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

R. v. Reynolds [1842] NSWSupC 43

perjury - Court of Requests - Gosford - Brisbane Water

Supreme Court of New South Wales

Burton J., 11 January 1842

Source: Sydney Herald, 12 January 1842 [1]

For Perjury

            The Attorney General stated, that the offence for which the prisoner stood indicted was that of perjury; a crime which he, the Attorney-General, feared had produced extensive mischief in Sydney. The cause of the prosecution had arisen out of a case which had been tried before the Court of Requests. In that case, the prisoner had been summoned by the trustees for building a church at East Gosford, to recover a subscription to the amount of two guineas, for the due payment of which he, the prisoner, had written his name on the subscription paper. At the hearing of the case, although the prisoner had thus subjoined his name, he strongly and repeatedly denied that he had ever written his name to the paper produced in Court. The result was, that although the fact of the prisoner's having written his name, was a fact that on enquiry would be fully established, the trustees were defeated in their suit, and the present prosecution was instituted.

            Mr. Duguid, called and examined by the Attorney-General; said he was a clerk in the Court of Requests. He produced the original summons, and the plaint. filed by the trustees for building a church at East Gosford, against Reynolds. Witness saw Reynolds attend the Court as defendant. The case came on to be tried on the 7th August last, before Mr. W. M. Manning, the Commissioner. The case was dismissed, there being no judgment either for plaintiff or defendant; Reynolds was sworn on that occasion in the usual form; he swore that the name Reynolds in the paper produced was not in his hand-writing; could not recollect whether any other witness was examined on the trial.

            Cross-examined by Mr. Foster. - The oath was in the usual form - "to tell the truth and the whole truth in the case before the Court." Witness did not know of his own knowledge whether there were any trustees for building a church at East Gosford.

            Mr. Wells examined by the Attorney-General : said he was a land surveyor, and had been concerned in collecting subscriptions for the erection of a proposed church at East Gosford . Saw the prisoner sign a subscription paper, but could not say whether he signed the paper produced in Court. Some of the subscribers signed one paper and some signed the other.

            John Fearnley, examined by the Attorney-General : Was a clerk to Peek and Campbell . Was at the Court of Requests at the time of the hearing of the case of the Trustees against Reynolds. Saw a subscription paper produced with the prisoner's name on it. The paper now produced in Court was the one which witness had seen at the Court of Requests.

Cross-examined by Mr Foster : Knew Mr. Peek was one of the Trustees, and Mr. Donnison another; knew merely from Mr. Peek having property there, and from report. Knew the subscription paper to be the same, from frequently having seen it before, in the possession of Wells and other persons. Wit - believed he had had the paper in his own possession.

            Mr. Berry examined by the Attorney-General : Was a commission agent, and was at the Court of Requests at the hearing of the Trustees v. Reynolds. Had been employed by Mr. Richard Peek to procure subscriptions. Called on Reynolds, who put his name down for two guineas, but refused to pay when witness afterwards called for the money; alleging the name on the paper was not his, Reynold's, writing. Only one paper had been used by him, witness, which had an addition to it. Reynolds had sworn that the name was not his writing.

            Cross-examined by Mr. Foster : Witness had taken out the summons, and rested his case on the subscription paper produced in Court.

            Mr. John Black, examined by the Attorney General : Was Cashier at the Bank of New South Wales. Was acquainted with the prisoner's handwriting. Would have paid a check with such a signature.

            Robert Boroughs, examined by the Attorney-General : Was a clerk in the Bank of New South Wales. Knew the prisoner, who kept an account at the Bank of New South Wales. Was acquainted with the prisoner's handwriting, and would have paid a check bearing the signature witness saw on the paper produced.

            The summons of the prisoner to the Court of Requests being put in and read, closed the case for the prosecution.

            Mr. Foster, for the prisoner, stated, that he felt it to be his duty before the case proceeded further to submit, that admitting the signature produced to be that of the prisoner, it was clearly necessary, that as the indictment set out that the false swearing had occurred in a suit by the Trustees v Reynolds - it was indispensably necessary that it should be shewn that there were trustees for the purpose wanted, and that there was a contract between those parties and the prisoner, rendering the latter person liable for the payment of the two guineas. In support of this view he would cite a case in Peake's Additional Cases, Rex v. Benesech, in which it was decided that if the original contract was not a binding one, perjury could not be sustained on it. There were other cases confirmatory of the same position. Here there was no proof of any trustees being in existence, nor was there any church at East Gosford . Independently, too, of this objection, it was clear from the 7th section of 2, Wm. IV., that trustees for the building of churches could only have a right to the land, and not to any subscriptions made by the subscribers. These trustees therefore were not the parties to sue, and if any one had a right of action, it ought to have been at the suit of all the other subscribers against the prisoner, for not paying his subscription according to his contract with them; on these grounds he Mr. Foster submitted the indictment was not sustained, and the prisoner must be acquitted.

            His Honor said it appeared to him that the objection which was not a merely technical one, was unanswerable. The perjury assigned must be on a contract which was valid in law; and in the present case if there could be said to be any contract at all, it was one between the prisoner and all other subscribers for the purpose set out in the indictment. At the same time that his Honor pronounced the indictment not sustainable for the reasons alleged, he must say that it was very distressing to see the same faces as constantly before the court, as its own officers; the faces of persons who appeared to be in a constant state of litigation, about the property at Brisbane Water. The time of the Court had been so much taken up by these parties, that it might soon be called the Supreme Court of the district of Brisbane Water. His Honor trusted that for the future, the persons he alluded to would avoid this spirit of litigation, and if they only acted according to justice and morality between man and man, it would be quite unnecessary that the same faces should thus so frequently be seen in the Supreme Court. The prisoner was acquitted.


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

Published by the Division of Law, Macquarie University