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

R. v. Jones [1842] NSWSupC 35

forgery - trusts - reception of English law, criminal law

Supreme Court of New South Wales

Burton J., 13 January 1842

Source: Australian, 15 January 1842 [1] 

George Jones was placed at the bar, under an indictment of having on the 2nd of September, 1839, forged a certain promissory note on the Bank of New South Wales, for the sum of £300, in the name of Abraham Polack, the same having been done with intent to defraud the said Abraham Polack.

Messrs. Foster and Windeyer conducted the case for the prosecution, and Mr. Broadhurst for the defendant.

Mr. Foster, in opening the case, stated that he had been instructed by the Attorney-General, in connection with his learned friend Mr. Windeyer, to prosecute in the present case. He would briefly state to the gentlemen of the jury, of what the alleged forgery consisted. The prisoner Jones had been a clerk in the employ of Mr. A Polack, and upon that gentleman's departure to England, he had left with him a paper containing a request to the trustees he had appointed to wind up his affairs here, to pay a promissory note in favour of Jones, for £60 only. On the same paper underneath, after a blank space was the signature of A. Polack, the blank being left, in order that Jones might fill up a promissory note to the amount before-named, £60. Now it appeared that instead of filling up this bill in the amount of £60, agreeably with Polack's instructions, Jones had filled it up in the amount of £300. In the examination at the Police-office, there had been some difficulty started as to there being any proof that this was forgery, but that this was the case there could exist no doubt. The learned gentleman then cited a case in point, where the excess of authority in filling up a blank for an amount of money, was declared a forgery. Now, according to this, it was impossible but that Jones, the prisoner, must clearly be convicted of forgery. Mr. Polack had carried on business here as an auctioneer, and Jones was his managing clerk. In December, 1839, Mr. Polack determined to leave the colony, and appointed four gentlemen, Messrs. Jones, De Mestre, Dacre, and Egan, trustees to wind up his affairs. He accordingly left on the 3rd of December, 1839. On the 28th of November, five days previous to sailing, he gave Jones the writing in question. The first part of that document (which he called document A), was simply a note addressed to his trustees, requesting them to pay a promissory note for £60 to Jones, and signed by Polack. He should prove, however, that on the same paper that this was written, there was another signature of Polack written on a blank space, left for the express purpose of filling up the promissory note mentioned in the first part of the document. If the jury believed the evidence Mr. Polack would give on the present occasion, a clear case would be made out at once; but he did not rely on that evidence, positive as it was, to bring the case home. There was a variety of circumstances which he should bring forward to confirm that evidence; he should shew that a few days after the departure of Mr. Polack, the prisoner had called on Mr. Poole to borrow a few pounds, and had exhibited to him the document in question, when it contained both the note to the trustees and the blank signature. He (Mr. Poole) would prove how, on a subsequent occasion, Jones had placed the document in his keeping, as security, and when he asked what had become of the blank signature, Jones told him he had it, and would call and shew it him, but did not keep his word. He should call their attention to a variety of circumstances; the texture of the paper, the form, and so forth, to lead them to the conclusion that the document A, which was Polack's note to the trustees, and document B, which was a bill purporting to be drawn by Polack in favour of Jones, for £300, were originally on the same sheet of paper. In fact the corroborative evidence he should be enable to bring was so strong, that he only cared for Polack's evidence because without it he could not make out a legal case. He relied on other circumstances to bring the charge home to the prisoner. It was true that Polack had not brought the charge against Jones immediately on his return here, but he had, no doubt, had much to occupy his mind and time in the arrangement of his affairs, which prevented him from doing so as promptly as he ought to have done. It would be argued, no doubt, that Jones was in the constant habit of filling up blank signatures for Polack, and had never abused such confidence; then Mr. Polack was on the spot, and ready to prosecute for any such attempt, but it was a very different thing when he had left the colony, probably never to return. It would also, without doubt, be argued that Polack had been heard at different times to promise the prisoner Jones a bonus of £200 or £300, and it would probably be attempted to prove that this bill had been given Jones, in fulfilment of that promise; but he (Mr. Foster) looked on this very circumstance as one likely to induce the committal of the forgery, as the promise could be held up as an excuse, if any objection should be made to paying the bill. It was true that the evidence of Mr. Wedderburn, whom he should place in the box, would tend to prove this, but it was not on the character of his evidence that he relied or cared for. He should not now detain the Jury longer, but would proceed with the evidence.

Abraham Polack sworn, examined by Mr. Windeyer - Carried on business as an Auctioneer in Sydney up to December 1839; the paper now put into his hand was his writing; it was a note to his trustees Messrs. Jones, De Bestre, Dacre, and Egan, dated 28th November, requesting them to pay a promissory note of his in favour of the prisoner Jones for £60; the signature to it was his; believed he had appointed these trustees on or about the 25th of November; it was previous to his writing the note; the paper was not in the same state that it was when he wrote the note; there was at that time another signature upon the paper lower down, with a space left blank; the signature on the paper B was his signature; the writing on the paper B, as in the form of a promissory note on the Bank of New South Wales, for £300, in favour of Jones, dated September 2nd 1839; could not swear that the signature to the bill was the same as he had made on the paper attached to document A; the body of the bill was in the hand writing of Jones; he had never given Jones a bill for £300; had never given him any authority to make a promissory note for that amount; had given him instructions to fill up the blank signature for £60; that was what was referred to in the note to his trustees, which he held in his hand.

Cross-examined by Mr. Broadhurst - To the best of his belief the note was written on half a sheet of foolscap; could not swear that the papers A and B were once one sheet of paper; should think they were; would swear that he had written the documents on the 28th of November; appointed trustees two or three days before; had never attempted to run away from the colony; remembered the ship Christina; was never on board her; did intend to go by that ship; she left Sydney about ten days before I left; had not appointed his present trustees at that time but had appointed other trustees; he believed those trustees were Messrs. Jones, De Mestre, Egan, Dacre, and P. W. Flower; had drawn up a Deed with them; his luggage was on board the Christina; a warrant was put in force on him at twelve o'clock on a Saturday night under which he was taken to the police office; would swear that the major part of his trustees knew of his intention of going by the Christina; left his house on the 29th of November, and sailed on the 3rd of December, in the Mary Anne, for Valparaiso; prisoner had been in his employ since 1833 or 1834, say five or six years; was a confidential man, and in the habit of transacting witness' most important business; had often entrusted him with his blank signatures; it was during business hours that he wrote the documents in question; was not certain whether Mr. Egan was present, thought he was, and saw and heard what passed; had repeatedly promised prisoner a bonus; remembered prisoner wishing to go to England, and had told him if he conducted himself well he would give him a handsome bonus; prisoner did not go to England per Christina, because he, witness did not; had said he would give him £200 £300 or£400; did not think any body but Mr. Egan was present when he wrote the document; returned to the colony on or about the 11th of June last; heard of the alleged forgery instantly on his arrival; had heard of it before; declined answering how; preferred the charge at the police office in October; had not been engaged as an auctioneer since his return; had wished to get Jones to come and make up his books for him; did not wish to get him away from his situation; he had not come; said he was two busy; would swear that he had never seen or sent to Jones since his committal; did not think that he wrote any blank signatures except the one he gave to Jones between the sailing of the Christina and Mary Anne; would not swear that he did not; could write besides his signature; had received a liberal education; Jones was constantly with him during the interval of the ships' sailing; believed his credit was good when he left; was not aware he had ever done anything to injure it; his pecuniary credit might be somewhat blown upon, but when the press and the public combined to damnify a man without a hearing, that was a common consequence; recollected a warrant of attorney from John Thomas Wilson to me being set aside; counsel attended on the part of witness to protect his interest; believed Mr. Egan had the deed which he had executed in favour of his trustees; had been threatened with several actions since his return; one on the part of a person named Bryan within two months of his return to the Colony; declined to state what the grounds of that action were; Jones could have given evidence in that action, and might have been called as a witness against him; Jones was well acquainted with his domestic arrangements; declined saying whether the action threatened by Bryan related to those domestic arrangements; came first to the Colony in 1820; remembered as far back as 1825; was tried for perjury in that year; heard the jury return a verdict of guilty, subject to a question of law whether the proceedings at the Police-office were judicial; declined saying whether before he left the Colony he was living with a woman not his wife; witness' wife's sister resided with him; had done so before and after Mrs. Polack's return to England; would not say whether he lived with her as a wife or not.

Re-examined. - The body of the promissory note was in Jones' hand-writing; required Jones' services after his return here to prove some outstanding debts; did sign blank papers at different times for Jones to fill up, but never gave him authority to fill one up in his own favour for £300.

John Wedderburn. - Was a wine merchant in Sydney; the promissory note now handed to him had been in his possession; it was given him by Jones; the body of the note was in Jones' hand-writing; Jones asked him to discount the note; he (witness) said it was a good bill, and he would discount it; Jones prefaced this by asking him if he recollected Polack promising to give him £300, he replied Yes, and prisoner said Polack had given it to him, and pulled it out of his pocket; there was some bargaining about the rate of discount, but at last agreed to give prisoner £250 for the note; he advanced him at that time £100, and the rest after; he took his receipts for the money; they were in the hands of his solicitor; was sued in January on Polack's note by the trustees; had been in the Agricultural Office with Jones, eight years ago; was intimate with him.

Cross-examined. - Had heard Polack promise Jones a bonus if he staid in his service till he was free; he was sued upon that note by the trustees; believed at the trial the validity of the note was not question; did not remember prisoner telling him why the bill was ante-dated; never knew the defendant otherwise than scrupulously honest whilst they were together.

David Poole sworn. - Was a solicitor of that Court; knew the prisoner well; remembered his applying to him for the loan of £2 shortly after Polack left; it was in the beginning of December, 1839, that prisoner called upon him; a few days after he called again, and I lent him one or two pounds more; he mentioned to me he had a paper from Polack authorising the payment of money to him; he showed it him; it was half a sheet of foolscap; the one portion of the paper, say half the half sheet, was occupied by a writing from Polack to his trustees, and signed by him, which was the paper he held in his hand, and the remainder of the paper was blank, with the exception of the signature of Polack; the paper A in his hand was part of the same document which prisoner then showed him, but the lower part was gone; he called the attention of prisoner to the blank signature, and he explained it by referring to the other writing; did not speak to prisoner on the matter again for a month; had heard of a bill of Polack's in his favour for £300 being in circulation; he saw prisoner passing his house, and called to him, and asked him about the money I had lent him; prisoner immediately offered me paper A as security; remarked that the part of the paper containing the blank signature was gone, and told prisoner he had heard of a £300 bill being in circulation, and hoped it had not been used for that; prisoner assured him it had not, that he had got the remainder of the document, and would call and show it to him; he never did; he first saw paper B in its present state at the Union Bank by accident; Mr. Wedderburn came in to retire the bill, and witness asked him to let him look at it; did not recognise it; this was after I had spoken to prisoner; held the paper up to the light to see if I could see any marks to prove it was originally part of the same sheet with the paper left in my possession by prisoner; did not discover any.

Cross-examined. - I received the paper marked A when prisoner gave it to me; I paid no attention to its contents; would not swear that prisoner then said the blank signature was accounted for by the upper writing; was strongly impressed that he did say so; was quite sure prisoner did not come to him until after Polack had left; would swear the paper was half a sheet of foolscap; could not swear to the precise words that passed between him and prisoner respecting Wedderburn.

Daniel Egan, sworn. - Was one of the trustees of Mr. Polack; knew the prisoner; knew that £60 had been paid to prisoner under Polack's orders; he believed the order was on half a sheet; believed Polack's signature was at the bottom of a blank paper on the same half sheet; the money was paid by a cheque within a day or two of Polack's departure; believed Mr. De Mestre and himself had signed the cheque; knew that he did; knew prisoner's handwriting; the account now before him was a debtor and creditor account between Polack and prisoner; there was one entry of a bill at three months, in favour of prisoner, for £300, and other entries, for amounts of salary; paid in cash; had not looked carefully through the books; trustees had appointed an accountant to do so; had never heard of an entry being found of a bill for £300 in favour of prisoner; the order to pay prisoner £60 was left in prisoner's hands after the cheque had been given, he had the charge of all papers as clerk to the trustees, and was a confidential man; Polack left some accounts to settle, but not to a great extent; had attended more to the trusteeship than any other.

Cross-examined. - First saw the bill for £300 when it was being sued upon; was never called upon individually by Mr. Wedderburn to pay it; Polack was not in the colony when it had been sued upon; had not examined the books particularly; believed errors and omissions had been found in them; had heard Polack say he would give prisoner £200 or £300; had known prisoner ten or twelve yeas; considered him an honest man.

By a juror. - Did not recollect being present at the writing of the instrument, thinks it was half found in them; had heard Polack say he would give prisoner £200 or £300; had known prisoner ten or twelve years; considered him an honest man.

By a juror. - Did not recollect being present at the writing of the instrument; thinks it was half a sheet when presented for payment; believed the paper was left on the desk in prisoner's charge.

The Counsel for the prosecution then put in the papers A and B to be read to the Court, which were, the request to the trustees to pay prisoner £60, and the promissory note for £300.

Randolph Dacre, sworn. - Had seen the instrument A before; it was about the time of Mr. Polack's departure from the colony that I first saw it; could not say whether it was in the same state now as it was at that time; could not state any difference which might exist; had paid very little attention to the document.

This closed the case for the prosecution.

Mr. Broadhurst in rising to address the jury for the defence, said he felt the deepest anxiety as to the performance of his duty on this occasion, both on account of the fate of the prisoner and the mystery, by which the circumstances were enveloped, which rendered the responsibility both of the jury and himself so much greater. The learned gentleman then proceeded to comment eloquently on the duties which a barrister's profession entailed upon its practiser, and said he should exercise the fullest privilege of an English barrister, in commenting on the evidence they had heard from Mr. Polack; both from the unsatisfactory nature of that evidence itself, and from Mr. Polack's private character. Gentlemen of the jury would see that Mr. Polack had admitted that a jury of twelve men had found him guilty of perjury and that he had escaped sentence only through a question arising on a point of law. Now if the evidence of Mr. Polack was to be believed he should not dispute the forgery, but he contended that that evidence had no claim to their credibility, and he called upon the jury to disbelieve the whole of it as he did. Had Mr. Polack been sentenced for the perjury of which he admitted having been found guilty, he would have been incapacitated from giving evidence on this occasion, and if it was proved that since that charge of perjury there was no appearance of a moral renovation in his character, then he maintained his evidence was not to be believed, unless supported by very strong corroborative testimony. The counsel for the prosecution had explained to them how the law in the present case stood. He had shown them, and he (Mr. Broadhurst) should not attempt to dispute it, that the matter in question of filling up the blank signature to an unauthorized amount was a forgery in the eye of the law. But the jury must bear in mind, that it was that description of forgery which it was most easy to establish and the most difficult to disprove; in ordinary cases of forgery there was so much address and cunning required, that it was a very difficult thing to escape detection, and once detected the charge was easily brought home. But in a case of the nature of the present one, it was a very easy thing if a man were disposed to perjure himself from motives of malice or otherwise, to affix a charge of forgery on a man, which it was impossible to find actual evidence to disprove. He would therefore most solemnly solicit the minutest attention on the part of the jury to the whole body of evidence, and if the evidence of Mr. Polack was not fully supported by collateral testimony, if the charge in fact was not brought home to the prisoner by other evidence, he unhesitatingly called upon them to acquit the prisoner of forgery. He did not deny that there might be suspicious circumstances against the prisoner, that he might have appeared to have acted in some measure dishonestly, but they must not let these suspicions affect their minds with respect to the present case, but if they could not see substantial and direct proof of the forgery, it was their duty to acquit the prisoner. Now he would ask on what evidence the crime could be brought home to the prisoner except by that of Mr. Polack? and he would then ask them, if he might without insulting them, could they believe that evidence could they believe the evidence of a man who had before committed that most loathsome crime of perjury? who had in the evidence he had that morning given, and in the information he had withheld on various points, given such direct contradiction to any belief that since his committal of that crime of perjury he had become morally a better man. It was not usual for prosecutors of the Crown to cast a slur, an imputation on the character of the witnesses they are going to call; yet this had been done in the present instance. The remarks made by Mr. Foster as to the character of the evidence he should get both from Polack and from Wedderburn, was quite sufficient testimony as to its value. But he must say it would have been more decorous to let the character of that evidence show itself in the witness box than to parade its demerits in the face of the court, while they still availed themselves of it. The learned counsel then went through a minute review of the whole evidence, the chief point of which was, as he said, to establish the fact that excess of authority had been used. The ground of defence, principally urged, was the probability of the bill for £300 having been an entirely distinct transaction, from the circumstances referred to in the papers that had been produced in court, and the absence of proof that such was not the case. The learned counsel also laid much stress upon the circumstances of wishing to get the prisoner out of the way, in order that he might not appear as evidence against Polack, in an action which was of such a complexion that he declined saying to what it referred; also on the circumstance that had the prisoner been guilty, he would questionless have been more anxious to keep on good terms with Polack, instead of which he had refused to enter his employ, had not endeavoured in any way to hush the matter up, and though at large all the while, had firmly dared all the uncertainties of the law, and had awaited his trial, relying on his innocence and the justice of his country. The learned gentleman concluded a long and forcible address by entreating the jury not to let any of the extraneous talk, of which there had been so much heard in the witness box, effect their verdict, but disregarding Polack's inconsistencies and prevarications, Poole's impression, Egan's belief and Dacre's uncertainties, to return a verdict on the direct evidence of the forgery which had been brought before them.

His Honor having remarked on the very able and proper way in which the case had been conducted on both sides, said it was the first case of forgery on this principle that he had tried in that Court. He, however, fully recognised the principle on which the present prosecution for forgery was sustained, it being clearly pointed out by law. His Honor then proceeded to call the attention of the jury to some peculiarities in the writing of the body of the promissory note for £300, which went to show that the signature had been written up to. He then remarked on the character of the evidence given by Mr. Polack, and said, although the character of the man was not such as to entitle it to much weight if unsupported, yet he had on the points he had been willing to answer to, given his testimony in a direct way, and that testimony was supported by the very clear and conclusive evidence of Mr. Poole and the other witnesses. His Honor then read over the evidence, and left the case in the Jury's hands, who, after about an hour's deliberation, returned a verdict of guilty. His Honor, in proceeding to pass sentence, said that it was impossible for any one who had heard the evidence not to coincide with the verdict. He was sorry that a man who had for a long time been in some measure redeeming his character, should by a step of this sort have subjected himself to such a verdict. It was impossible for him looking at the nature of the crime, and the aggravated circumstances attending its committal, to believe that he had so long preserved the character of honesty which he was reported to possess. He could not but think that people, as was too much the case in the colony, in their anxiety to have a clever man in their employ, had been content to employ a clever rogue. The modifications of the English law relating to forgery had not as yet been extended to this colony, there was but one sentence which he was empowered to pass, which was, that the prisoner should be transported for the term of his natural life. He should, however, take upon himself to say, that he should apply to the Governor for a commutation of that sentence to ten years.

Note

[1] See also Sydney Herald, 14 January 1842; Sydney Gazette, 15 January 1842.

Published by the Division of Law, Macquarie University