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

R. v. Batchelor [1842] NSWSupC 30

perjury - liquor laws, sly grog

Burton J., 12 January 1842

Source: Sydney Herald, 13 January 1842 [1]

            Mr. Purefoy appeared for the prosecution; and Mr. Foster, with whom was Mr. Windeyer, for the defence.

            Mr. Purefoy said that he appeared in this case in a somewhat new character, viz., as counsel for the prosecutor. The jury might have heard of the defendant as a party figuring rather prominently at Parramatta as a public informer. The circumstances of the case were these: The defendant had laid an information of sly grog selling against a female, his client, at Parramatta ; the charge, as he (the learned counsel) was informed, being utterly false and unsustainable. The party informed against was, however, convicted in penalties upon this information. Mary Saunders appealed to the Quarter Sessions at Parramatta, and the conviction founded on the defendant's testimony, was quashed by a majority of the bench. The learned counsel would first proceed to prove the conviction, then the evidence on which that conviction had been obtained, and finally, call witnesses, who would show, beyond a doubt, that that evidence was false; if he (the learned counsel), as he expected, should succeed in doing this, the prisoner must be convicted upon the evidence by the jury impannelled to try him.

            Edward Rogers, examined by Mr. Purefoy - Was clerk of the peace for the county of Cumberland ; produced the conviction of Mary Saunders for sly grog-selling; Messrs. Blaxland and Cotton were the Magistrates.

            George Langley, examined by Mr. Purefoy - Was Clerk of the Bench of Magistrates before the Petty Sessions; produced the record of the proceedings and read an entry of a summons issuing against Mary Saunders for an alleged breach of lst sect. of 2nd Vic., No. 18; that case was heard before the Magistrates; the prisoner now at the bar then swore on the usual oath, that he had purchased on the 27th May last, at the house of Mary Saunders, half a pint of rum; upon that evidence Mary Saunders was convicted; knows William Hunt, the Chief Constable of Parramatta; the information against Mary Saunders was exhibited by Hunt.

            Mary Saunders, examined by Mr. Purefoy - Is Wife of Thomas Saunders; she had lived twenty-three years at Prospect; knew Batchelor; recollected prisoner coming to her house on the 27th May in a white jacket, and asked for work; did not come into the house, nor within three yards of it; he never asked for or received half a pint of rum from witness; witness received a shilling out of no man's hand for rum on that day; there were other people about the house who would have seen prisoner if he entered the house, or had purchased rum.

Cross-examined by Mr. Foster - The name of the man who was jobbing about witnesses house was Henry Skinner; he was in and out, and in different parts of the house on that day, doing sundry odd jobs; Skinner had not given evidence at Petty Sessions; she had been driven into Parramatta by Henry Skinner, and should have used him if she had wanted him; Skinner had driven her also on the present occasion to Sydney, and would be called on if wanted; she had once given Cooper, one of Mr. Lawson's men, a glass of rum; never sold a glass to anyone in her life; knew a man named Hallen; he and his wife occupied a hut near her house; she had given wine, sago, &c., to Hallen's wife, never gave her spirits; the men who came to her house upon the charge of sly grog-selling, confused her so much that she scarcely knew what she said or did; never said to the officers who called that she had no rum in the house; she then had four bottles and a half of rum in her possession; the police drank up a bottle of brandy, and took away her rum, and afterwards returned her only three-quarter-water rum; kept rum not for herself, but for her husband, who could not do without it; he every day took a little rum, but never got drunk; he never used a glass in taking his rum, but put the mouth of the bottle into his own, and took a little when he wanted it. Her husband was under the doctors hands when the police called, and he took his physic in brandy.

John Belling examined by Mr. Purefoy. - In the month of May last, witness was living at Mrs. Saunders's at Prospect; remembered the 27th of the month; on that day was thrashing in the barn, the door of the barn was large enough to admit a load of wheat; the distance of the barn from the dwelling house was about thirteen yards; witness when in the barn must see any one entering the house; saw a man walk up to the house with a bundle; heard the dog bark; saw the person from the time of his walking up to the time of his going away; when the man came up, the dog ran out to the length of the chain, witness stood looking at the man, who never entered the house; believed that the prisoner was the man he saw; about half an hour after the man came, witness went to his dinner.

Cross-examined by Mr. Windeyer. - Was at his dinner about an hour; his wife dined with him; she went to Parramatta after dinner; did not lie down to sleep after dinner; was employed after dinner in making a flail at the door of the hut; his wife went away immediately after dinner; the hut was at the back of the house; there is no common entrance on the side of Mrs. Saunders' house opposite the hut; cannot swear whether the man he saw was the prisoner at the bar.

Henry Skinner, examined by Mr. Purefoy. - Was living at Mrs. Saunders's, at Prospect in May last; was there as a farm labourer; was about the premises during the whole of the day mentioned in the information; on that day saw a man with a light jacket and dark trowsers walking towards the buildings; could not say whether the man went to the house or not; before dinner, in the forenoon, witness was jobbing about the garden; saw no other person approach in the forenoon but the man with the bundle; believed that the prisoner was that man.

Cross-examined by Mr Foster. - Saw the man at first about fifteen roods from the house, and until he approached within ten roods of it; was not several times in the hut; had lived seven or eight months with Mrs. Saunders; she has two free men and two Government men.

Ambrose Hallen, examined by Mr. Purefoy. - Knows Mary Saunders, and has known her thirteen years; knows her premises; was present when the charge of sly grog selling was made by Batchelor against Mary Saunders; Batchelor had sworn that he bought a shilling's worth of rum of Mary Saunders.

Thomas Saunders, examined by Mr. Purefoy. - Was living at Prospect on the 27th of May last; was in the house the whole of that day; no stranger came to the house the whole of that day; the only person who approached the house was a man with the bundle; believed the man at the bar was the person he had seen.

Cross-examined by Mr. Windeyer. - Was never out of his house all day; was kept there, having taken castor oil.

This was the case for the prosecution.

Mr. Foster for the defendant extended, that there was no case for the jury. The information was required to allege, that the enquiry in which the perjury was committed, should be conducted before a court competent to take cognizance of the case. On the deposition in the present case, there was no such necessary averment; nor did it appear that Mary Saunders had ever pleaded in any way to the information. If there was no plea, there could be no legitimate enquiry, in any part of which the prisoner could have committed the offence for which he stood indicted, and thus allegations necessary to fix the guilt of the prisoner were neither alleged nor proved.

Mr. Windeyer followed on the same side, and contended, that whatever might be the terms in which the forms of indictment were drawn, it was clearly material that it should be shewn that the case in which the perjury was assigned to have been committed, should be proved to have been heard before a competent tribunal.

His Honor after consideration of the authorities referred to, thought that the objection must prevail, and therefore directed the Jury to return a verdict for the defendant.

[1] See also Sydney Gazette, 13 January 1842; Australian, 13 January 1842.

Published by the Division of Law, Macquarie University