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

R v Leitch [1826] NSWSupC 37

assault - master and servant - ship, discipline on - ship's crew

Supreme Court of New South Wales

Forbes C.J.,  26 June 1826

Source: Australian, 28 June 1826

 

Jonathan Leitch, Master of the brig Atalanta, was indicted for violently assaulting one Abraham Blaxland, a seaman on board that vessel.[1 ]

The indictment contained two counts - charging two separate assaults - the first committed on the 18th of Feb., and another on the 18th of May last.

The defendant pleaded Not Guilty.  The Attorney-General[2 ] stated the case.  The defendant was charged with a common assault, admitted on the high seas.  By the New South Wales Act,[3 ]jurisdiction was given to the Supreme Court of that Colony, over offences like the present, which might be committed at sea. The possible defence which would be made to that charge, was that discipline should be kept up on board a vessel by a master among his people.  It, however, was a question entirely resting with the Jury on the evidence which should be adduced; it was for them to decide whether the violence alleged to have been exercised by the defendant, was more than commensurate with the faults of the men.  If it were, the defendant, in law, was criminal.  The Master was certainly vested with some degree of power, to inflict punishment; but then, in the exercise thereof, it must be of that nature as not to border on harshness or severity, when the occasion did not require it.  The present case was not one of that description - he believed that nothing approaching to a violent resistance, of the Commanding Officer's orders or the least particle of insubordination, had been manifested among any one of the crew.  From the depositions then before him, a clear case of assault appeared to have been committed, without any justifiable reason for doing so, whatever.

ABRAHAM BLAXLAND sworn - examined.  Is a seaman belonging to the brig Atalanta.  The defendant is Master of that vessel.  Witness shipped at Rio de Janeiro, in March last, and acted in the vessel from thence, till her arrival at this port, in the capacity of cook.  On the 18th day of the same month, sometime towards evening, he was employed in the ship's galley, in preparing some heated water for the cuddy.  Witness had occasion to leave the galley, a few minutes, and on his return found that the kettle had "capsized," and the contents run out - he thereupon took the boiler, for the purpose of getting it re-filled with water, when defendant met him, and on hearing of the disaster, said, witness was drunk, and immediately laid hold of the fore-sheet, which he laid about him for some moments.  Witness endeavoured to escape from defendant's fury, by running over to the other side of the deck; defendant then left the rope, and caught hold of a pair of iron fire tongs; with which weapon he was also repeatedly struck.  Witness was much injured in the body, in consequence of the violence.  There were several of the crew on deck at the time.  On another occasion, the 8th of May, defendant came into the galley, and accused witness of being drunk - on being about to reply to this charge, defendant knocked a knife out of witness' mouth, and then took hold of a piece of iron, used for the purpose of breaking coal, with which he inflicted many blows on his head and other parts of the body.  The iron instrument was about two feet in length, and two inches in circumference.  Witness cannot say how many blows he received; but knows, they were "very many."  He was nearly deprived of sense, in consequence of their violence.  Defendant swore on this occasion, that he would take his (the witness's) life.  Had not drank any thing in the way of spirits, that day, beyond the usual allowance of grog.

Cross-examined. - The first assault took place on the 18th of of [sic] March last; the second mate told him it was on that date.  Does not know the day of the week.  The water was spilt by accident, and not occasioned by witness being drunk.  He and the whole of his shipmates are under a sentence of the Bench of Sydney Magistrates to imprisonment in the goal.  Witness will not trust his life again with the Captain.  The master's finger bled when he knocked the knife out of witness' mouth.  It was not occasioned from witness striking at the Captain with it.

John Henson deposed, that he is a seaman belonging to the same vessel as last witness; saw the two assaults complained of.  Witness, on one of the two occasions, endeavoured to get his shipmate off from being further beaten, by saying, "Oh Captain, don't kill him."  The latter left off striking the other man, and levelled a blow at witness.  The man was very much injured from the severe blows he received; and was incapacitated from pursuing his ordinary work, but in extreme pain.  Was not present at the commencement of the second assault; but saw the Captain strike prosecutor first with a rope attached to the fore sheet, and afterwards with an iron bolt.

Cross-examined. -  It was stated by the Captain, in the course of the voyage, that a greater part of two casks of wine had been drawn off in the hold of the vessel.  Believes he accused the seamen of doing it.  Believes it was on the two occasions that the alledged assaults took place, on the robbery being discovered.  Never saw any of the seamen drunk on board.

Re-examined - The defendant came to witness the day after he was assaulted, and asked him to say "yes" - meaning that he, witness was drunk on the previous day.  Believes it was intended to be entered in the log book.  Some other evidences deposed to a similar effect.

The Attorney General here closed the case for the prosecution.

In the defence, Mr. JOSEPH BARBOZA was exami

Was freighter of the Atalanta from Rio de Janeiro to this port.  Was passenger in the vessel.  Knows the carpenter and cook were "rope's-ended' in the course of the voyage.  They made no complaints to witness of ill-treatment.  Has seen the second mate drunk.  The whole of the crew, with the exception of the boys, were shipped at Rio de Janeiro.  There were two casks of wine spoiled in the hold, allowing for leakage of the casks.  A great quantity was embezzled.  Never saw nor heard the blows which had been represented by witnesses to the Court.  Never heard that any seaman was unable to do his duty in consequence of them.

Cross-examined - Never heard such a thing before as a whole ship's crew leaving a vessel altogether, when prosecuting a voyage, which they were bound to perform by articles.  Witness chartered the Atalanta at Rio de Janeiro.  There were no mariners on board.  Does not know for what reason the men left the vessel.  Never saw above one man drunk on the voyage.  Never saw a man on board strike any one of their officers.

THOMAS HAY deposed, that he is cabin boy belonging to the Atalanta - sailed from London to Rio de Janeiro, and there entered into articles with the Captain - deponent during the voyage has frequently desired him to tell Mr. Barboza, that the cook was drunk, else he would flog him - witness did so from fear - will now swear he never once saw a man drunk on board; defendant generally used both hands and feet after he had laid about the rope's end.

Cross-examined - between 13 and 14 men sailed with the vessel from London - the whole of them, with the exception of witness and another, had left the vessel at Rio - it was on account of bad usage - whilst at that port, witness endeavoured to go on shore with the other men to the English Consul, but was prevented - one man, named Alexander Murphy, was drowned in escaping the vessel, while swimming on shore; - on arriving at Sydney, the crew determined to come on shore "to seek their rights" - the first time witness heard that the Captain made a complaint against the crew for leaving the vessel, was when he called at the office of the Attorney -General.

This closed the defence.

The JUDGE summed up. - the fact of an Assault on the Cook, his Honor observed, was incontestibly proved - there was no single fact adduced in evidence, to shew what the man had done, to call for the exercise of legitimate authority - nor had there appeared ought to justify the defendant to go to such extremes as he had - the mariner had not been proved to have been either insolent or insubordinate in his conduct, - and if ever he had been culpable of one or both offences, the weapon that was used to administer correction was unfit for the purpose.  It was very necessary that the Captain of a vessel should be invested with the power of punishing acts of insubordination, - but like every other investment of authority, it should be dispensed judiciously.  Some circumstances had been brought to the notice of the Court, relative to a quantity of wine, which, it appeared, had been abstracted; - whether the cook was a party to the theft, did not appear, - and, even if it did, in effect it could furnish no case for the defendant, unless it was proved that the man took the wine, and thereby got drunk.  The defence had mainly gone on the credibility of the evidence for the prosecution.  It was urged in the Defence, why not apply for justice at Van Diemen's Land? - that was a circumstance of very little importance - a thousand circumstances might arise, either from the shortness of the ship's stay there, or want of opportunity.  The men reserved their application to that Court, and they had made it - another circumstance, however, deserved much consideration, which was, that the persons who had given their evidence that day, had been brought up from gaol, on a complaint made by the Captain, of a refusal on their part, to proceed with the vessel to sea.

Mr. BARBOZA had stated, the first time he heard of any complaint from the Captain against the men was on the Monday after they had absented themselves - why should they subject themselves to 3 months imprisonment, unless they had some reason for so doing? - what answer did the men give to that query, they say, "we consider our lives in danger."  The whole of the witnesses agreed to an assault having been committed on two several days; it was true, and indeed very probable, that in the recital of the assault, there might have been some exaggeration[.]  Mr. Barboza stated he knew nothing beyond a "rope's ending;" thinks from his situation on board, the degree of violence which was represented, would have come to his ears; and therefore it was only natural to infer, the story had been exaggerated, from a degree of bias, operating on the minds of the evidences; it nevertheless, did not go so far as to say, that the assault was without foundation, or that the alleged assault had not been committed.[4 ]

The Jury after about five minutes consultation found the defendant guilty.

 

Tuesday.[5 ]

 

The MASTER of the Atalanta was this day brought up for sentence.  An arrest of judgment was moved on sundry objections, which the Court overruled, and the Chief Justice adjudged the defendant to pay a fine of 50l. to the King, and be imprisoned 'til such fine was paid.

 

Notes

[1 ] This case was reported in the Monitor on 30 June 1826.  It reported that the assaults took place on a voyage between "the Brazils" and Sydney.  The Atalanata had lost her original crew, with the exception of two boys, soon after arrival at Rio from England.  At Rio she was chartered for Port Jackson by Mr Joseph Barboza, and another ship's company, partly foreigners, had been engaged.  "These in like manner, after discharging the cargo, had refused to do duty on board, and been sentenced by the Sydney magistrates to 30 days confinement in the house of correction.  The witnesses were consequently brought up by a writ of Habeas Corpus."  The case was also reported by the Sydney Gazette, 28 June 1826.  The latter described the prosecutor as a black man.

See also Merrett v. Kenn, MacCleod and Butterworth, April 1826 on ship's discipline.  See also Sydney Herald, 14 May 1835, "Law Respecting Merchant Seamen".

[2 ] Saxe Bannister.

[3 ] (1823) 4 Geo. 4 c. 96.

[4 ] The Sydney Gazette, 28 June 1826, summarised Forbes C.J.'s charge to the jury:

"After the Attorney General had replied at some length, His Honor the Chief Justice summed up the evidence, minutely remarking on its various bearings on the case.  From the testimony brought forward on the part of the prosecution, a complete case of assault had been made out, and the onus was thrown on upon the defendant, to prove that either the evidence was false, or that he was for some reason justified in what he had done.  But His Honor was of opinion, that no single fact had been adduced to shew any foundation for the proceedings which had been adopted.  The witnesses all agreed, that the prosecutor was not intoxicated, neither had he been guilty of any act of insubordination towards the defendant, though even if he had been, His Honor had no hesitation in saying, that the weapon which was used was most improper.  There was no doubt that the master of a vessel had the power of inflicting a moderate degree of punishment on any of his crew who might prove refractory.  It was founded on good sense and reason, as involving, by possibility, the safety of the ship and cargo, but it was always an aggravation of an offence, when it was perpetrated under the shadow of authority.  Even if the defendant had been satisfied that the wine was abstracted by the crew, still it did not justify the measures he had resorted to, as that would, of itself, have formed the ground of a criminal prosecution against the men.  The whole of the witnesses agreed that an assault had been committed, on two different days, during the voyage, and though perhaps there might be some degree of exaggeration in the statements, as, without imputing any want of veracity to the parties, it was natural to suppose, that the evidence might have been given with a bias, still it was His Honor's impression, that a complete case had been made out against the defendant, though how far exaggeration might have taken place, was matter for the consideration of the Court, in awarding the measure of punishment.  It was a question of evidence, and entirely for the consideration of the Jury."

[5 ] 27 June 1826.

Published by the Division of Law, Macquarie University