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

R v Mitchell (No 1) [1825] NSWSupC 15

false imprisonment - assault - arrest of ship - condemnation of ship - Admiralty- East India Company's monopoly - prize vessel - the Almorah

Supreme Court of New South Wales

Forbes C.J., 19 April 1825

Source: Australian, 21 April 1825


King v. Mitchell.

This day Captain Mitchell, of H.M. Ship Slaney, was arraigned on a charge of misdemeanor in aiding and abetting Lieutenant Matthews, of the same ship, in a false imprisonment, on the 28th day of February last, of Mr. Boyd, late Commander of the merchant ship Almorah, Mr. Clements, Deputy Assistant Commissary General, passenger in the said ship, and Mr. Thomas, supercargo of the said ship, for the space of 12 hours each, and of William Jones, seaman, for the space of 24 hours, by detaining them on board the said ship Almorah, against their consent. [1 ]  And further ---- for aiding and abetting Lieut. Matthews in assaulting and endangering the lives, on the 1st day of March last, of Luke Benjamin, Esq. of H.M. Attorney General,[2 ] the said Mr. Clements, Mr. Dunn the chief constable, and divers mariners, by firing upon them with loaded muskets.  And lastly ---- for assembling with others, on the said 1st day of March, tumultuously and with arms to hinder and obstruct justice.  (The second and last count was afterwards withdrawn.)

Dr. Wardell and Mr. Wentworth appeared as Counsel for the defendant.  Dr. Wardell pleaded to the jurisdiction of the Court.  The arguments used by both the Learned Counsel went to the point that the acts complained of in the information arose out of the seizure, by Captain Mitchell, of the merchant ship Almorah, and that if the principal matter, the seizure was not cognizable in the Court of New South Wales none of the incidental matters were, on the authority of Le Caux and Eden, in Douglas's Reports, a case in Levinz, in Coke's and Lord Raymond's Reports.

The Attorney General agreed with the principle laid down by Dr. Wardell and Mr. Wentworth, so far as related to civil injuries, but this was a criminal information, and their authorities did not apply to criminal offences.  In support of this distinction he referred to a case in Andrews 231, mentioned by Chitty.  The Counsel for the defendant replied.

The Chief Justice stated that the principle of law was certainly the same, both in criminal and civil matters.  But he was of opinion that the plea could not be maintained - he looked only at the record.  The information stated a number of facts, which that Court was competent to take cognizance of - if in the defence it should turn out that the Court had no jurisdiction, the jury would be directed accordingly.

The jury were then sworn, and a plea of not guilty was put in.  The Attorney General, after opening the case, called, as the first witness -

Mr. John Sleight, first mate of the Almorah - he proved, that the said ship was seized on the 18th February last - that on the evening of the 28th of the same month Mr. Mathews, first Lieut of the Slaney, Captain Boyd, Mr. Thomas, and witness, were all on board the Almorah; that he and the two last gentlemen requested the Lieutenant more than once to be allowed to go on shore, but were positively refused; that next morning the Almorah was taken down harbour, near to Garden island; that Lieutenant Mathews, attended by boats full of armed men, came on board; that the boats were placed about and around the vessel, with men in them armed with tomahawks, &c., but no muskets - marines with loaded muskets were placed on the poop; that a man was placed aloft to give notice of boats appearing; that presently a boat was seen passing Bennelong's point, when Lieutenant M. said, "That is the boat," and ordered the men to be all in readiness - boat came within hail, and was warned off - it came nearer, and Lieutenant M, ordered the marines to fire wide of the boat - two gentlemen in the boat then held something up; one held, he thought, a white handkerchief; and the other something like a letter; the boat seemed to pull nearer; the marines were order to fire nearer the boat; the boat pulled round, but neared the ship a little; a third discharge of the muskets took place, still nearer; the boat then pulled off; Lieutenant M. ordered his men to give three cheers, which they did; about three quarters of an hour afterwards, Captain Mitchell came on board; a musket was fired at his boat previously, and the boat was warned off like the other; the marines fired also at other boats belonging to the Slaney, because they did not hoist the Blue Peter; the Lieutenant apologized to his Captain, for firing at his boat; and the Captain replied, "You have done your duty;" another boat came in the afternoon, and was fired at as before.

Cross-examined - Captain Boyd made no attempt to go ashore after Lieut. M. had refused to give him permission - no actual force was used to prevent him going ashore - Lieut. M. previous the appearance of the first boat, gave the men in the boats orders not on any account to use violence, but to shove boats off with their hands; but, at all events, they were not to allow any body to come on board - if the last shots had fallen any nearer, they must have struck the boat - witness supposed that, being soldiers, the marines might have hit the boat, if they had chosen to do so - he could, at the same distance, have hit it himself - never heard Lieut M. say "by no means hit any one" nor remembered to have sworn to this fact himself - did not recollect hearing Lieut. M. say he could not find it in his heart to fire at an Englishman.

William Hyde, sail-maker of the Almorah, and James Gordon, carpenter of the same vessel, were next sworn, and deposed to the same effect as Sleight.

Mr. Thomas Dunn, chief constable, also gave similar testimony; believed Lieut. Mathews heard the Attorney General speak when he stood up in the boat waving the handkerchief; thought at first there was no danger, but at last he did think there was; thought he saw a ball strike the water.

Cross-examined. - Had a warrant to go on board and seize such goods as belonged to the Crown, and to apprehend persons opposing its execution.  The Attorney General held the warrant in one hand, and a white pocket handkerchief in the other (Warrant was then read.)  Did not know whether the magistrate was indemnified for issuing the unlawful warrant.

Abraham Davis, seaman, was next sworn ---- his testimony did not differ from or add to the above.

The Attorney General here closed his case.

Dr. Wardell addressed the jury,[3 ] and then proceeded to the examination of witnesses.

Mr. Martin King, carpenter of H.M.S. Slaney, proved that he was on board the Almorah before the first firing.  Lieut. M. had ordered the crew to keep off all boats from touching the ship, and to shove them off, but not to use violence ---- it was the opinion of all on board, that an attempt would be made to re capture the ship ---- it was his opinion ---- the marines could have hit the boat if they chose ---- Lieut. M. was not on board at the firing in the afternoon.

Cross-examined ---- In all seizures and prizes, it was the custom of the navy to keep off boats ---- it was a standing rule ---- the orders for firing did not come from Captain Mitchell, but from Lieut. Matthews.

Frederick Shore, serjeant of marines, proved, that Lieut. M. told them not to fire before orders, and then to fire wide ---- that seeing one of them aiming wrong he ordered him to recover arms, and then took the musket himself and shewed the man how to present it ---- the men in the boats around the ship were not allowed to have pistols lest they should injure any one, and were ordered to shove off all who attempted to get aboard ---- there was a report of boats coming to take the ship and they were to keep them off, but use no violence ---- Lieut. M. cautioned the men 20 times on this head.

The defence here closed.

The Attorney General replied.

The Chief Justice then summed up.  The Almorah had been seized for an alleged breach of an Act of Parliament, and while under seizure, Captain Boyd and Mr. Thomas, who were on board, wished to go ashore, but were prevented by Lieut. M. then in charge of the seizure ---- as centinels were placed near the gangway to prevent boats coming to and from the vessel, such detention was false imprisonment, for the parties felt as much under durance as if they had been lashed down.  Next day the vessel was taken down the harbour ---- Lieut Matthews went on board the same morning with a number of armed men, whom he placed in boats around the vessel, and the marines on the poop ---- their muskets were no doubt loaded ---- when a boat appeared and was pointed out to him, he said, "that is the boat" ---- it was warned off ---- a parley was demanded by the boat ---- the marines were ordered to fire wide of the boat ---- fired again nearer ---- and again nearer ---- in all six rounds ---- one witness says there was danger --- all say, the marines were ordered to fire wide ---- and one says, that even though a boat should persist in coming alongside, no one to be injured ---- the Captain being in his boat was also fired at in his turn, and when the Lieutenant apologised to him, he said, "you have done your duty."  The application of these words, he thought, ought to be confined to the particular act of firing.  The first offence charged, namely, false imprisonment, had not been established against Capt. Mitchell ---- what share the Captain had in the Lieutenant's conduct on this head had not appeared ---- the Lieutenant might have detained the gentlemen of his own head.

With respect to the second offence ---- it had been proved, that Capt. Mitchell went on board, and might therefore be supposed not to have expressed his disapprobation of Lieut. Matthews conduct, as a repetition of the firing afterwards took place.  Captains in the navy had a general power to seize by certain statutes, and nothing contrary to this rule had been proved.  Assault, imprisonment, and firing were not necessary consequences of a seizure ---- boats had a right to go about on the water as freely as men may go into houses on land ---- boats may go within a hundred yards of a ship, or within a hundred feet if they like ---- the seizing officer may certainly lawfully prevent intruders on board ---- for he had himself known instances where, from intrusion, the unlawful part of a seized cargo had been all clandestinely abstracted ---- so that the seizor had nothing left to justify his act ---- but, then, all prevention must be lawfully effected ---- men of war should protect persons serving process of law, not resist them ---- the purpose for which the boat went to go on board the Almorah, namely, mediation, was good ---- but looking at the warrant, it was not lawful ---- a seizor may seal hatches ---- secure papers ---- keep off intruders ---- but not violate the law ---- the boat, however, was not casually passing ---- if it had, and the firing had still taken place, then such firing would have been wanton. --- but the boat was proceeding to the ship after being warned off.[4 ]

The Jury retired for about 20 minutes, and returned with a Verdict of NOT GUILTY.



[1 ] This is the first of many cases concerning the Almorah.  She had been contracted by the colonial government to purchase rice for the colony.  However when she returned to Sydney Harbour with the rice she carried tea as well.  She was seized by naval officers in Sydney harbour for an alleged breach of the East India Company's monopoly on trading in tea.  This particular case concerns the naval officers' attempts to ward off the Attorney General and other government officials, when they attempted to board her after the seizure by the navy.  Despite displaying a white handkerchief, the Attorney General's boat was fired on by the navy.  One of the naval officers, Lieutenant Mathews, later sailed the Almorah and her cargo away from Sydney to Calcutta.  The resulting civil and criminal litigation included cases of libel, assault, and false imprisonment.  For other cases in this series, see R. v. Howe, April 1825; R. v. Mitchell (No. 2), August 1825; Mitchell v. Howe, October 1825.  In its commentary on this case, the Australian, 21 April 1825, showed that it favoured Captain Mitchell's version of the events.  (Wentworth and Wardell, the Australian's editors, acted for Mitchell, the naval Captain.)

The Sydney Gazette, 24 February 1825 and 3 March 1825 favoured the government's version of the events.  The Gazette campaigned against the Australian as much as it did against the naval officers: see Sydney Gazette, 17 March 1825, and see its issues of 24 February, 3 March 1825, 14 April 1825.  The Gazette's report of the trial was published on 21 April 1825, and included a full statement of the counts contained in the information against Mitchell and further detail of the speeches of the counsel for either side.

In its issue of 28 April 1828, the Australian argued that the Court of King's Bench at Westminster, and the Courts of the East India Company at Calcutta had exclusive jurisdiction over the seizure and all incidental matters.  Forbes C.J. found, however, that this action for assault and false imprisonment was not incidental to the seizure.

Forbes C.J. first reported to Wilmot Horton about the Almorah on 24 March 1825, before he heard the cases (Mitchell Library, CY Reel 760, p. 1; and see Historical Records of Australia, Series 4, vol. 1, p. 586).  He said that the Almorah's trip was unpopular among merchants, because of its impact on food prices and on the price of money in the colony.  It was these merchants, Forbes says, who told Captain Mitchell of the H.M.S. Slaney about the Almorah's illicit cargo, and who advised him to seize her.  Forbes described the firing on the colony's officers as a ``gross outrage on the laws of the colony," continuing on to comment that the ``example of such a proceeding will not be lost in this country, where the mass of the people are only kept in subjection by the power of the law."  He also criticised Wemyss and the Attorney General before going on to explain the correct legal position.  He seemed conscious that he was prejudging these issues, but did so anyway.  With this letter, he attached copies of the original documents in R. v. Mitchell (No. 1), April 1825.

Governor Brisbane sent a despatch to Lord Bathurst about the Almorah on 4 March 1825: Historical Records of Australia, Series 1, vol. 11, p. 529.  He said he had been unaware of the importation of the tea until the ship was seized.  He then directed Captain Mitchell to order that no violence should be used against the Attorney General's boat, but to no avail.  Brisbane thought the seizure was illegal, but was unwilling to risk human life in order to regain government property.  He described the actions of Captain Mitchell as ``unwarrantable, illegal and unjustifiable".  He and his crew came to New South Wales ``to protect the King's property, but [they] have been the first to violate it, to outrage the Law in the grossest manner, and to set my authority at defiance."  Brisbane said he had access to sufficient military force to seize the ship, but chose not to do so for fear of the sacrifice of lives.  Mitchell was, he thought, motivated only by personal interest.  He set a terrible precedent in defying the law and the governor.  The governor also said that Mitchell was ill-advised by Wentworth and Wardell, and that their report of the facts in the Australian was grossly inaccurate.  The despatch concluded with copies of the relevant official documents.  There is no doubt that he thought that Wemyss was initially to blame: see Brisbane to Bathurst, 24 March 1824, Historical Records of Australia, Series 1, vol. 11, p. 556, and see pp 938-939; and see Brisbane to Bathurst, 21 June 1825, p. 673; and 25 June 1825, p. 674 on another possible seizure.

The British government responded in a despatch from Earl Bathurst to Governor Darling, on 30 December 1825: Historical Records of Australia, Series 1, vol. 12, p. 130.  In the accompanying documents, it becomes clear that Brisbane and Wemyss were at odds about whether Brisbane had prior knowledge of, or involvement in, the purchase of tea.  The officials in London supported Wemyss, saying that he acted in what he thought was his public duty.  On 15 October 1825, James Stephen gave his advice to Under Secretary Hay (Historical Records of Australia, Series 4, vol. 1, p. 624).  He thought that the forfeiture was illegal, because the whole property was that of the crown, which was not liable to seizure under the East India Company legislation.  Only an Admiralty Court would have jurisdiction over the matter, and it was unclear to him whether New South Wales had one at this time.  Captain Mitchell acted just as illegally in attempting to ward off the Attorney General, as he would have done had he shot at a sheriff's officer who was trying to arrest him for a debt which was not actually due.  The Attorney General acted lawfully, though not perhaps appropriately, in prosecuting Mitchell for a breach of Lord Ellenborough's Act.  Finally, said Stephen, it was illegal to take the ship to Calcutta. Other crown lawyers, disagreed, saying that the vessel was liable to seizure, but that the part of the cargo which was the property of the crown was not liable to seizure.  The Court of Vice-Admiralty in Calcutta agreed with Stephen: it said that the seizure of the Almorah was illegal.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, pp 133-134.  Chap. 13 of Currey's book is the most useful general account of the Almorah litigation.  On the eventual fate of the Almorah, see Australian, 14 May and 9 August 1826.

On the legality of Lord Ellenborough's Act in New South Wales, see footnote 1 to R. v. Smith, January 1825.

[2 ] Saxe Bannister.

[3 ] The Sydney Gazette, 21 April 1825, reported that Dr Wardell ``said that this case was most disgraceful to those who had a hand in bringing any thing relating to the Almorah into a Court of Justice.  All those concerned in bringing the ship into harbour were guilty of the infraction of the rights of the East India Company.  Captain Mitchell knew this.  ... if the seizure was lawful, every man on board was subject to imprisonment for a misdemeanor."

[4 ] The Sydney Gazette, 21 April 1825, reported Forbes C.J. as saying: ``The act of Lieutenant Matthews, in detaining Capt. Boyd and Mr. Thomas, were most unlawful, but something like an argument has been urged, that these persons were engaged in a breach of the East India Company's Charter; but, Gentlemen, we have no proof that there was a breach.  It is proved, that Captain Mitchell was going to and coming from the ship between the first and second assault, which clearly shows his knowledge of the acts which were taking place.  Now comes the question of how far these acts were right or wrong?  This depends partly upon law  partly upon fact.  They are said to be the necessary consequences of the seizure.  Gentlemen, I am of opinion, that they are not.  Surely, it is competent in any man who can get into a boat, to go within a hundred yards of a ship, or nearer, without being fired on.  Even if the warrant had been illegal, still that would have been no excuse for the violence used.  You are to take into consideration, Gentlemen, whether the evidence brought forward sufficiently establishes the charges laid in the information, and also the possibility of persons being hurt in consequence of the firing."

The sharp difference between the tone of this report and that of the Australian as to what the Chief Justice said to the jury, shows how much each report was influenced by its editor's views of the case.  We can trust neither to be an accurate summary of what Forbes C.J. actually said.

Published by the Division of Law, Macquarie University