R v Brown, 1840

John Brown was placed at the bar charged with feloniously uttering a forged bill of exchange on the 10th August last, to defraud Mr. James Brown, Auctioneer, of Hobart Town.

James Brown, on being sworn, said, I am an auctioneer; I know the prisoner at the bar; I have known him for fourteen or fifteen years; I know Mr. Hedger; I recollect that the prisoner was there on the 8th and 10th of August; on the former day buying goods by auction, and on the latter day receiving them; he bought £117 worth of goods, or thereabouts; he paid for them by bills of exchange; I received four for the goods that I sold on the 8th; the other was on the 10th of August.

Attorney-General. - Look at that bill of exchange. That was one I received from the prisoner; it is in the same state now, with the exception of the red ink mark, (the Bank mark,) and my indorsement on the back, with noting, 2s. 6d. in figures; and No. 1149; “John Brown” is his hand-writing; accepted in my presence.

John Hedger called - On his appearance the Attorney General said, you have forfeited £100 by not being present in time; the Court has been kept waiting.

Chief Justice. - I wish all persons in attendance would endeavour to be here a quarter of an hour before the clock strikes ten; you will forfeit your recognizances by non-appearance in proper time.

Examination by the Attorney-General. - I carry on the business of a confectioner in this town; I know of no other person of the name of Hedger residing in the colony; no individual residing in this island is authorised to draw a bill of exchange in my name; I have an establishment at New Norfolk in charge of one Haines; he is not authorised to draw upon me.

Attorney-General. - Please to look at that bill of exchange, purporting to be drawn by John Hedger; is that your hand-writing? - It is not; I know the prisoner at the bar, and have known him for nine or ten years; I have had business transactions with him; it is a long while since; the last is about twelve months.

Did you draw on the prisoner any bill of exchange? - I don’t recollect ever doing so.

Chief Justice. - In whose favour is it drawn? - James Brown; the bill runs thus -

Prisoner to Mr. Hedger - Do you swear that there is no other John Hedger but yourself in the colony? - No; I do not swear, I say I know no other.

Thomas Jeffson. - I am a constable residing at New Norfolk; I know the prisoner at the bar; I have for two years past; he has been living during that time at New Norfolk; he was in business for himself; he has been living there up to the 14th of last month; I saw him on the 11th to the best of my belief; I looked for him on the 14th; I had a warrant to apprehend him; I could not find him.

Examined by the Chief Justice. - He was in business for himself; he was brewing once for Mr. Martin; he was then employed hawking; he had a farm also for a short time; he was lodging at Mr. Brooks’s in the early part of November; I cannot say how long he was lodging there; I knew him to be there three weeks; I went to look for him at Brooks’s; I was informed that Mr. Byron, of Launceston, took him into custody; I have no further knowledge of the fact.

Mr James Brown examined by the Chief Justice - He told me that he was living at New Norfolk.

Chief Justice to the prisoner - Have you any defence to make? Yes, your Honor; this acceptance is my acceptance; John Hedger who resides at Launceston drew the bill; he supplies goods; he drew this bill in Hobart Town; your Honor I have had no time to get witnesses; besides all my money has been taken away from me; I was brought all the way from Launceston, and I have been twelve days upon the road; it is only last Monday that I was at the police-office.

Chief Justice. - If you had applied to me when you were arraigned, I would have given you time to get witnesses, but it is too late now.

His Honor then addressed the jury, and summed up the evidence in a luminous manner; he said, that the prisoner had feloniously uttered a bill of exchange for £50, with intent to defraud Mr. Brown, the auctioneer, knowing the said bill to be a forgery; the indictment contained two counts; lst, that it was a forged bill of exchange; 2nd, that the prisoner had offered it with an intention to defraud; he was at an auction on the 8th August purchasing goods, and offered the forged bill of exchange in part payment of the same; the bill, as before seen, was purporting to be drawn by John Hedger. In conclusion, His Honor thought that it was a clear case of forgery. Verdict - Guilty. Sentenced to be transported beyond the seas for fifteen years.

Thomas Price, a prisoner of the Crown, was placed at the bar charged with assaulting Mrs. Margaret Collins, resident in the district of the Coal River, on the 2nd October last. The indictment contained two counts; the lst count charged him with intent to murder; 2nd, to inflict grievous bodily injury, but not to kill outright.

Kenneth Maclean, on being sworn, said I am a surgeon, stationed at Jerusalem; I knew the old woman, Margaret Collins; I saw her on Friday, the 2nd October last; in the afternoon of that day, she was very bad, and her head much cut; she appeared to be in danger; I examined her and found nine bad cuts on the head, three of which I had to sew; the skull was not fractured; the cuts went to the bone; three at all events, these three were at the top of the head; I found an extensive wound upon the right arm, about six inches long; the wounds appeared to be contusions, not cut with a sharp instrument; I speak of all the wounds; they appeared to be done by a stick; they would give great pain; I was more afraid of a concussion of the brain than of the wounds; they were likely to cause concussion, which might produce death; the right arm was contused; the small bone on the left arm was broken.

Examined by the Chief Justice. -The had been recently done; they were bleeding; the three that I stitched more particularly, which were the largest; the skin was broken on the right arm; it was cut completely through; the skin was not broken on the left arm; the skin was separated upon the skull; the bone was not cut; she was a weakly person, she was an elderly woman, between sixty and seventy; I did not apprehend immediate danger; I might, had she been younger.

Margaret Collins examined. - I am a Roman Catholic; I know the sign upon the book.

She stated as follows. - I live near Jerusalem; I recollect seeing Dr Maclean, when I was very ill.

Attorney-General. Dr. Maclean says your head was in a very bad state - yes; I recollect a strange man using me very ill; but my eyesight is so bad I am afraid I could not now recognise him; I never saw him before to my knowledge; my son was at a good distance in the field, sowing some grain; the man did not come into the house until I began to talk with him; the dogs were making a noise; I was washing the place; this was after dinner; I laid the tin dish down, thinking they were too near the door; I rose to drive them back; I cam to the threshold of the door, and I saw a man with yellow-striped trousers; he looked very sharp all round the place, and when I looked into his face, I became very much frightened; nothing took place, but I saw a kind of a waddy in his hand; it was a forked stick, and some of them was cut closely off; when he came in he put the forked end downwards resting on his foot at the threshold of the door; he asked me where my son was; I told him he was down in the field at the back of the garden; what do you want with him, I said, I am going from Spring Hill to Oatlands and I have lost my way, and I want your son to put me in the straight road; I then said, if you do not like to go to him, I will direct you in the way as well as I can; with that I went as far as I could forward; but before I could get to the door, he stepped in at the left side and struck me a blow; but I did not perceive how it was done; I only felt it; the blow knocked me down as dead as a chicken, quite speechless; being insensible I know no more about it; but as I was crawling about, I got one blow after another as far as he could strike; I recollect the last blow that was struck I got my arm broke; it was the left arm; I remember calling out after the man was gone, murder, murder; he had on a dark cap and yellow trousers; I do not remember any other portion of his dress.

Attorney-General - Please to look at the prisoner at the bar; she did so, and exclaimed, that is the man that injured me, I freely forgive you, but you are the very man.

Examined by the Chief Justice. - There was no person present, neither did any one come when I called out; I had no knowledge of his previous nor never saw him; he was brought to the house afterwards by Mr. Cruickshank and a constable; I was laying down;’ I knew his then; I only knew that man; the prisoner declined asking any questions.

Thomas Collins examined. - I am the son of the last witness; I recollect the 2nd October; I recollect Mr. Maclean coming to see my mother; I lived with her; I got my dinner about 12 o’clock and went to sow some wheat, about fifty rods distance from the house; I heard the dog barking sharply; I looked and saw a person walking very smartly from the house towards the bar, about half an hour after dinner; I could not say from the distance as to his appearance; he had on a dark-coloured round cap; I saw him walk up to the house; he might have been there five or six minutes when I saw him going away; I heard another noise; after he was gone the old woman came round the house, and I heard her shout murder; I called to the other men who were at work with me, and ran towards the house with all the speed I could; I saw my mother standing by the house, who exclaimed I am very near dead; she was all over a gore of blood; I got her into bed, and went immediately for the doctor at her request; he was not at home, I requested that he might be sent as quickly as possible; I cannot say that it was that day or the following that I saw Lieutenant Cruickshank.

Lieutenant Cruickshank examined. - I know the prisoner at the bar; the chain gang at Jerusalem is under my management; in the early part of October he was in the chain gang; he was at work with another man at a fence on the 2nd October; I spoke to him then; the same night I also saw him; he was brought down in custody to the office I know where Margaret Collins and her son reside; it is about three miles from where he was at work; I was at their house on the 2nd October; I went in company with Doctor Maclean; I was present when he was there and examined her wounds; I saw the prisoner in custody that night; I took her deposition on the Saturday, the day following; I missed him that morning; there was no other absentee; he had nothing in his hands then; I saw blood on the sleeve of his jacket; to the best of my recollection on his left arm; it was quite recent; he was dressed in the chain gang costume, yellow and black; he had a round cap on the day previous; when brought up in the morning he had a similar cap on.

Christopher Heygett examined. - I recollect the morning of the 2nd October last; I remember seeing the prisoner on the lst October; he was fencing round the station; I saw him also on the 2nd October going up into the bush; I had been to the flour contractors with a requisition for flour; he was dressed in the chain gang costume; I had some conversation with him; I asked him where he was going; he said for turnips; I said you had better go back with me, there are no turnips this way; he then struck me across the head and cut my hap open with a stick about the length of my arm; it was a rotten stick for it broke; he then went across the hill towards the “Brady Bottle,” as Collins’s place is called; I made the best of my way home and reported him as an absentee from the gang.

Charles Salisbury. - I am District Constable at Jerusalem; on the night of the 2nd October I saw the prisoner, at the bar; I received him from Mr. Collicott, a settler, in whose custody he was.

Attorney-General. - Produce the dress the prisoner wore that day. The dress was produced; he then said I observed a spot of blood on the left arm; he had irons on his legs, but they were split.

By the Chief Justice. - I observed a bruise on his forehead, but no cut, because I examined him minutely; the spot of blood was quite dry; I touched it.

Samuel Collicott, settler. - I apprehended the prisoner at the bar in my father’s stable on the 2nd October, about half-past seven in the evening; I delivered him over to Lieutenant Cruickshank; Salisbury was there; I know a place called the “Brandy Bottle;” my father’s stable is about six miles from Margaret Collin’s house; I had been out riding, and gave the horse to one of the men; I went to see if the horse had been attended to; I saw a large bag in the corner; I went to it and saw something more under the bag; I asked was there any one there, when the prisoner at the bar started up; I presented a pistol at him, and asked who he was; he said an absentee from the Jerusalem chain gain; I took him in custody and gave him over to Lieutenant Cruickshank.

The jury retired for about an hour, and brought in a verdict of 0 Guilty on the second count - Not Guilty on the first, but stated that they thought it a most aggravated assault. Sentence - Death recorded, subject to a mitigation of transportation for life (reserved for the consideration of the Government Act to be put in force,) perhaps to Port Arthur.

Charles McCann stood indicted at the bar, for uttering and disposing a certain false warrant and order for the payment of £50, contrary to the statute, with intent to defraud one John Thomas and another, on the 6th June last.

The Attorney-General opened the case by addressing the jury, and stating that the prisoner at the bar stood indicted for uttering, knowing it to have been forged, a cheque upon the Bank of Australia. This cheque was originally drawn by Mr. C. F. Salmon for £5, and he paid it to a Mr. Dean, but when the prisoner passed it to Mr Thomas it was altered to £50; now the argument was, whether in the absence of Mr. Dean, it could be satisfactorily proved that the prisoner received it in the same state as he delivered it. You are, gentlemen, therefore not to take the absolute testimony, but give the prisoner the benefit of any doubts that may arise in your judgment of the case.

Attorney-General. - Mr. Salmon will state that the cheque was payable for £5, and is now £50, as when given to Mr. Thomas.

C. F. Salmon on being sworn, said - In the month of May last I carried on business at the Old Wharf.

Attorney-General. - Please to look at that cheque - It is my signature and handwriting; I paid it to Mr. Dean; the amount was £5; the body of the cheque was filled up by me, but not as it is at present, the letters “fty” have been added; the letters “ve” written over; the “o” has been added; the £5 is mine; I believe that Mr. Dean is at Port Phillip.

Attorney-General. - Look at the prisoner at the bar - I know him; I saw him in Mr. Thomas’s shop the latter end of May, or beginning of June; I did not serve him with anything; but I saw him served; he had some one in his company; I did not see how he paid, neither did I see him offer anything in payment; Samuel Gearding served him; it was on a Saturday evening; I cannot say I heard the prisoner ask for anything.

Samuel Gearding said. - I am a shopman at Mr. Thomas’s I remember seeing the prisoner at the shop in the beginning of June; he had another person with him; I served him with goods to the amount of £4 or £5; he paid me by a cheque for £50; (the cheque was produced;) I showed it to Mr. Thomas; I asked the prisoner his name; I wished him to indorse the cheque; the name given was Charles Towers; he made a X, and I wrote his name with mine beneath it; the cheque was given either to Mr. Thomas or our cashier.

Cross-examined by Mr. Stephen. - It was in the evening, after the lamps had been lighted, between the hours of six and eight o’clock; I might have said between the hours of seven and ten o’clock on a previous occasion; I speak merely from recollection of the circumstances; I might have said before that I did not take particular notice; I can undertake to say that it was the prisoner who gave his name Charles Towers; I serve the customers always as quick as I can, and let them go.

John Thomas said. - In the month of June, last I had a partner carrying on business; I remember to have seen the prisoner at the bar on the 6th June; there was another young man with him; they were both served by Mr. Gearding; I recollect seeing the cheque with Mr. G that evening; the bank mark is added on the front, and John Thomas & Co. on the back; also the words Bd. Thorpe, who is the taker of the change.

Cross-examined by Mr Stephen. - It was about eight or nine o’clock in the evening; I was not serving in person.

Blanchard Thorpe; - I am accountant and cashier in Mr. Thomas’s establishment; that is my signature, on the back; I received it with the cash to the shop, on the morning of the 8th of June, (Monday;) it is in the same state as when I received it, excepting the bank mar. - The following is the form of the bill:

Thomas Jeffson. - I am a constable living at New Norfolk; I know the prisoner at the bar, and have for three years; he was living in Macquarie Plains district, adjoining New Norfolk; his name is Charles McCann; I know his relations there.

Chief Justice to Mr. Salmon. - Is the cheque made out in the usual way? - It is; I generally make my cheques payable to the party to whose account it is charged.

Mr. Stephen started an objection on a point of law, and in addressing the jury, called upon them not to convict the prisoner on suspicious appearances, but upon substantial evidence; in all cases of this kind the law considers a man innocent (he is presumed innocent,) until the contrary is proved by the Court. The evidence in this case is simply this - a person of the name of Salmon makes not a cheque for £5; he states he gave it to a Mr. Dean; I do not doubt his evidence, but there is nothing to show that Mr. Dean is an individual to whom no suspicion could be attached as to his honesty. The cheque has been in the hands of Mr. Dean; it may have been done by him, or by any other person; it is not transferable by indorsement but by delivery; it is payable to bearer and not to order. I still say, that in the absence of Mr. Dean, you are not to know who altered the cheque; it has been altered there is no doubt; in the chain of evidence something is wanting; we are out to fill up the evidence by any chain of reasoning. In default of the appearance of Mr. Dean I think there is not sufficient evidence. Gentlemen of the jury, if this is a forged warrant and order to defraud, you must be satisfied that the prisoner is the man who offered it at the shop.

His Honor the Chief Justice, in summing up, stated that there were three witnesses, Mr. Thomas and two young men in his employ; Mr. Gearding speaks positively as to his certainty of the prisoner; Mr. Thorp only says he received it with the other cash. The counsel states it was not a forged order; it remains with you to say now, whether the prisoner was guilty of uttering with intent to defraud; whoever altered it was guilty of the forgery, but whether it was done by the prisoner it does not appear.

His Honor said that he would not pass sentence then, and the prisoner was removed from the bar; just after his removal, a female relative outside went off in hysteric tis, from the concern she felt at the distressing situation of the prisoner; her cries were most affecting.

[1] See also Tasmanian, 11 December 1840; Hobart Town Advertiser, 8 December 1840 (stating the sentence to be transportation for 15 years). According to AOT SC 41/5, p. 64, Brown was sent by order of the Colonial Secretary to Port Arthur for five years and his conduct was to be reported.

R. v. Brown