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

R v Harper [1826] NSWSupC 48

embezzlement - fee system of administration - import duties - law reporting

Supreme Court of New South Wales

Forbes C.J.,[1 ] 27 July 1826

Source: Australian, 29 July 1826


A more than ordinary interest was excited on the public mind, relative to the issue of a trial, which was understood to come on this day -  An officer belonging to the Commissariat department, being charged to have been concerned in the embezzlement of a quantity of spirits, which had been lodged in the bonded stores.  Several merchants and other gentlemen  of the Colony, were subpoenaed on behalf of the defendant.

George Harper then appeared on the floor of the Court, and the indictment was read charging him, with feloniously stealing a quantity of spirits, from the Commissariat stores.  The information contained several counts, laying the ownership of the property, in various ways.  The defendant pleaded not guilty.  He was defended by Doctor Wardell, and Messrs. Wentworth, and Rowe.  The Attorney-General,[2 ] having stated the case for the prosecution,

William Wemyss, Esquire, was sworn, and examined - Is Deputy Commissary-General of this Colony, and has the charge of all spirits imported, upon which the duties are not immediately paid; the spirits so imported, are kept in three distinct stores.  Mr. George Harper, (the defendant), was appointed to take charge of these stores.  The only legal mode for spirits being removed from the Bonded Stores, is by obtaining a Permit from the Naval Officer, which shews, that the duties on the quantities removed, have been duly and properly paid.  Defendant held the situation of store-keeper, and clerk, in the stores, and had the sole charge of the keys - Witness had authorised Mr. Harper, to remove spirits from the stores, belonging to himself.  The Deputy Commissary-General is allowed a per centage, of one-half gallon of spirits on every hundred imported into the Colony; this was, for trouble of guaging,[sic] and bonding.  Mr. Harper was witness's agent, in the disposal of what thus became his property.  From the nature of Mr. Harper's office, he was prevented from importing any spirits on his own individual account.

Cross-examined - The one-half per centage applies to all spirits deposited, or left in the Bonded Stores - the amount of this centage, in the course of the year, amounts to something considerable - say, upwards of 1000 gallons; this portion pays no duty.  Defendant takes these spirits into his own possession, subject to the controul of no one in the disposal of them - he might properly consider a part of them to be his own property.  It would not be an indirect act, if he should exchange the per centage spirits for any other, deposited in the stores, it would be perfectly proper if the consent of the owner was had.  Defendant had no occasion to observe any secrecy in conveying the centage spirits out from the stores - it has been customary to allow a perc entage [sic] on imported spirits, in the manner described, since the year 1811 - there is a government order to that effect.  Mr. Harper had the sole charge during the whole of the day.  Witness was always perfectly satisfied with the conduct of Mr. Harper, in the duties of his office; always found in him, the utmost accuracy and integrity.

Robert Melville, sworn - deposed that he was employed as gate-keeper, on the Bonded Stores, in the month of March last - In the early part of March, remembers some spirits leaving the stores - recollects a person named Ashton, coming to him, and asking if Mr. Harper had any centage spirits for sale - witness desired him to go in to Mr. H's office; Ashton did so, and afterwards came out, observing to witness, that "Harper" had as much as would suit him - shortly after, said Ashton followed Mr. Harper into the Bonded Stores.  Ashton, on the same day, conveyed away in a cart, from the said store, one puncheon of rum, and two smaller casks, containing brandy; the spirits were carried to Ashton's house - this transaction occurred some time about noon, in the day - there were what is generally called "ship marks" on the casks - knows there were three various numbers marked in chalk on the ends - thinks they were Nos. 254, 122, and 106 - Witness made a memorandum at the time of the circumstance, which he afterwards gave to the Commissary - there were the ship marks of the "Triton" on the large cask - Recollects Mr. Roberts, a publican, taking away a puncheon of rum from the store; this was on the 10th of March - Mr. Harper delivered it to Roberts' order - Has seen casks of various sizes, taken away from the stores.  The "Triton's" mark was somewhat defaced on the cask; this circumstance first occasioned witness's suspicions; it was the only time he had ever seen such a thing, and therefore thought it strange on this occasion.

Cross-examined - The ship's marks as spoken of, were made with chalk - might have been rendered obscure by rubbing against something or other - still thinks is unlikely.

Mr. James Chisholm, sworn - Stated that he bought the whole of the spirits imported here by the "Triton," there were 93 casks including three ullages, all of which, amounted to about 10,000 gallons - remembers at one time, to have emptied one of the ullage casks, took the contents away, and left the cask behind - had 53 casks remaining in the Bonded Store, in February last.

Cross-examined - Recollects on one occasion Mr. Harper asking witness to exchange with him two casks of centage spirits, for those which he had in bond by the Triton.  Witness was desirous of evincing his respect towards Mr. Harper for his accustomed civility towards him in the duties of his office, and consented.  Does not know the ship's number on the casks which he permitted Mr Harper to take.  Knows that a Mrs McLeod bought a puncheon of rum from defendant, which she paid for.  Believes the cask to have contained 116 gallons.  Has had frequent occasion to go to the Bonded Store in the course of business; and has had still more frequent opportunities of observing defendant's conduct.  Always considered him extremely accurate in his accounts; and entertained the highest opinion of his integrity.

Titus Kent - Was employed as a labourer in the Bonded Store in the month of March last, and some months prior thereto.  Knows that three casks were conveyed away in a cart from the Store some time in March last.  There were numbers to each cask.  One was a puncheon.  They were taken from a tier of casks which had been laid in from the cargo of the Triton a short time before.

Three other witnesses, John Dawson, James Lee, and Thomas Brown, deposed to a similar effect.

Mr. John Roberts examined - Was formerly a publican, is now a dealer.  Remembers purchasing a puncheon of rum from Mr. Harper at the Bonded Store, on the 15th of March last.  Understood at the time it was centage spirits.  Paid at the rate of 12s. 6d. per gallon for the same.  The cask was numbered 151 or 251.  Has seen empty casks left in the Store by importers, which two years after have been refilled with centage spirits and sold out.

Joseph Harcourt deposed that he was employed to cart a puncheon of rum from the Bonded Store to Ashton's house at the Canteen, and was paid  for doing so.  Does not know what month it was in.  Has no further recollection of the circumstance.

Captain Piper examined - Is Naval Officer of the Colony.  Remembers a quantity of spirits being landed by the Triton.  Understood Mr. Chisholm became the proprietor of the whole.

The prosecution here closed.

Dr. Wardell then rose, and submitted to the Court that there was no case made out on the part of the prosecution.

The Learned Judge and Jury were of the same opinion; and Mr. Harper was acquitted.[3 ]



[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone. 

[2 ] Saxe Bannister.

[3 ] In commenting on this trial on 29 July 1826, the Australian stated that Harper was a "Gentleman much respected in his station, and in his office" and that "there never was less foundation for a Criminal charge against any man".  The only people who suspected him of criminal conduct were some "unprincipled prisoners of the Crown", members of gaol gangs, who gave evidence against him.  The Sydney Gazette, 2 August 1826 claimed that the Australian's comments on this trial was partial.  The allegation is that the Australian used it to criticise the government's decision to prosecute.  The Gazette also said that an application was made to all three papers, the Gazette, Australian and Monitor, not to publicise the trial.  See also Sydney Gazette, 12 August 1826.

The Monitor made a brief comment on this case on 11 August 1826, calling Harper a "gentleman of the highest respectability" and noting that he was "most honourably acquitted".  Harper returned to his office in the commissariat: Sydney Gazette, 5 August 1826.  For legal opinions on the case, see Historical Records of Australia, Series 1, Vol. 14, pp 757-758.

Published by the Division of Law, Macquarie University