Skip to Content

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

R v James [1825] NSWSupC 16

import duties - customs duties - excise - taxation - revenue - statutory construction - arrest of judgment - criminal procedure - criminal information

Supreme Court of New South Wales

Forbes C.J., 11 April, and 13 May 1825

Source: Sydney Gazette, 14 April 1825


Monday, April 11. --- This morning the Attorney General[1 ] presented an information against Mr. T.H. James, charging him with evading the Act of Parliament which imposes certain duties on all foreign spirits and tobacco imported for consumption in this Colony.  The case occupied the attention of the Court several hours: but, as full disclo[s]ures of this transaction were rendered public in the papers of Dec. [?] last, we may not be required to enter into the details of a trial which affords nothing new.  Suffice it to say, that the Chief Justice, in summing up, recommended the Jury, if they took the same view of the case which he did, to find a special verdict on the facts, leaving the points of law, found by the Counsel for the defendant, for the future consideration of the Court.

The Jury found --- ``That the defendant had applied for a permit to remove 50 skins of tobacco from the bonded store for exportation --- that he did not export the same --- but retained it in his own stores, with an intent to refrain from paying the duties."


Supreme Court. --- In the trial that took place on Monday last, the Colonial Secretary was called, in aid of the prosecution, to depose to the fact of an Order having been published in the Sydney Gazette, consequent upon the receipt of an Act of Parliament empowering the Colonial Government to impose duties on spirits and tobacco.  It was proved to be customary to insert all Government Orders in the Gazette, and that Orders so inserted were always considered official, for which purpose a notice appeared at the head of every Gazette.  Dr. Wardell, the Counsel for the defendant,[2 ] contended that the original Order should be produced, or evidence given of its being lost --- as such a loose custom could not do away with a direct rule of law to the contrary. --- His Honor the Chief Justice was pleased to decide, that publication in the Gazette, as the known Official Organ of Government, was sufficient.[3 ]



Source: Australian, 19 May 1825[4 ]



(In the month of November last, it will be recollected, that Mr. James removed a quantity of tobacco from the Bonded Stores to his own warehouse.  The Naval Officer on the understanding that the tobacco was intended for exportation, had given a permit for the removal for that purpose.  When it was ascertained that the tobacco was in the private stores, the magistrate interfered, seized, &c.  They discovered, however, that they had no power or jurisdiction to interfere in the business - they accordingly returned the tobacco.  Mr. James meanwhile paid the duties on the demand of the Naval Officer.  The Attorney General then filed an information against Mr. James for breach of a proclamation imposing duties, in pursuance of an Act of Parliament. - The trial came on during the sittings after last term, and a special verdict was recorded.

The following are the details of the further proceedings which came before the Court this day, and terminated this case.  They are given as fully and accurately as our Reporter was able to take them down.)

Dr. Wardell addressed the Court as Counsel for and on behalf of the defendant.

May it please your Honor - It will probably be within the recollection of the Court that the disposal of the case of the King v. James, was appointed for this day.  On a former occasion when I made a motion for quashing the whole proceedings, I stated that I had received a letter from the Attorney General, who informed me in that letter that the Governor had been pleased to order that no further proceedings be taken against my client.  I then stated that I did not feel satisfied to allow the matter to rest in that shape, but that in justice to Mr. James I wished to have all the proceedings quashed.

The Court - If the Attorney General consent to arrest judgment, the Court has only to act ministerially, and order judgment to be arrested.

Counsel - May it please your Honor - I consider that there is a material difference between allowing the verdict to stand on record with the judgment arrested, and quashing the proceeding altogether.  It is important to the interests of my client that the latter course should be pursued, if on argument I can furnish the Court with sufficient reasons for so doing.  Perhaps your Honor would wish to hear read the letter which the Attorney General has written on the subject.

The Court - Yes, certainly

"Sir,                                                                                       "Parramatta, May 2, 1825.

"I have laid before His Excellency the Governor the particulars of Mr. James' case, and I am directed to consent to take no further proceedings in it under any circumstances.  The hardship of the case, under Captain Piper's evidence, induces His Excellency to consider at least that step just.  I have not had an opportunity of considering the grounds which exist in the information against the conviction itself; but if you will shortly take the opinion of the Court upon these grounds, I shall not oppose the quashing of the verdict.  I shall be unable from sudden illness to be in Sydney until Thursday morning, but I have written to the Solicitor General[5 ] to appear in Court for me.

"I am, Sir, your obedient servant,

            "To Dr. Wardell.(Signed)                                               "S. Banister."

Counsel after reading the above letter, continued:

The arguments which I shall employ to shew that these proceedings ought to be set aside, are very brief.  Part of them are those which relate to what I consider the defects in the information, and which I submitted to the Court at the time of the trial.  I have additional arguments of great weight to adduce, but I will first of all briefly advert to those already named.  In the first count of the information it is stated that "the said Denmark Hill was a ship about to sail from the said Colony, but the said defendant did not remove the said tobacco on board the said ship," &c.  I contend that it ought to have been alleged that the ship had actually sailed, as well as that she was about to sail, for she might not yet have sailed.  She might have sunk in the harbour before the defendant could by possibility have put the tobacco on board, and in that case he might have been guilty of no offence, he might have committed no misdemeanor.

In the second count the defendant is alleged to have imported the tobacco.  Now it had been proved in evidence that Messrs. Aspinall and Brown imported it.  But the Attorney General contended on a former occasion that all parties might be considered as concerned in the act of importation - it therefore becomes a question what importation is.  There is a variety of cases clearly establishing that dropping anchor, breaking bulk, or coming into port with the intention to break bulk are importation in law - it had been held indeed that exportation does not take place till a vessels clears certain limits, the converse of that rule must therefore be true, that when a vessel comes within those limits, importation has taken place.

The Court - The cases are very clear on that point.  It has been decided that a vessel coming into a port from stress of weather, is an exception.

Counsel - The objection I have to make to the third and last count, is that the defendant is alleged to have "become proprietor of the tobacco under various false pretences."  It ought to have been stated what the false pretences were, because there might be a great many false pretences made, and yet none of them sufficient to support the information, and the Court and a Jury are not to look to evidence to explain an information.  The information ought to explain itself.  It ought to be concise, and yet so particular as that the whole of it, or a sufficient part, if supported by evidence, may produce conviction.  It must not state part only of a case, and leave a Jury to collect the meaning of it from witnesses.  But this count, and indeed the whole information, if proved to the letter, could not produce conviction.  The words "false pretences," are in fact too general.  I shall not advert to the conclusion of the various counts, which are in that respect defective, but shall pass on to those arguments which were not stated at the period of the trial.

In the first place I contend that this information will not lie at all, for there is a great difference between an Act of Parliament, creating a debt, and an Act of Parliament, making that an offence against the public, which was not an offence before.  This is not an offence against the public, it is a mere avoidance of a debt.  The King is only a creditor, and is in this respect the same as a common person, and can only sue for the money due.  Justice is satisfied when the money is paid, but when an offence is committed, justice cannot be satisfied without punishment, because the Act cannot be undone.  The defendant in this case was supposed to have incurred a debt, for which he might have been sued.  In support of this reasoning I may cite Reeves, who in his history of the law, when speaking of matters of revenue, says "Such law suits are calculated to interest the public, at least the crown, like a criminal trial, at the same time they are strictly of a mere pecuniary nature.

Having argued at this length, I now come to a consideration of the Act of Parliament, which enables the Governor to levy duties, and impose penalties, and of the Proclamation dated March the 4th, 1823, as connected with the above Act of Parliament.  The information on which the defendant has been prosecuted, is for a misdemeanor at Common Law, in having evaded the provisions of an Act of Parliament, or rather of a Proclamation made in pursuance of an Act of Parliament.  I am quite aware that if an Act of Parliament enact a law, and prescribe no penalty for a breach of it, that then an offender against it may be proceeded against according to the Common Law for a misdemeanor.  I am also aware that if the Act of Parliament prescribe the penalty by a separate substantive clause, that either the penalty prescribed may be enforced, or the Common Law remedy pursued, as if no penalty had been prescribed.  It is however equally true, according to an opinion of the Court, delivered by Lord Mansfied, as reported in 2 Burrows, that where an Act of Parliament makes that an offence which was not an offence before and also annexes a specific punishment for the breach of it - the particular punishment must be pursued and not the Common Law remedy.  If then the present case can be brought within any of the above rules, it must be the last - for the Act of Parliament enjoins the Governor to levy duties, and impose penalties.  His Excellency has, as he supposes, levied duties, but has imposed no penalties, and therefore has not conformed to the provisions of the Act of Parliament, which directs a specific punishment for a breach of the Act, viz. that punishment which the Governor should appoint.  The Proclamation therefore not being made in pursuance of the Act of Parliament, an infraction of the Proclamation was not a misdemeanor, and if the Proclamation had been made in pursuance of the Act of Parliament, i.e. had imposed a penalty then according to the case, in Burrows, that specific punishment only could have been adopted.

But the next argument which I have to adduce is stronger than all those I have now mentioned, is of itself quite sufficient to quash the whole proceedings.  I have formerly assumed that the Governor by his Proclamation has done something, I shall now shew that he has done absolutely nothing.  And I now fearlessly, and confidently assert, that at this moment there does not exist, and that there never has existed since the date of the Act of Parliament, any duty whatever on tobacco.  We have indeed an Act of Parliament which of itself enacts nothing, but gives power to the Governor to proclaim something.  We have a Proclamation, proclaiming nothing, and useless, as two negatives make an affirmative, out of two nothings - we can create an affirmative law, there is no law imposing a duty on tobacco.  To make my argument understood, it will be necessary to read part of the Act of Parliament alluded to.

The Court - The Court is well acquainted with the Act, it is therefore unnecessary to read it.  One clause enables the Governor to impose duties; another to alter those duties; and a third to prescribe penalties, &c.

Counsel - I will then only refer your Honor to the words in the Act, and the words in the Proclamation, particularly necessary for my argument.  The Act gives the Governor power to impose "a duty NOT EXCEEDING four shillings, for and upon each pound weight, &c. of tobacco," &c.  The Proclamation says, "Be it ordered and directed, that these several rates and duties aforegoing attach forthwith."  That a duty not exceeding four shillings in the pound attach forthwith on tobacco!  Now I would ask what would be three shillings and eleven pence three farthings?  A duty not exceeding four shillings in the pound!  What would be three shillings?  A duty not exceeding four shillings in the pound!  What would be one farthing?  A duty not exceeding four shillings in the pound!  Then unless we violate the commonest principle in law ---- a principle which every Tyro is taught in the first law book he looks into, namely, that every law shall have certainty as one of its ingredients, it is impossible to conclude that any duty has been imposed by the Proclamation, or exists on tobacco.  The words of the Proclamation mention no specific sum; the words of the Act mention no speeific [sic] sum, and the words a duty not exceeding four shillings, will answer equally well for a duty of one farthing, a halfpenny, a penny, a shilling, two, three shillings, &c.  The words indeed of the Act are the same, have the same effect, as if the Act had said the Governor may impose a duty of a farthing, halfpenny, penny, &c. so long as it is a duty not exceeding four shillings.  And the words of the Proclamation, "the duties aforegoing," would have had the same effect then that they have now.  Had the Act of Parliament said a duty of four shillings, and not exceeding ---- the words of the Proclamation would have been effective.  This Proclamation therefore is void on account of its uncertainty, and consequently there is no duty on tobacco.  No doubt the Governor intended to impose some duty ---- probably he meant to impose a duty of four shillings in the pound.  But we are not to go seeking about for the meaning of the Lawgiver, when the words of the law are so plain.  We must not attempt to extend by any thing like a liberal construction a penal law, and set at nought that sound maxim, that a law is void on account of uncertainty.  I repeat then that if the terms of the Act had been a duty of four shillings, and not exceeding, then, and then only could the Proclamation have become operative.  On these arguments, and for these reasons, first on account of the defects in the information; secondly because it is a statute raising a mere pecuniary claim, and the violation of it not coming within the general rule of law; and thirdly and lastly, because the Proclamation, intending to proclaim something, had proclaimed nothing, had imposed no duties, I submit to your honor that all these proceedings must be set aside.

The Court ---- I will give my decision on the first Court day next week.  I recollect that the first of the arguments was stated at the time of the trial, the other two are quite new to me.

Counsel --- Your Honor will recollect that at the time of the trial I mentioned that I had other arguments; but as your honor suggested that the Jury might find a special verdict, and the points be argued at a future day -

The Court  --- Yes, I remember.

The Solicitor General ---- I was directed on the part of the Attorney General to consent to any motion for setting aside the verdict, but as I did not anticipate any arguments of this magnitude and importance, I am of course not prepared to argue them.  I would suggest that your Honor's decision might be postponed till the Attorney General was able to attend himself.  This is a decision which will deeply affect the whole Colony ---- especially if it should turn out that there is no duty on tobacco.

The Court ---- If the first grounds of objection be fatal to the information, it will not be necessary to decide on this point.  But, if they are not sufficient, I might postpone the decision till

Counsel - I should hope, for the credit of my client, that your Honor would pronounce judgment on the latter objection.

The Solicitor General -  It can't be material to him, so long as the proceedings are quashed.

Counsel - In a legal point of view, it certainly can make no difference.  But, in the opinion of the public, he would suffer.

Solicitor General - Quite the contrary.

Counsel ---- It must make a great difference in the public mind, between my client being told that he has escaped punishment by the quibbles of the law, and being sent out of court without any imputation because he has violated no law whatever.

Court ---- The Court can quash the proceedings without giving any reasons.  What is the date of the Proclamation?

Counsel --- The 4th of March 1824.

The Court ---- It is to be lamented that at that time the Governor had not the benefit of legal advice.

The Solicitor General ---- This question is of the utmost consequence to the Colony; as, I suppose, we shall have parties on all sides bringing actions for the recovery of money for duties.

Counsel ---- That is precisely the thing I have recommended my client to do.[6 ]  And, if his Honor declines deciding the point now, it will only delay the decision for a few days.

The Court ---- I must avail myself of my privilege and decide this without being called upon to state my reasons.  Let judgment be arrested, verdict set aside, and the whole proceedings quashed.[7 ]



Source: Australian, 26 May 1825[8 ]


We have not heard that the accuracy of our Report in this case has been impugned, nor are we aware that it is in the slightest degree inaccurate.  The Chief Justice at the conclusion of the desultory conversation which took place, made use of these words, as nearly as we can recollect, from persons who were present - "I can" or "I shall shelter myself under the immunities of my office, and decide without being asked any question."  The decision we understand is simply recorded thus - "With the consent of the Solicitor General, judgment arrested, and the proceedings set aside."



[1 ] Saxe Bannister.  Forbes' letter to Wilmot Horton of 29 June 1825 commented on this case, noting that it was a matter for the ``Exchequer side of the Supreme Court". He also explained the liquor duty in that letter and another of 29 June 1825, Catton Papers, Australian Joint Copying Project, Reel M791.  On liquor duties, see also Brisbane to Bathurst, 4 February 1825, Historical Records of Australia, Series 1, vol. 11, p. 487.  See also Historical Records of Australia, Series 1, vol. 11, p. 946 on this case.

James was still seeking compensation for his losses in 1833: see see Historical Records of Australia, Series 1, Vol. 17, p. 208.

[2 ] He was also editor of the Gazette's rival newspaper, the Australian.

[3 ] This overstates the official role of the Gazette.  It was privately owned, and its editor was frequently sued or prosecuted for libel.

[4 ] The Sydney Gazette reported this trial on 19 May 1825.

[5 ] John Stephen, subsequently a Justice of the Supreme Court.

[6 ] James did take action to recover the money paid: see James v. Balcombe, August 1825.  He was also sensitive to allegations of evasion of duties: see his affidavit concerning liquor duties, published in the Australian, 27 January 1825.  See also Raine and Ramsay v. Piper, August 1825; and see Raine and Ramsay v. Balcombe, Australian, 11 August 1825.

[7 ] The Sydney Gazette, 19 May 1825 recorded that Dr. Wardell said that the ``public impression would be, that he escaped through a point of law; I wish to shew, that the proceedings were illegal; and I have advised Mr. James to enter a civil action for the recovery of the duties which he has paid."  According to the Gazette, Forbes C.J. then said ``That is the consequence which I apprehend would arise from a decision on those grounds; I shall, therefore, avail myself of the immunity which I possess, of not giving reasons; and decide that judgment is arrested, and the proceedings set aside."  On 19 and 26 May 1825, the Australian published editorials on this case.

[8 ] The Sydney Gazette, 26 May 1825 also made a correction: ``During the Sitting of the Supreme Court, on Friday last, His Honour the Chief Justice took occasion to remark, that, as an erroneous impression had gone abroad relative to the decision in the case of the King v. James, he wished it to be understood, that the Court did not go into the arguments brought forward by the learned Counsel for the defendant, it merely made the rule in arrest of judgment absolute, as it was not opposed.  The decision of the Court was, that with the consent of the Solicitor General, judgment be arrested, and the proceedings set aside."

Published by the Division of Law, Macquarie University