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[embezzlement of public funds – Crown Solicitor – objection against information] R. v. Ross Supreme Court of Montagu J., Source: Launceston Courier, Mr. Hugh Ross was arraigned for having, in his former capacity of Crown Solicitor, embezzled the several sums of 210l 2s. 8d,m 180l, and 302l, monies belonging to the Crown. To this charge the prisoner pleaded Not Guilty. In consequence of the number of jurymen challenged by Mr. Macdowell, counsel for the prisoner, much time elapsed before an acceptable empanel could be completed and sworn formis deferentions. This having at last been achieved, the Attorney-General rose and opened the case for the prosecution, when the following witnesses were called - Mr. John Roberts, solicitor. - In August last was employed in Mr. Allport’s office, on or about the 25th August a cheque was received from Messrs. Gleadow and Henty; it was an order on the Derwent Bank signed by Gilles and Co., for the payment of £302; took it to the Bank and got it accepted (produced); believe the receipt which it bears is in Ross’s hand-writing he received it on behalf of the Crown, in his capacity of Crown Solicitor; Mr. Allport is the Hobart Town agent for Messrs. Gleadow and Henty, and I, as clerk to him then, know that it was transmitted on account of Mr. Pearson, and that he would make out a receipt for which I several times called at his office; saw him more than twice on the subject; he said that a mistake had been made by the Collector of Internal Revenue in the calculations of the interest, and that he wished to communicate with the Government. Mr. Joseph Dixon, cashier of the Derwent Bank - (Before-mentioned check, dated 24th August, produced to witness.) Paid the amount on the 21st September; believe Mr. Ross was acting as Crown Solicitor; the words “received, H. Ross” were written by him on obtaining the money; Archer, Gilles and Co. have been debited with the amount. Mr. A. Turnbull. - Have been Collector of Internal Revenue since the 8th August, 1840, and am so still; Mr. Ross received his monthly salary as Crown Solicitor and Clerk, of the Peace; was paid, I think, up to December, 1840. By Mr. Macdowell - Know that I signed cheques, but did not see him receive the money. His Honor. - Then this cannot be taken as evidence. Mr. Turnbull, by the Attorney-General - Between August and December, 1840, Mr. Ross has frequently conferred with me as Crown Solicitor.. By Mr. Macdowell. - Do not remember ever having seen money paid to or received by Mr. Ross as Crown Solicitor; it was not part of my duty to give the Crown Solicitor instructions for the recovery of money due to the Government; never gave him any verbal instructions; knew a person of the name of Temple Pearson; had a conference with Mr. Ross on the subjects of the claims which the Government had on a class of debts incurred at a land sale in 1828, of which Mr. Pearson’s formed one have never received any money from Mr. Ross on account of Mr. Pearson; in my office the chief clerk usually receives the money; receipts are signed by me for sums paid in; the person paying makes an entry in the books. Here the Attorney-General
made an apology for diverging from that part of the enquiry, to
ask whether Mr. Turnbull had ever had any conversation with Mr.
Ross on the subject of the rent of By Mr. Macdowell. - There were two clerks in my office when I first undertook its duties. In this part of his examination Dr. Turnbull, apparently fancying that the prisoner’s counsel referred to the number, though the question tended to the identity of the individuals comprising the office, said, “the same number still exists.” Mr. Macdowell. - My question, sir, is sufficiently intelligible, and I demand that you answer it straightforward. Dr. Turnbull. - I have already done so, and repeat that the same number does exist. Mr. Macdowell. - Now, Dr Turnbull, I again demand that you give me a direct answer to a question which you will gain nothing by endeavouring to evade. Dr. Turnbull. - I do not wish to gain anything by it; my answers are given to the best of my ability, and I must look to the Bench for protection against remarks such as are at present falling from you. Mr. Macdowell. - I have not the least doubt but that the Court will, should my remarks be thought to exceed the rights which I possess as counsel for the prisoner, be ready to afford, you that protection which you call for at its hands; but, on the other hand, direct answers to the questions which I couch, in language to be understood by the meanest intellect, is what I am entitled to, and such will I obtain. His Honor. - I think Mr. Macdowell’s question perfectly intelligible, and he certainly is entirely to a direct answer; Dr. Turnbull, however, seems not to have seized its import, and will, no doubt, on a repetition, afford such information as he may be able to give. Examination continued by Mr. Macdowell. - The person, who has left is Mr. Reid; do not know when he left; believe it was a month or two after August, 1840; have not seen him since he left the office; have not personally received money from any person in my capacity of Collector of Internal Revenue, have done so by letter; did not receive the money to which you allude from either of the clerks; do not sign blank receipts; the grant would have been delivered up on the Crown Solicitor’s receipt, although the money had not been paid into the Treasury; I should add, that perhaps the strict course would be not to issue the grant except on the money being tendered, but as far as I myself am concerned the receipt of the Crown Solicitor would be a sufficient guarantee for delivery of the document; do not remember any instance which any money was paid into Mr. Reid’s hands, though, on indisposition of the chief clerk, it would have been his duty act; every part of Internal Revenue is paid into my office; certain of the sums are received at the various public offices; the Crown Solicitor has no control over the Internal Revenue; it is now the duty of that functionary to recover, by summary process, sums due to the Government; at that time he received his instructions to act from the Colonial Secretary. Mr. Macdowell. - Suppose a person were fined under the Police Act - suppose for playing at marbles on Sundays, - would you receive such a fine? Dr. Turnbull. - Should not take it without knowing how the claim had been incurred. By the Attorney-General. - Do not know any instance in which the absence of the chief clerk caused the second to replace him, though I think it very probable that such may have happened. Mr. George Andrew McKeig, chief clerk in the office of the Collector of Internal Revenue - knew Mr. H. Ross, and knew him in August, 1840; have transacted matters of business with him in his capacity of Crown Solicitor; never conferred with him on the subject of Mr. Pearson’s debt; do not know anything further of that matter than what appears on the books, (one produced, belonging, to the Internal Revenue Office, and kept by witness,) - it is an account of land-sales, keep the books of the Internal Revenue Office, and receive the monies which are paid in; have received sums from Mr. H. Ross since lst August, 1840, but none on account of Mr. Pearson, neither for the rent of Maria Island; Mr. Ross has, as Crown Solicitor, signed receipts for monies paid into our office; may have been out of the office during some short time, and in that case the second clerk would have received money. Mr. Charles Seal, by the Attorney-General - Rented Maria Island from the Crown; a dispute arose as to the payment, and I was, in the beginning of 1840, sued for rent by Mr. Ross, in consequence of which I paid him the sum of £180, through a judgment given by this Court against me; I left this cheque (produced) under cover at his office; the lines acknowledging receipt, signed “H. Ross,” are in his handwriting; another for £303 was given personally by me to Mr. Ross, in consequence of another judgment; he said that he would shortly forward me a receipt for the two sums. By Mr. Macdowell - the sums paid by me were not the whole amount due; I have some hope of getting it back; have made a proposition to the Government, but have not had time to receive an answer to my communication. Mr. Thomas Giblin, clerk in the Van Diemen’s Land Bank - At the end of 1840, Mr. Charles Seal had an account at our bank; the cheque for 180l, signed by him in favour of Mr. Ross, was presented at our bank by the latter, and paid to him by the cashier in my presence. Mr. Mitchell, ex-assistant Colonial Secretary, was called by the Attorney-General, but his examination was objected to by Mr. Macdowell, on the grounds that he had not been examined at the Police-office, and that the meaning of a recent act of parliament, setting forth that the prisoner is entitled to know what is the nature of the evidence to be adduced, would be defeated, if such be allowed. The learned counsel, after referring to the precedent established in the case of Curvoisier before the Old Bailey, said that Mr. Mitchell had not been called during the fortnight’s examination, which the case had undergone at the Police-office, though the office of that gentleman was immediately adjoining; and if it were allowed as competent for the Crown to produce a certain number of witnesses before a grand jury to enable them to find a true bill, and afterwards to increase the number before the Court, the express intention of the act, would be grievously thwarted. Mr. Macdowell was ignorant as to the nature of the testimony intended to be elicited from Mr. Mitchell; it might be unimportant, or quite irrelevant to the case; as, on the other hand, it might be extremely prejudicial to the prisoner. His Honor could not sanction the objections raised by the learned counsel, who appeared to him to have taken an erroneous view of the subject. The meaning of the Act was rather on behalf of the public than on that of the prisoner, though His Honor thought it the duty of the magistrate to see that as complete a knowledge as possible of the evidence to be brought against him should be communicated to the prisoner. The gist of Mr. Mitchell’s examination tended to prove that Mr. Ross had, on several occasions, about the 15th of January, 1841, broken his appointment to meet him for the purpose of receiving decisive instructions for suing in recovery of Crown debts, as also to render an account of monies, that he had on one occasion given the death of his child as a reason for non-attendance, and on another that he was going to New Norfolk for a day or two. Witness believed that up to the present date no account had been rendered. Mr. Macdowell then rose to submit to the Court, that the case ought not to be allowed to go to the jury, on each of the three following grounds:- 1st. That the information should, on the face of it, have shown that the prisoner came within the meaning of the Act, which requires a statement of agency or other capacity, in which the supposed delinquent had acted. The present did not even set forth whether Mr. Ross was a labourer, a gentleman, or what else. 2nd. That by the testimony of Dr. Turnbull it had been distinctly shown that the Crown Solicitor does not by virtue of his office, receive a fraction. It is his duty as attorney to the Crown, to recover by legal process; and it must be a strange perversion of the terms of the Act which refers to persons “entrusted” with public monies, to contend that the term applies to one whose express duty is to extort by the often very summary measures of law. 3rd. To constitute embezzlement it is required not only to prove non-payment of money, but also an affirmation that it has never been received, which affirmation could not have been obtained from Mr. Ross, since he had not even been required to render an account; so that, under the merits of the evidence as it stood, it was peremptorily to be inferred, that, had he been called on so to do, a satisfactory statement might have been afforded. After hearing the refuting arguments laid down by the Attorney-General, his Honor gave as his decision, that the case should go to the jury. His Honor summed up with great precision and perspicuity, divesting that portion of the testimony relevant to the case of the surplus and extraneous matter which appeared likely to embarrass the jury, who, after an absence of about three quarters of an hour, returned a verdict of “Not Guilty”. The prisoner, however, stood remanded to undergo a trial for a case of embezzlement in his capacity of Clerk of the Peace. [Since writing the above, Mr. Ross has, this day, submitted to the second trial, which broke down on the side of the prosecution, and he has in consequence been set at liberty.[ - Hobart Town Courier Montagu J., Source: Mr Hugh Ross was placed at the
bar upon a second information, charged with embezzling on The Attorney-General commenced by pointing out the several accounts of embezzlement with which the prisoner stood charged. He requested the jury to pay great attention to the evidence which would be brought before them, and if they did not consider it substantial, he asked not the verdict at their hands. Mr. Augustus Parsons. - I was a clerk in the Audit Office in December; this document was an account current between the Clerk of the Peace and H. M. Government; I could not swear to Mr. Ross’ handwriting; I cannot say when I received the document, it was after October, 1840; another document produced in court witness stated he had seen it before, it contained a receipt of Mr. Ross from the Treasury; he gave them all up to Mr. Perry. Mr. W. Yeoland. - On December, 1840, I was Clerk of the Treasury Office; knew the prisoner; he was Crown Solicitor and Clerk of the Peace; I have paid him his salary as such; a cheque was then produced in favour of Mr. Ross, for £204 directed to the Cashier of the Bank of Australasia; I gave it to Mr. Ross; the sum consisted of various items for the different offices which he held, and other government expenses. Mr. ------- I am Cashier at the Bank of Australasia; I paid this cheque to the bearer; do not know who; it was from the funds of the Colonial Treasury; this was the 24th December. M. Fisher. - I believe the handwriting upon this document to be Mr. Ross’; I was clerk to both the office of Crown Solicitor and Clerk of the Peace; I have seen Mr. Ross pay money to he witnesses; it was part of his duty; Mr. Ross received his instructions from the Chairman of Quarter Sessions to witnesses; I used to pay them sometimes; went to his office the last week in January; did not see Mr. Ross; he was living then at New Norfolk; the last time I saw him in his office was January 15, 1841. Cross-examined by Mr. McDowell. - Mr. Mackenzie and Mr. White paid the witnesses expenses sometimes. Mr. Forster. - Am Deputy Clerk of the Peace for New Norfolk; was so during the year 1840 and 1841; all orders given for witnesses expenses are directed to the Clerk of the Peace and paid by him. Joseph Hone, Esq. - Knew Mr. Ross; I am Chairman of the Quarter Sessions; I have seen Mr. Ross acting as Clerk of the Peace for Hobart Town; I have reason to believe no witnesses expenses can be paid unless their certificate be signed by me; I believe they were generally directed to the Clerk of the Peace. Cross-examined by Mr. McDowell.
- I have known instances where the witnesses have not sent in their
expenses for a long time after the sessions; each order was directed
for the Clerk of the Peace for each District; I believe Mr. Ross
was Clerk of the Peace for Mr. Perry. - I was appointed Crown Solicitor and Clerk of the Peace for Hobart Town, New Norfolk and Richmond on the 22nd January, 1841; my salary was as Clerk of the Peace £250, and Crown Solicitor £250; I pay witnesses expenses; their certificates come to me with the Chairman’s signature; the witnesses give me a receipt upon the back of their order; as clerk of the Peace I am an officer under the crown entrusted with the receipt of monies for the crown. Cross-examined by Mr. Dowell. - Mr. Ross’ papers were taken care of by the government; I examined some of them. Mr. McDowell rose an objection
against the information, stating that it charged the prisoner as
Clerk of the Peace for His Honor coincided with the learned counsel, and the prisoner was discharged without going to the jury. Montagu J., Source: Launceston Examiner, Mr. Hugh Ross’ trial came on last Wednesday. After
the evidence had been gone into, Mr. Macdowell (his counsel) objected
to the form of the information, and also contended that the prisoner
was not a person contemplated by the statute on which the information
was framed; in a short time the jury returned with a verdict of
not guilty. On Friday Mr. Ross was again arraigned for embezzlement
as Clerk of the Peace for the districts of [See also: Source:
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