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

R. v. Jones

fraud, by court official

Supreme Court of New South Wales, Port Phillip

Willis J., April 1841

Source: Port Phillip Patriot, 18 April 1841

CHARLES JONES, was indicted for that he on the first day of October, being then bailiff of the Court of Requests, for the district of Melbourne, did by pretext and color of his office, receive eleven shillings and sixpence, unjustly and by extortion, from William Cooper, as the pretended costs of a certain plaint issued out of the Court of Requests, in a cause of Orr v. Cooper , to recover from the said W. Cooper the sum of £2 14s. 6d., and also for the pretended costs of an execution, purporting to have been issued out of the said Court, by Edward Jones Brewster, the Commissioner of the said Court, when in truth and in fact, no such execution was issued under the hand of the said E.J. Brewster, the costs of which ought to have been levied being five shillings and sixpence; as an evil example to all others in the like case so offending.

The information contained five other counts, charging the prisoner with having committed the offence in various ways, by agents, &c. The prisoner pleaded not guilty, but admitted that he was bailiff of the Court of Requests at the time of the said information, and also admitted his hand writing to a document purporting to be an execution out of the Court of Requests, in the case of Orr v. Cooper.

Edward Jones Brewster sworn---I am Commissioner of the Court of Requests, the document I hold in my hand purports to be an execution in the Court of Requests; the signature is in the hand writing of the prisoner; none of the writing in the document is in my hand writing; the endorsement of my name is also in the prisoner's hand writing; it was issued as my name.

His Honor---This becomes a more serious offence than a misdemeanour.

Examination of witness continued --- The name Richard O'Cock is also in the prisoner's hand writing.

By the Court---The rules now produced contain a schedule of the fees allowed to be charged in the Court of Requests, and are also the rules under which I act.

Examined by the prisoner---I knew there were sixteen executions issued while you were bailiff; I never gave you authority to sign my name; I never gave you any such power; I never knew any person in gaol under my execution; I think I signed seven executions; I remember writing to the Superintendent relative to the accommodation of persons taken in execution from this Court, and therefore I told you to send me as few executions as possible; I said at the police office that I did not think you had committed forgery, although I never authorised you to sign my name; I said so because I thought you were allowed to fill up more documents than you ought to have done.

Richard O'Cock sworn---The Book produced contains official entries of the proceedings in the Court of Requests, and is kept in pursuance of the Court of Requests Act; all plaints and executions are entered; in the cause of Orr v. Cooper I see entered a receipt for 5s. 6d. received as costs, which is the amount of the proper fees up to the time of execution.

Cross-examined---I don't believe I ever made an overcharge in the Court of Requests, with regard to the fees; I cannot say what might have been your intentions.

This was the case for the prosecution.

Jones then addressed the Jury; he said he attributed the mistake to the hurry of business, and that he was the only person, he considered, who was entitled to issue executions and to sign Messrs. Brewster and O'Cock's names. (A laugh.) He would call witnesses to prove that part only of the money was paid.

Mr. O'Cock recalled and examined by the prisoner---I received the money from you, in this case, for the plaint, but no fee for the execution; I have done so for other executions in Court; the issuing of every execution was not with my knowledge.

William Cooper sworn---I did not pay you the whole amount in the case of Orr v.Cooper , nor any of the costs, still there was a balance between you and me relative to a plough you ordered for Mr. Rucker, and I thought it would go off the balance; I made no off-set; I have been very basely used in the Court of Requests; any body might pick me up on the street and get a verdict there.

By Mr. Croke---The impression on my mind was that the execution was settled by Jones out of the balance due to me of £ 4, over and above the amount of the execution.

By the prisoner---I booked the plough to Mr. Rucker's account, but he has refused to pay for it, therefore I shall hold you responsible.

By the Court---There is a balance of upwards of four pounds due to me by the prisoner, after paying the execution.

Robert Crow sworn---I was clerk in the Court of Requests office, appointed by yourself; Mr. O'Cock was in the habit of coming to the office and directing you to fill up executions against parties, leaving the names of the plaintiff and defendant on a slip of paper; I never knew you to commit a fraud, and in some instances I have known you to forego the fees altogether.

A question here arose as to whether the Court of Requests was a court of record, and also whether this was a document purporting to have been issued out of a court of record. His Honor decided that it was but a quasi court of record, otherwise he must have struck out Cooper's evidence altogether as it would have been evidence against the record; at the same time, he said, he had great doubts whether Cooper's evidence could be legally admitted.

Cooper, recalled by the prisoner---You once met me, and asked for the balance of the execution; I told you I would not pay it until Mr. Rucker had settled for the plough, as I considered you were in my debt.

His Honor then summed up at great length, recapitulating the whole of the evidence.

The Jury retired, and after an absence of an hour and a half returned into Court and pronounced a verdict of not guilty, having taken Cooper's evidence into consideration.

The Crown Prosecutor applied to have Jones remanded, as he intended to put an information on the files of the Court against him the following morning for forgery. He had no objection to his finding bail for his appearance.

Jones immediately procured bail, and was allowed to depart.

During the absence of the Jury in the case of the Queen v. William Jones , who had been committed to take his trial for obtaining money under false pretences, there being no information on the files of the Court, Mr. Barry applied that the recognizances entered into by the defendant and also those of his bail be discharged. Granted.

Willis J., April 1841

Source: Port Phillip Patriot, 18 April 1841

His Honor having taken his seat at the usual hour the following Jury were impanelled:---E. Dare, J. Dinwoodie, F. Dutton, D.S. Campbell, J.M. Chisholm, J.O. Denny, John Dunbar, J. Dredge, S. Craig, William Erskine, William Dodds, and G.W. Cole, Foreman.

CHARLES JONES, was indicted for forging the signature of Edward Jones Brewster, to a document purporting to be an execution issued from the Court of Requests, with intent to defraud William Cooper.

Jones pleaded not guilty; and challenged Messrs. S. Skene[???] and D.S. Campbell, two of the Jury.

His Honor said---The prisoner was not entitled to the right of challenge being only indicted at common law, but he was sure, no gentleman would wish to sit as a Juryman in any case where the prisoner believed he would not give a conscientious verdict. Perhaps Mr. Craig and Mr. Campbell would retire; if he was himself in their situation he should be glad of the opportunity. Mr. J.H. Davey and Mr. Peter Davis were then called in lieu of the former gentlemen.

Edward Jones Brewster sworn---I am Commissioner of the Court of Requests; I know the prisoner; he was bailiff in the Court in April, 1841; I have seen the prisoner write the signature of "Charles Jones;" this document is in the prisoner's hand writing; the name Edward Jones Brewster is in the same hand writing; I never gave him authority to sign my name; the name Richard O'Cock is also in Jones' hand writing; I never gave Jones any authority to sign this or any execution; this paper purports to be a process execution of the Court of Requests; it is in the proper form of the Court.

By the Court---The name E.J. Brewster signed to that document is not in my hand writing; I believe it to be Jones' hand writing.

By the Jury---I believe Jones has issued writs of this description; I never tacitly gave my consent to his doing so.

Cross-examined by Jones---I always saw the summonses that were issued and served by you; they were handed up to me at every sitting of the Court; I do not think you intended to commit a forgery; there was no attempt at disguise; I am of opinion you had no intention in defraud, but that you conceived you had the power to fill up those documents for the registrar; If I had come into the office and had seen you signing the document I should not have considered it a forgery.

Judge Willis---Was sorry to hear Mr. Brewster give such an opinion as a Judge, or to put such a construction on the Act.

By the prisoner---I will not swear that I thought it absolutely necessary to sign executions at that time; you done principally the duties of the Registrar.

William Cooper, sworn---I recollect an execution being put into my house; I paid the amount to a person named Charles Hayes; I paid the full amount. I think it was £ 7 10s., on the execution now produced; I paid Jones more than a pound; there was another execution put in my house on this suit after I had paid the money; I did not pay it, it was for the same debt; I had only one transaction with Orr. I handed this execution over to the other Bailiff as a receipt for the amount he levied; I got the execution as a receipt for the money; when the Bailiff came to my house with the second execution, I produced the first execution---he said it was as good as money.

Mr. Brewster (recalled)---The money in this case was not paid when Jones was gone, the plaintiff called upon me to make a complaint with many others, but I directed Captain Lonsdale to stop that amount out of the prisoner's salary.

By the Court---I think Capt. Lonsdale handed the prisoner's salary over to myself or Mr. O'Cock, and when the plaintiff Orr called upon me I paid him the amount out of Jones' salary. I issued a second writ in Orr v. Cooper , because I was not aware of the existence of the first.

Judge Willis---That completely exonerates you from every thing relative to the first writ, and clearly proves that you gave no permission or authority to issue the first execution.

Jones begged with respect to state that His Honor was misleading the Jury.

Judge Willis---The prisoner is indicted for a misdemeanour, and in the case of an officer being tried in Sydney for a similar offence, he conducted himself very unseemly to the Court, and Mr. Justice Burton who tried the case fined him £ 50; the prisoner had therefore better take care how he behaves.

Jones---I can assure Your Honor I had no intention of insulting the Court in any way.

Judge Willis---You had better take care not to do so.

The Court then adjourned for a few minutes.

Upon re-assembling, Mr. Brewster was recalled---This document bears my signature, it is an execution in the case of Orr v. Cooper it is dated 23 rd June, 1841, to recover £ 2 14s. 6d., and 5s. and sixpence costs. I never received the amount of either of these executions, but stopped it from Jones' salary, in consequence of the plaintiff in this case complaining he had not been paid; I paid him three pounds.

By the Court---I never received a farthing of the amount levied; I think the sum levied should be paid to plaintiff through the Registrar.

By the Jury---I have heard that Jones has received monies on executions and handed them over to the parties; at the time of the second execution I was aware of that fact.

The Hon. Mr. Murray having consented to defend Jones, with the Judge's permission the learned gentleman cross-examined Mr. Brewster---I am aware that the prisoner was in the habit of retaining monies some time in his possession; he ought to pay the money over to the Registrar; I am not aware there is any order of Court which compels the Bailiff on the receipt of money to pay it over immediately to the plaintiff.

By Mr. Croke---I called Jones both before and after his dismissal to account for his receipts, particularly in the case of Orr; I was not aware that the Bailiff retained sums of money until my attention was directed to the irregularity of the Court.

Cross-examined by Mr. Murray---I was not aware that the money on the first execution was paid to Jones, I am sure I could not be aware of the money being paid or I should not have issued the second execution.

William Cooper re-examined by the Crown Prosecutor---I paid some money on this execution signed by Charles Jones; I don't remember seeing this second execution, but I think the bailiff Hooson showed me the back of it.

Cross-examined---Jones met me in the street and told me that he had an execution,Orr v. Cooper ; I said I had not sufficient money, and gave him part; I did not allude in the first instance to the transaction of the plough, but did so on his asking me for the balance when I paid him part of the amount of the execution, he handed me the document which was signed.

Richard O'Cock---I was Registrar of the Court of Requests up to the 30 th of May; I remember the case of Orr v. Cooper being adjudicated in the Court of Requests; I did not receive the amount of that execution from Jones; I am not aware that it is my duty to receive any money from the bailiff except the fees; I never received fees on this execution; I swear it is not one of the nineteen; I can't say whether I received any money on executions signed in this way.

By the Jury---It was my duty to receive all fees, I have received no fees in this first execution; I have received on other executions, but cannot say whether they were issued irregularly.

By Mr. Murray---I said at the police office that I received fees, not money on these executions; I have found fault with Jones on several occasions; I knew nothing of this execution until after my resignation.

By the Jury---Executions are registered before they are executed.

By Mr. Croke---I never received any fees in the first execution.

Kenneth W. Kirkland, sworn---I am Registrar of the Court of Requests; I have held that office since the 7 th of June, 1841; I know this execution, it is the first execution in the case of Orr v. Cooper. The plaintiff Orr applied to me for an execution in this case, in consequence of not receiving the amount of his judgment. I never received any money in this case from Jones; Orr paid me for the second execution.

This was the case for the prosecution.

Mr. Murray addressed the Jury for the prisoner at great length; he regretted that having taken up the case at a moment's notice he could not give it that attention which its importance required. He contended that Jones had not committed forgery having tacitly the consent of Mr. Brewster to sign his name, and that it was entirely owing to the irregularity with which the business of the Court of Requests was conducted, that the prisoner was that day at the bar to take his trial.

His Honor charged the Jury, who retired for about twenty minutes, when they returned into Court and pronounced a verdict of not guilty.

Published by the Division of Law, Macquarie University