the examination was, that Macdermott was committed to take his trial, but was admitted to bail; the committal was made out on the 27 th of August; the defendant was in court when he was committed; did not know whether Smart or his council were; some equity proceedings were read ; they were got from Mr. Rogers; recollected saying that some of the assignments seemed doubtful; recollect saying the one respecting the sum advanced to Macdermott might be a mistake; Mr. Foster said it might have been, but that considering the many other points on which perjury was assigned; that it was reasonable to think that this had been sworn falsely also; should not have committed Macdermott on this assignment only; the depositions were sent to the Attorney-General; Macdermott applied for them to be sent early.

            Cross examined. - He committed the defendant on the whole body of the depositions and not on that of Smart only, they were all sworn before him, and signed by him; Smart's and Hughes' evidence were he believed the most material evidence, that induced him to commit the defendant. His opinion with respect to the sums paid, were altered by Mr. Foster's argument. Mr. Foster had said that had the assignment relative to the sums been the only one he should not have proceeded . Had heard the judge sum up at trial. Believe he decided that all the assignments were material. Had a vague impression that the judge said that malice could not be imputed to Smart . The judge summed up at length. Remembered the judge charging the jury to give the case careful consideration, as their verdict would implicate one of the parties in the crime of perjury; remembered His Honour dwelling on the non-production of the first agreement as suspicious.

            The other evidence for the plaintiff, which was principally of a recapitulatory nature being gone through, the Counsel for the defendant submitted to the Judge that there was no case made out against the defendant; but His Honour said that he should decidedly send it to the jury.

            [For want of space, owing to an influx of advertisements, we have been compelled to postpone the remainder of the trial.]                           

Source: Australian, 24 February 1842

Mr. Foster said, that in addressing the jury, he should endeavor to prove to them that there was no case substantiated, which could lead them to believe that the prosecution complained of by the plaintiff had been preferred on malicious grounds ; a case had been cited by his learned friend, and he would quote another similar to it, in which he had striven to show the analogy between them and the present case, but this analogy did not exist. These cases went to show that there did exist on the minds of the prosecutors, knowledge that tended to destroy the probable cause which existed for the prosecution. Now, there was no similarity in this respect between these cases and the one under their present consideration. The learned gentleman here enumerated the allegations of perjury, and contended that these were not peculiarly within the knowledge of Smart, with the exception of the one relating to the payment of the money in advance; and on that one, which had been decided by the learned Judge at the former trial to be material, the plaintiff was fully proved to have sworn incorrectly. Other witnesses did swear in contradiction to the evidence of Macdermott; and whether he swore falsely, willfully, and corruptedly or not, was not to come within Smart's knowledge more than others. He had heard Hughes and Mann swear to certain points, which had confirmed his own doubts as to the truth of Macdermott's evidence. It was not to try whether Macdermott was guilty of perjury ; it was not to confirm or annul the decree in equity that they were assembled: it was merely to prove that the allegations of perjury against Macdermott by Smart were not based on reasonable and probable grounds. His learned friend had, in his address, introduced his client to their notice in great pomp and form, by telling them that he required no introduction. He perfectly agreed with his learned friend, that his client required no introduction. The ambition for public notoriety which he so broadly evinced in every action of his life, had already gained for him a sufficient and not very enviable share of public attention. The insinuations that had been cast upon his client, he should not take the trouble to reply to. He had told them that he was an auctioneer, and had made money by his trade, and had been very smart   [ u] pon old Smart and young Smarts; but he should like to know if there is anything suspicious or singular in Mr. Smart having been successful in his auctions, which his learned friend had most certainly not been, as he had been obliged to postpone the disposal of that lot which he had previously threatened to knock down. A good deal had also been said of Macdermott being a merchant, as if the calling insured him a high standing in society; but he was an older colonist that his learned brother, who would not, perhaps, have dilated so much on this point had he known as well as he the circumstances under which many in this community had grown into merchants. He did not mean to insinuate anything as to individual conduct, but merely to remind his learned friend, " that they who live in glass houses should not throw stones." His learned friends had said that they had acted from instructions; and considering the source from which those instructions emanated, no one would doubt the fact. It was these instructions that had caused the present lengthy and tedious proceedings, when the case might readily have been disposed of in half a day. They had had all the voluminous papers and documents read over; they had heard a reporter in the box reading his notes taken down at the last trial, and for what possible purpose, he could not make out, except for the pleasure it must afford Macdermott in hearing his name repeated over and over again. With regard to what had fallen from the learned judge, and the verdict of the jury on the former trial, it would be unnecessary for him to remark how often jurors felt obliged to acquit a man whom they felt in their hearts to be guilty. The position that Macdermott was innocent of the perjury alleged against him will not stand for one moment. It was a principle of English law, that it was better for ninety-nine guilty persons to escape, than for one innocent person to be punished. It had also been said by Mr. Windeyer, in evidence, that he had a vague impression of the judge having said that there was no ground for censuring Smart for malice in the prosecution. The observations of the judge were, however, on points unconnected with law, entirely extra-judicial, and were only to be looked on in that light. But it was not the question, whether the former verdict was right one or not. The question was, was there probable reasonable cause for the prosecution. As for the motives of malice, his Honor would tell them that malice, in the eye of the law, had nothing to do with the feelings Smart might entertain towards Macdermott, so long as they did not induce him to bring a prosecution against him without some substantial reason. The entire want of probable cause, might imply malice; but malice, according to the construction put upon it by the law, could not exist whilst such cause did not exist. But the case here was entirely the other way. There had not been one shadow of evidence to show a way of probable cause in any one of the allegations of perjury. His learned friends had gone into the whole merits of the case, they had expressed their wish to keep nothing back, to lay the full facts before the jury, and yet they had kept back the whole of such portions of evidence which would substantiate the allegations. Gentlemen of the jury would be enabled to see how far their actions had accorded with their professions. But this was in accordance with their instructions, and the source of those instructions, let them consider, whence those instructions came from, and judge how far this action brought in a revengeful, grasping, and tyrannical spirit, accorded with those principles of high liberality, those sentiments of highmindedness, of extension of rights and privileges, so paraded to the world by the plaintiff. With regard to the question as to whether Smart had been engaged as agent for Macdermott or not, had nothing to do with this action. Supposing Smart to have been employed as an agent, would that justify Macdermott in swearing falsely on the evidence? It was no justification of perjury to say that it had done no good, that the trial would have been gained without it. It had also been urged by counsel that Smart's not prosecuting Macdermott earlier, was a ground of suspicion against him. But he (Mr. Foster) thought that this was a strong proof of the proper, cautious and temperate manner in which Smart had proceeded. It is true he had heard Macdermott's evidence before, and had no doubt in his own mind that parts of that evidence were false; and at the hearing when he heard that opinion substantiated by the evidence of Hughes and Mann, when he found that Macdermott had told the same tale to others which he had told to Smart, and had denied in his evidence, it was clear that Smart was justified [in] his proceeding, and therefore the eloquence of his learned friend, who had been so indignant at what he termed his precipitation of himself into the Police Office, was altogether thrown away. The learned counsel then proceeded to take the whole of the allegations separately, and proved that the evidence of different parties went to substantiate the same, and that the fair conclusion was, that when so many points were found in which it was evident there had been false swearing, that there was just ground for believing that Macdermott in this action had been guilty of willful and corrupt perjury. With regard to the bargain made by Smart they had nothing to do with it, whether it was a good bargain or a bad bargain. Nor was it matter of importance in this action, whether the evidence of Hughes or Mann, or any of the evidence was true or false. That evidence went in support of the allegations, and consequently was amply sufficient to shew that there was reasonable and probable cause on which the prosecution for perjury was commenced.

            His Honor the judge in summing up, proceeded to state the law of the case to the jury. They must remember that this trial was not as to whether Macdermott was guilty of the perjury or not, neither was it to determine the questions involved in the equity suit then pending. It was their duty to examine well the allegations of perjury alleged against Macdermott, and to fairly weigh the evidence in support of such allegations, and if they thought that the evidence afforded reasonable and probable cause for such allegations, they must find a verdict for the defendant. If however, they should be of opinion that any one of the allegations was groundless, it would be their duty to find for the plaintiff, although if the other allegations were substantiated, it would of course influence them in the amount of damages they would give. A good deal had been said on both sides as to the existence of malice in the prosecution, and it was well that they should be fully aware of what the law construed as malice, and what it did not take cognizance of.   The grounds for an action on a malicious prosecution, were these. The absence of probable and rational cause for such prosecution and the existence of malice in the mind of the prosecutor, which urged him to proceed against a party apart from the desire of attaining the ends of justice. The first of these grounds implied the latter, but the latter might exist without the first. The absence of all reasonable and probable cause, did in the eye of the law, imply malice. But there might exist malice in the mind of the prosecutor, though he still had reasonable cause for his prosecution, and such a feeling they could not recognize as adverse to the defendant in the present trial. His Honor then proceeded with much impartiality and minuteness to go through and explain the evidence which had been taken. He then read an abstract of the bills and answers which had been filed, and also the depositions taken at the Police office, carefully pointing out to the jury such points as related to the present case. It was his duty to refrain from expressing his opinion on either side; but it would be for them to judge whether the evidence of Hughes and Mann was of such a nature as warranted Smart in the prosecution he had instituted.

            The jury retired for a few minutes, and returned a verdict for the defendant.

Published by the Division of Law, Macquarie University