James Brien, 1903 – Threatening letter
Below also see: James Brien, 1903 – False pretence
The National Advocate, Thu 13 Nov 1902 1
CHARGE OF BLACKMAIL.
A CASE FROM COWRA.
At the Central Police Court to-day before Mr Isaacs, SM, James Brien (34), farmer, was charged with sending a letter to James Jolliffe [sic] on or about October 24, at Warwick, near Cowra, threatening to accuse William Jolliffe, his son, with committing an infamous crime with intent to gain property from the said James Jolliffe.
Senior Constable Nutley stated that he met accused in Pitt-street, and asked him if he had any land in Cowra. Accused replied in the affirmative, and witness then arrested him and took him to No. 1 Police Station. At the station witness charged accused with the offence, and he said, “I can prove the charge.” He subsequently said, “I spoke to my brother about it and he advised me to take proceedings against.” Witness asked that accused be remanded to Cowra.
The Bench remanded accused to appear at Cowra Police Court at ten am on 14th instant. Bail was allowed self in £50 and one surety in £50.
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The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 20 Nov 1902 2
Before Mr JT West, JP.
James Brien (on remand from Sydney).
Threatening to accuse William Joliffe with committing an infamous crime with intent thereby to gain property from one James Joliffe.
The deposition of Senior Constable Nultey, [sic] taken in Sydney, was as follows.—“I arrested accused in Pitt Street, with Constable Taylor, and asked him if he had some land at Cowra; he replied “Yes;” told him he was a constable and brought him to No. 1 police station; in reply to the charge of sending a threatening letter, at the police station, he said “I can prove the charge;” read the warrant produced to him yesterday morning, 11th instant, and he replied “I can prove the charge against the young fellow I saw him committing the offence in the gully. I spoke to my brother about it, and he advised me to take proceedings against him;” asked to have the accused remanded to Cowra, where the witnesses resided and the offence was alleged to have been committed.
By accused: You said “Down the gully,” you did not mention the river then.
Constable John Armstrong deposed he was stationed at Bathurst; received the accused, also the depositions and warrant produced, from Constable Rowe, of Sydney; brought him to Cowra lockup.
Remanded for eight days.
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The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 27 Nov 1902 3
Before the Police Magistrate and Mr
JT West, JP.
James Brien (on remand). Sending a letter to Wm Joliffe charging him with an infamous offence. Mr Phillips for the prosecution, Mr Gilcreest for the defence.
Mr Phillips said he was not prepared to proceed with the case and asked for a further remand.
Remanded for eight days.
Before the Police Magistrate and
Mr JT West, JP.
Before the Police Magistrate.
James Brien (on remand).
Threatening to accuse William Joliffe with committing an infamous crime with intent thereby to gain property from one James Joliffe.
Mr Phillips appeared for the prosecution and Mr Gilcreest for the accused.
James Joliffe deposed he was a farmer and resided at Warwick; knew the accused; had heard his information read and it was correct; witness rented the grazing right of a farm of 117 acres at Warwick from the accused; had obtained a lease of the farm for three years about six months ago; on the 24th October witness left his residence during the afternoon and returned home about 7.30 pm, when his wife handed him the letter produced; in consequence of something his wife said he went down to the paddock rented from the accused and saw about 80 head of horses there; on the following day he went to Cowra and saw Mr MT Phillips at about 7.30 am at his private residence, and gave him the letter in question; acting on the advice of Mr Phillips he went home and put the horses out of the paddock and handed them over to Mr Mooney and his son; in consequence of something told to him by Mr Mooney he went and had a conversation with Sen Sergt McDonald.
By Mr Gilcreest: I did not enter into any verbal agreement with accused after the lease had been signed; I told accused he could graze one horse in the paddock, but I did not tell him he could graze a number.
WA Stokes deposed he was a financial agent and resided at Cowra; knew both the accused and James Joliffe; produced a lease between those two parties for the grazing right of some land at Warwick; saw the parties execute the lease, which was dated March 20th, 1902; saw £30 paid as one year’s rent in advance for the property.
By Mr Gilcreest: Remember a conversation taking place at the time in reference to accused being allowed to run some stock on portion of the land referred to; there was a clause to that effect in the lease, but it was struck out by consent of both parties before the lease was signed; had heard part of a conversation between accused and Joliffe about the former being allowed to run some stock over all the property that had been rented by the latter, but could not say what decision they eventually came to.
James Miller, Crown Lands Agent, Cowra, deposed that accused was the holder of a homestead selection of 117 acres in the parish of Glenlogan; he produced the original application made by the accused for the land on January 19th 1899.
Thomas Francis Mooney deposed he was a grazier and resided near Condobolin; knew the accused; met him on the 23rd October on the North Logan road; had a conversation with accused about renting a grass paddock; accused stated he had a grass paddock and the could take in some horses; accused agreed to take the horses in at eighteen pence per head per week; witness’ son inspected the paddock; witness saw accused the next day, and, after they had arranged about the price for the paddock, accused asked witness if he could advance him £20 as he wanted it badly, and offered to give a mortgage over his property for the amount; witness asked if the place was encumbered and accused replied “No;” met the accused the next day at Kelly’s hotel and made the agreement (produced) with him for the lease of his land; Mr Kelly witnessed the agreement; when the agreement was signed he handed accused a cheque for £10; saw Joliffe the next day, and, in consequence of something that gentleman told him, he sent his son for the horses which had been at accused’s place; after the conversation with Joliffe he made enquiries for accused, and also ascertained the cheque had been cashed.
By Mr Gilcreest: I do not remember having heard the accused tell my son that the horses had been taken to the wrong paddock; at Kelly’s hotel accused said he would give me an acknowledgement for the advance of £20, and he then wrote the acknowledgement produced; would swear that accused did not say that the paper produces was given as a security over the land.
Mr Phillips: You got nothing for your £20?
Witness: I am afraid not.
Patrick Joseph Mooney deposed that he resided near Condobolin; he knew the accused; on October 23rd witness was driving some horses on the North Logan road when he met the accused, who asked where he was going; witness replied that he was taking the horses down to Steele’s paddock; accused said “Are they Mooney’s horses?” witness replied “Yes;” accused then asked if Mr Mooney had got grass for the balance of his horses, and upon witness replying in the negative he said “I have a paddock I was thinking about renting;” witness asked particulars about the paddock, and then went and brought his father and introduced him to accused; saw accused again that night; when returning from leaving the horses at Steele’s paddock he stopped at Kelly’s, at Warwick, and accused came and invited witness to stop at his place that night; agreed to do so, as accused said that he had partly arranged with witness’ father about leasing the paddock and that witness was to inspect it in the morning, and if his report was favourable that they could arrange terms; he inspected the paddock next morning with the accused; about 10 o’clock next morning he met accused, who gave him a letter and asked him to give it to Mr Joliffe; reached Joliffe’s place between 4 and 5 o’clock that afternoon and handed the letter he had received from accused to Mrs Joliffe; she opened the letter and made some remark; witness then placed the horses in the paddock; witness and his father stopped at Mr Hughes’ residence that night, and on the following day in consequence of a communication received from Messrs Rose & King, witness came to Cowra and met Mr Joliffe, and in consequence of what he said witness went and took charge of the horses.
By Mr Gilcreest: I know it was a letter I received from accused to give to Mr Joliffe because I saw Mrs Joliffe take it out of the envelope and read it.
Susan Joliffe deposed she was the wife of Jas Joliffe, and resided with her husband at Warwick, near Cowra; on October 24th last Mr Mooney, junr, handed her the letter produces, which she opened; and read; Mr Mooney was on horseback at the time and had some horses with him; he was alone; said something to him after reading the letter; her husband was over the river; when he returned home the same evening she gave him the letter and he shortly after went away somewhere.
The accused, who reserved his defence, was then committed to stand his trial at the Cowra Quarter Sessions on February 26th, 1903. Bail was allowed, accused in £50 and two sureties £25 each.
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The National Advocate, Fri 27 Feb 1903 4
COWRA QUARTER SESSIONS.
The quarter Sessions were held to-day before Acting Judge Hamilton. Mr Bavin was Crown Prosecutor.
Jas Brien was acquitted of a charge of sending a threatening letter.
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Cowra Guardian and Lachlan Agricultural Recorder, Sat 28 Feb 1903 5
A court of Quarter Sessions was opened here on Thursday before His Honor Acting Judge Hamilton.
Mr JT West, JP, was in attendance as Deputy Sheriff.
The following persons were sworn in as honorary magistrates.—Messrs Harry Mawby, Alfred Stimson Bayley Cobb, Francis Nicholas Allan, Richard Oats and James O’Brien.
James Brien, on bail, was charged with sending a letter to James Jolliffe, threatening to accuse William Jolliffe of an infamous crime with intent to extort property from the said Jolliffe.
Accused pleaded not guilty and was defended by Mr Gilcreest.
Jury.—William Tucker, John James Grant, James Delaney, Elijah Harvey Wright, William Butler, Thomas Hughes, James Dickie, John McInerney, Arthur Middlemis, Richard Bourke, John Gavin Campbell, and David Strachan.
Accused challenged five jurymen and the Crown one.
Mr Bevan in opening the case said the accused was charged under the Crimes Act with sending a threatening letter to James Jolliffe with intent to extort and gain property. It appears that Jolliffe had a farm near Warwick, and accused had 170 acres there, and in March of last year he leased it for grazing purposes for a period of three years, and an agreement was signed by accused and Jolliffe. In October accused had some conversation with Mr Mooney, and told him he had grass, and eventually Mooney agreed to give £30 for two months, with the right to take it for one month additional. Mr Mooney consequently placed his stock there and Jolliffe collected them and saw Mooney who showed him a lease, and Jolliffe allowed him to take the stock. Accused was not charged with obtaining money by false pretences but with sending a threatening letter with intent to extort or gain property.
His Honor.—There is no evidence as to meaning of the words “If you sue me.”
The Crown Prosecutor.—There is no evidence before the sending of the letter, but the accused sent the letter immediately after the arrangement with Mooney, and which was handed to Mrs Jolliffe to deliver to her husband.
His Honor said he did not like to withdraw a case from the jury. There was no evidence of the prisoner trying to prevent the right of action, and there did not appear to him to be any case against the accused. He would direct the jury to return a verdict of not guilty.
The jury having entered a verdict of not guilty His Honor discharged accused and remarked that he thought some further action should be taken against him.
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The Sydney Morning Herald, Mon 2 Mar 1903 6
DISTRICT COURTS AND QUARTER
The Quarter Sessions were held on Thursday. Three cases were tried. William Allen, charged with larceny of a horse, saddle, and bridle, pleaded guilty, and was sentenced to 18 months. James Brien was charged with sending a threatening letter. Without hearing evidence the Judge directed the jury to return a verdict of not guilty. The District Court cases were confined to minor issues. Acting Judge Hamilton presided.
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The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 5 Mar 1903 7
Before his Honor Acting Judge Hamilton.
The legal profession was represented by Mr Bevan (barrister), Crown Prosecutor, and Messrs Phillips, Garden, and Gilcreest, solicitors.
Following new magistrates were sworn in:– Messrs Harry Mawby, ASB Cobb, Richard Oats, Francis N Allan, and Jas O’Brien.
James Brien (on bail) was arraigned on an indictment which charged him with sending a letter to James Jolliffe threatening to accuse his son, William Jolliffe, with the commission of an infamous offence with intent to extort property from the said James Jolliffe.
Mr Gilcreest defended the accused, who pleaded not guilty.
Jury—Wm Tucker (foreman), JG Campbell, R Bourke, A Middlemis, John McInerney, senr, EH Wright, J Delaney, W Butler, JJ Grant, Thos Hughes, Jas Dickie, and D Strachan.
The Crown Prosecutor, in his opening address, stated that the accused was on his trial for sending a letter to James Jolliffe threatening to accuse his son William with intent to extort property. James Jolliffe was the holder of a farm at Warwick, near Cowra, and the accused was also the holder of a block of 170 acres in the same neighbourhood. Under a written agreement entered into in March last the accused leased his holding for a period of three years to James Jolliffe for grazing purposes. Accused in October, told Mr Mooney, of Condoblin, [sic] who was in quest of grass country, that his land was available, and he eventually rented the property to Mr Mooney for three months for £30, on the condition that he was to have the right to take it for an additional month. On the face of this Mr Mooney placed stock on the property, and upon James Jolliffe finding the animals there he collected them and called upon Mooney to remove them, to whom he subsequently showed his lease. Finding that he had put his foot in it accused wrote a letter to Jolliffe, which was handed to Mrs Jolliffe, threatening to accuse Wm Jolliffe with a criminal offence, with intent to intimidating James Jolliffe, and thereby compelling him to yield peaceable possession to Mooney of the property Jolliffe had previously leased from him. Accused subsequently departed for Sydney and was arrested there.
His Honor: There is nothing in the evidence adduced at the lower Court to show the meaning of the words in the letter “If you sue me.”
Crown Prosecutor: The letter was handed to Mrs Jolliffe for her husband immediately after the accused had entered into an arrangement with Mooney.
His Honor: There is no evidence of an intent to extort property, consequently I fail to see how the Crown can proceed.
The Crown Prosecutor admitted that this was correct.
His Honor was satisfied that there was no evidence of an attempt on the part of accused to deprive the parties concerned of the right of action, consequently he held there was no case against the accused. Under the circumstances he directed the jury to acquit the accused.
The jury accordingly obeyed the direction.
His Honor, in discharging the accused, remarked that his release was due to a technicality, but it did not follow that he was guiltless and that he would not be further charged.
Mr Gilcreest remarked that defendant was prepared with evidence which would shew a sufficient and valid reason for his letting the property.
The accused was then discharged.
James Brien, 1903
The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 12 Mar 1903 8
James Brien. Obtaining £20 from Thos F Mooney at Cowra by means of false representations on October 24th, 1902, with intent to defraud.
Remanded for eight days. Bail allowed, self in £50, and two sureties in £25 each, or one in £50.
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The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 19 Mar 1903 9
Before the Police Magistrate.
James Brien (on bail). Receiving money by false representations.
Mr Phillips for the prosecution, Mr Gilcreest for the defence.
Senr Sergt McDonald deposed to the arrest of the accused.
Thomas Francis Mooney deposed he was a farmer and grazier near Condobolin; met the accused on or about October 23rd last on the Cowra to Warwick road, a few miles from Cowra; told him he wanted a paddock for some horses, and accused replied “I have a paddock and can take them in if we can agree as to the price;” he also said the paddock was 4 or 5 miles lower down the river, and that he wanted 2/- per head per week for the agistment of the horses; witness replied that he was paying Mr Steel, Warwick, 1/6 per head for horses he had in his paddock; accused then said “I am satisfied with that;” witness then told him that he would send his son to inspect the paddock and ascertain if the grass there was good enough, and that if he met witness next morning he would tell him whether the terms were acceptable or not; met the accused next morning in the lane opposite Mr Fagan’s yards at Mulyan and informed him that he was satisfied with his son’s report on the paddock; accused replied “I would rather let the paddock straight out than take horses in by the head. I will take £3 per week; witness said he had about 70 head of horses and would give him £3 per week for three months; accused and witness were alone during the conversation; accused said “I would like you to take the paddock for four months, and I will want £20 in advance on account of rent;” witness said he would take the paddock for four months, provided there was sufficient grass to last that period; accused said he was going to Cowra and asked witness to accompany him; replied that he could not go then as he had to assist his son to brand some horses, and added that he would go to town as soon as the branding was over; accused arranged to meet witness at Kelly’s hotel the same evening, viz October, 24th, the appointment was kept; the agreement produced dated October 24th, 1902, was on that occasion written by the accused in witness’ presence; accused agreed therein to rent witness 117 acres of land at £3 per week for three months, with the option of renting the piece for an additional month at the same rate; accused said he wanted £20 for a certain purpose and offered to give witness a mortgage over the place if he would give him that sum; witness said mortgages were expensive matters and offered to advance him the sum mentioned on account of rent; gave him a cheque for the amount and he gave witness an acknowledgement; accused said nothing about the property being encumbered in any way; he did not say he had leased it to James Joliffe; after the agreement was signed witness handed the accused his cheque, drawn on the AJS Bank, Condobolin, for £20; the signing of agreement and payment of cheque took place at Kelly’s hotel, Cowra, between 4 and 6 pm on October 24th last; was not aware at the time that accused had leased the land to another person; was not aware of his own knowledge that his horses were put in accused’s paddock; in consequence of something he heard he had a conversation with James Joliffe on October 25th and ascertained that the horses of witness that had been placed in accused’s paddock had been brought to Cowra by him; was then forced to rent a paddock from Mr Street for the horses; did not see accused from the time he gave him the cheque until he saw him before the court on another charge; was aware that the cheque had been cashed.
By Mr Gilcreest: Before the agreement was signed something was said about the number of horses to be grazed; accused did not say I was not to put more than 50 head in the paddock; nothing was said about limiting the number; I told accused that I had about 79 horses; am sure I did not say 49; did not say to accused “Leave that to me. I will see that the place is not overstocked;” gave evidence against the accused in connection with another charge; do not remember swearing on that occasion that I asked accused if his property was encumbered; accused asked me for a loan of £20 on his property, but I declined to have anything to do with a mortgage; I advanced him the sum asked for on account of rent on the condition that he gave me an acknowledgement to that effect; did not see the paddock before renting it; did not ask the accused if he had a title to the land; when I met the accused he appeared to be a straightforward, honest man; the fact of his offering to give me a mortgage over the land did not induce me to advance him the £20; it was given on account of rent and not as a loan; it is not likely I would lend a perfect stranger £20.
Caroline Poole deposed she was licensee of the Fitzroy Hotel; the accused cashed a cheque signed FT Mooney with her on October 24 last.
Rowland John Parker deposed he was manager of the AJS Bank at Condobolin; produced a cheque dated October 24th, 1902, drawn by Thos Francis Mooney on the AJS Bank, Condobolin, in favour of James Brine; [sic] the signature is that of Mr Mooney, who was then in the court and who had an account with witness’ branch; the cheque was received and paid by him on October 28th last.
Patrick Joseph Mooney deposed he was a grazier and resided at Condobolin; met the accused on October 23rd in a lane opposite Mr Fagan’s residence, Mulyan, just after he (witness) had drafted 20 horses from others; accused asked him where he was going with the horses; replied to Mr Steele’s paddock for grass; he asked witness if he had grass for the remainder, 79 head, and received a reply in the negative; he asked who owned the horses; replied Mooney; he then said he had a paddock he was thinking about renting and described it, adding that he could take all the horses; witness told him he could not arrange with him then, but he would see his father about the matter; subsequently introduced his father to accused and then left for Steele’s with the horses, leaving his father and accused together; later on met accused at Kelly’s selection; Steele’s property is between accused’s place and Kelly’s; intended to stay at the latter place, but upon accused inviting him to stay at his place he did so; he said witness’ father had directed him to ask witness to inspect his (accused’s) paddock; made the inspection the first thing on the following morning; told him that he thought the paddock would suit, but that he could not enter into any arrangement until he had seen his father; accused replied that he would be up later on; saw the accused shortly after near Mr Fagan’s yards and witness’ father went to meet him; after the branding witness brought the horses the same evening to accused’s place, but the accused was not then at home; before leaving Mr Fagan’s about 10 am, accused handed witness a letter which he asked him to give to Mr Joliffe; gave it to Mrs Joliffe, who, after reading it, made some remark; after placing the horses in accused’s paddock he came to Cowra and stayed that night at a place about three miles from town; owing to something he heard he came to Cowra next morning and after hearing something from Mr Joliffe he took the horses from him that had been placed in accused’s paddock the day before and subsequently placed them in a paddock temporarily; next day he placed them in Mr Street’s paddock.
James Joliffe deposed he was a farmer residing near accused’s place at Warwick; accused had 117 acres of land which was under lease to witness on October 24th last; there was a written lease, which he now produced; it is dated March 26th, 1902, the tenure being three years from that date at a rental of £30 per annum; paid accused £30, the first years rent in advance; knew Mr Mooney and his son; was informed by his wife when he returned home at about sundown on October 24th last, that Mr Mooney junior had placed some horses in accused’s paddock that day; she also handed him a letter from accused, which he read; brought between 70 and 80 horses of Mr Mooney’s from accused’s paddock to Cowra on the following morning; after seeing Mr MT Phillips, solicitor, had a conversation with the Messrs Mooney, to whom he eventually delivered the horses; never gave the accused authority to rent the paddock to Mr Mooney or any other person; after March 26th accused had no power to rent the land without witness’ permission.
Wm Ashman Stokes deposed he was a financial agent and resided at Cowra; was present when the lease produced was signed by the accused; saw Joliffe pay him £30, one year’s rent in advance according to the document.
Accused, [James Brien] who reserved his defence, was committed to stand his trial at the Quarter Sessions to be holden in Cowra on June 25th next. Bail, accused in £50 and two sureties £25 each.
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Cowra Guardian and Lachlan Agricultural Recorder, Sat 27 Jun 1903 10
The Quarter Sessions were opened at the Court House on Thursday, before his Honor, Acting judge Harris. Mr JT West, JP, also occupied a seat on the Bench.
Mr Merewether conducted the cases for the Crown.
James Brien (on bail) was charged with obtaining £20 from Francis Thomas Mooney by means of false pretences.
Pleaded not guilty.
Mr Gilcreest defended the accused.
Jury.—Ralph Whiteman, Robert Toshack, Jas Links, Chas Young (Welton Dale), Hy Davidson, Benjamin Adams, Daniel Wm Holte, Cecil Kirk, CK Rose (foreman), Hy Chas Brown, Jas S Poignand, Alfred Chambers, FC Crowe.
The accused challenged eight jurymen.
The evidence submitted was similar to that taken at the Police Court and published in the columns of the “Guardian.”
The jury returned a verdict of guilty and accused was remanded till this morning (Saturday) for sentence.
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The Sydney Morning Herald, Mon 29 Jun 1903 11
The Quarter Sessions were opened on Tuesday. Acting Judge Harris presided. The Crown Prosecutor was Mr Merewether. Two cases occupied the court till to-day, when James Brien, charged with false pretences, was found guilty, and sentenced to two and a half years’ imprisonment in Goulburn Gaol.
Albert Dawes was charged with embezzlement, and acquitted.
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The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 2 Jul 1903 12
Before His Honor Acting Judge Harris.
Following legal gentlemen were in attendance: Messrs Merewether (Crown Prosecutor), Phillips, Garden, Gilcreest, Kearney (Orange), and Kenny (Bathurst).
Alfred Dawes (on bail) was arraigned on a charge of embezzlement.
James Brien (on bail) was charged with obtaining £20 from TF Mooney by means of false representations.
Mr Gilcreest defended accused, who pleaded not guilty.
Jury: CK Rose (foreman), H Davidson, R Toshack, JS Poignand, A Chambers, FC Crowe, TC Brown, Jas Linke, R Whiteman, C Young, B Adams, and DH Holt.
After accused’s advocate had exercised his right in respect to challenging eight jurors he challenged Mr CK Rose.
His Honor thereupon called upon him to show cause, and appointed Messrs Joseph Ousby and A Chambers as triers. It then transpired that the only objection that could be offered was that he (Mr Gilcreest) had once personally prosecuted (unsuccessfully) Mr Rose for assault. This having been pronounced untenable as a cause, Mr Rose was sworn.
Evidence for the Crown was given by Jas Miller, C[rown] L[and] A[gent], TF [ Mooney] and PJ Mooney, Jas Jolliffe, and WA Stokes.
As the details have been published in the “Free Press” on three former occasions there is no necessity to repeat them. The only fresh feature was the production of a document signed by Jolliffe and undated, stating that in consideration of of [sic] the receipt of a certain sum of money the lease of land let by accused to Jolliffe had been cancelled. Jolliffe stated that he had signed the document while drunk a couple of weeks ago, also that additions had been made to it since then.
Before entering on his defence Mr Gilcreest, who had his portion of the table covered with legal lore, submitted a number of technical points for his Honor’s consideration.
After a lengthy argument his Honor decided to look into the cases cited and to express an opinion concerning their value after lunch.
On the court resuming at 2.15 pm his Honor held that there was nothing whatever in the points raised, hence he had decided to let the case go to the jury.
The accused [James Brien] made a statement to the following effect:—“I am 34 years of age and have been in the district all my life. I have never given the police any trouble. As the fences were going to ruin on the farm I rented to Jolliffe I allowed him £5 in the second week in October to cancel the lease. Jolliffee [sic] said if I gave him back £15 he would consent to the lease being cancelled. This I refused to do, and then the amount was fixed at £5. After this arrangement I came to Cowra and told young Mr Mooney that I would take his horses into my paddock. Mr Mooney, after seeing his father, brought the horses to my place. I asked Mr Mooney 1/- per head per week, but it was finally agreed that I was to let the place for three months at £3 per week. Then wrote to Jolliffe and asked him not to sue me for the refund on account of rent. Jolliffe shortly after took criminal proceedings against me. I never intended to defraud Mr Mooney of a penny.”
John Alexander Brien deposed he was a labourer and resided with the accused (his brother) at Warwick, near Cowra; while at his brother’s place, which was the only land he held, in September and October last, he noticed that the fence was broken down and that stock were passing in and out of the paddock at will; about the end of September his brother told him something; saw accused with Jolliffe in February at Warwick; it was about a week or so before the last case against accused; the conversation that took place had reference to Jolliffe giving up the place; saw Jolliffe sign the paper produced on that occasion; could not state whose handwriting it was in; witnessed Jolliffe’s signature; Jolliffe wanted accused to refund him £15 he had paid on account of rent, after some argument it was finally agreed that accused was to refund Jolliffe £5; Jolliffe’s receipt of £5 was witnessed by witness.
By Mr Merewether: Was staying with accused at the time; Jolliffe happened to call in; was not aware the document was ready for signature; the handwriting resembles accused’s; knew his handwriting; it is his handwriting; my age is 30; would not swear the document was not written before Jolliffe called; it was not written in my presence; the signing took place in the kitchen, where there was pen and ink; am sure Jolliffe was quite sober when he signed; did not read the contents; have seen the letter produced before, but not before it was sent to Jolliffe; heard some of the words mentioned when accused was on his first trial; the letter was written without my consent; believed that the statement concerning the commission of a felony by young Jolliffe was true; did not countenance the letter, but told the accused to inform the police; did not object to the letter or give information to the police; did not see young Jolliffe commit the offence; accused showed me where it had taken place; the letter says I saw the offence being committed and, although that is not true, I am not angry with accused; Jolliffe told me about the letter; I have done nothing to disabuse the public mind regarding the falsity of the statement that I had witnessed a felony; the document signed by Jolliffe was first read to him and he appeared to understand it.
Mr Gilcreest having addressed the jury, his Honor said that section 181 of the Criminal Law Amendment Act completely upset all the points that had been raised by the accused’s advocate. He concluded that Mr Gilcreest had read the Act referred to or he would have done so himself. It was evident to him that Mr Gilcreest had not read the Act, otherwise he would never have resorted to such a course.
Mr Gilcreest concluded his address.
Mr Merewether, in reply, characterised the case as one of the most dastardly he had known. After reviewing the evidence he very strongly commented on the act of getting Jolliffe to sign a document while he was intoxicated.
His Honor, in summing up, remarked that the time of the court had been wasted through an attempt being made to throw dust in the eyes of the judge and jury. A case that should have occupied not more than two hours in hearing had been prolonged to six hours through the introduction of valueless evidence and untenable points of law. He next dwelt on the principal features of the evidence, and concluded by directing the jury to give the benefit of any reasonable doubt, he warned them, however, against creating doubts by searching for visionary facts.
The jury, after an absence of about 15 minutes, returned into Court with a verdict of guilty.
Accused was remanded for sentence.
Mr Gilcreest asked his Honor to reserve the points stated by him, and in addition two other points one being that the jury had been wrongly directed regarding a letter that had been the subject of a former prosecution.
His Honor denied point blank that he directed the jury in the manner stated. He would not, however, argue, the matter than, but asked the advocate to submit all his points in writing to him on the following day.
James Brien, remanded for sentence, when placed in the dock wept bitterly and sobbed loudly.
Evidence as to character was given by Constable Meagher, John Chivers, and CT Deeley. It having been stated that the accused had been confined in a lunatic asylum, Brien stated that he had been under treatment for 12 months in the Lunatic Asylum at Parramatta, having been discharged in 1890.
His Honor said the case was a most painful one. The evidence given as to character showed that the accused had not been a criminal. He, however, regarded the verdict of the jury as perfectly justifiable. There was no doubt that a deliberate swindle had been perpetrated. It was evident to him that accused and his brother had conspired to defeat the ends of justice by entrapping a poor old man while he was drunk, and inducing him to sign a document, that it was cunningly assumed, would exculpate accused. The offence was surrounded by aggravating circumstances, and while sitting as a Judge he had to recognise the fact in dispensing justice. In view of the facts he sentenced the accused to two and a half years imprisonment with hard labour in Goulburn gaol.
Regarding the points, Mr Gilcreest had asked his Honor to reserve, it was arranged, if Mr Gilcreest still wished to press them, that they should be handed to him in writing before 3.30 pm.
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Cowra Guardian and Lachlan Agricultural Recorder, Sat 4 Jul 1903 13
LOCAL AND GENERAL NEWS.
QUARTER SESSIONS.—As reported in our columns last week , James Brien at the Quarter Sessions on Friday was found guilty of obtaining money by means of false pretence, and remanded till the following day for sentence. He was accordingly brought up on Saturday morning and sentenced to 2½ years in Goulburn gaol.
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The Sydney Morning Herald, Sat 15 Aug 1903 14
Friday, August 14.
APPEAL AGAINST CONVICTION
Rex v Brien.
Mr Mocatta, instructed by Mr DT Gilcreest, of Cowra (Messrs Russell and Russell), appeared for the prisoner in support of an appeal against the conviction; and Mr Murray, instructed by the Crown Solicitor, in support of the conviction. From the case stated for the opinion of the Court by Mr Acting Chairman of Quarter Sessions Harris, it appeared that Brien was tried before him at Cowra Quarter Sessions in June 26 last on an indictment charging him with obtaining money by false pretences. The allegation of false pretence was that the accused falsely represented to Thomas Francis Mooney that he than had full right and power to let the grazing rights in certain land, and that the land was unencumbered in respect of such grazing rights, by means of which pretence he obtained from Mooney the sum of £20. During the trial a lease from accused to one Jolliffe, and also the original application of the accused for the land expressed to be leased by him to Jolliffe, as showing that he had no other land in the district, were admitted in evidence though objected to buy Mr Gilcreest, who appeared for accused. A letter written by the accused was put in without objection, and it transpired that, in consequence of sending this letter, accused at a previous sitting of the Court had been indicted under section 100 of the Crimes Act on a charge of demanding property by means of a threat. Evidence was also given that on this charge an acquittal was directed on a point of law. The accused was found guilty, and the questions reserved for the opinion of the Court were:—1. Whether his Honor was right in admitting the accused’s application for a homestead lease and the lease to Jolliffe as evidence against him. 2. Whether his Honor was right in allowing the case to go to the jury. Mr Mocatta, in the course of his argument, contended that the lease to Jolliffe was null and void, being prohibited under section 121 of the Crown Lands Act of 1884 . That being so, there was no false representation by the accused that the land was unencumbered.
After argument. Mr Justice Owen said it appeared to him that the lease by the accused to Jolliffe was really an alienation of the land. The lessor, as soon as the lease was granted by him, had no right to go on the land except with the leave of the lessee. He was bound to go off the land, and remain off it during the period of the lease, and therefore it was an alienation of the land to the lessee, who for the term of the lease had absolute domination over the land. That being so, the lease, in his opinion, came within the 121st section of the Land Act of 1884 . The Land Act of 1895 , which provided for homestead selections, made section 121 apply to homestead selections just in the same way as it did to other selections, and therefore all the Court had to consider was whether the lease in question to Jolliffe was prohibited by section 121. In his opinion it was absolutely void, both in law and equity, by the provisions of that section, that being so the lease ought not to have been admitted in evidence at all. If it had not been admitted in evidence the whole case for the Crown would have failed, because the case; which was made by the Crown was that the accused had entered into this lease with Jolliffe, and that while the lease was in existence accused entered into an agreement with Mooney for the purpose of letting this same piece of land, and told him it was unencumbered. That was the alleged false pretence set out in the indictment, and is therefore the lease to Jolliffe was improperly admitted in evidence it appeared to him the whole case for the Crown fell to the ground, and the conviction must be set aside.
Mr Justice Simpson said he was unable to come to the conclusion that the lease was void under the 121st section of the Land Act of 1884. He was by no means satisfied that it was the intention of the Legislature to prevent the holder of a settlement lease from granting to another for a certain number of years the grazing rights over the whole or any portion of the land comprised in the lease. Though there were words of demise in the lease, he thought it was simply a transfer to Jolliffe of the right to graze over the land comprised in the settlement lease. The accused, therefore, knew that he made a false representation, and that being so the conviction, in his opinion, ought to be upheld.
Mr Justice Pring concurred with Mr Justice Owen.
1 The National Advocate, Thu 13 Nov 1902, p. 2.
2 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 20 Nov 1902, p. 2. Emphasis added.
3 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 27 Nov 1902, pp. 2, 5. Emphasis added.
4 The National Advocate, Fri 27 Feb 1903, p. 2.
5 Cowra Guardian and Lachlan Agricultural Recorder, Sat 28 Feb 1903, p. 3.
6 The Sydney Morning Herald, Mon 2 Mar 1903, p. 8. Emphasis added.
7 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 5 Mar 1903, p. 2.
8 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 12 Mar 1903, p. 3.
9 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 19 Mar 1903, p. 3.
10 Cowra Guardian and Lachlan Agricultural Recorder, Sat 27 Jun 1903, p. 2.
11 The Sydney Morning Herald, Mon 29 Jun 1903, p. 8.
12 The Cowra Free Press and Canowindra, Goolagong, Cargo, Grenfell and Young General Advertiser, Thu 2 Jul 1903, p. 2. Emphasis added.
13 Cowra Guardian and Lachlan Agricultural Recorder, Sat 4 Jul 1903, p. 2.
14 The Sydney Morning Herald, Sat 15 Aug 1903, p. 11.