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

Attorney General v Dwyer [1833] NSWSupC 31

tobacco, customs duties

Supreme Court of New South Wales

Burton J., 25 March 1833

Source: Sydney Herald, 28 March 1833[1 ]

MONDAY. - Before Judge Burton, and John Nicholson and J. E. Manning, Esqrs. Assessors.

The Attorney General v. Dwyer. - This was a proceeding by information to recover the penalty of £100 from defendant, for landing tobacco from the ship Florentia, without the duty having been paid or secured.

The information contained three counts. 1st, that one W. S. Deloitte did illegally unship from the Florentia, on which the duty had not been paid, and that defendant aided and assisted in the said landing; 2d, that the tobacco was landed by some person or persons unknown, and that defendant aided and assisted in such landing; 3d, that a certain quantity of tobacco was landed, and run on land before duty paid, and that defendant did harbour and conceal the said tobacco, well knowing it to have been so run.  The defendant pleaded the general issue, not guilty.

The Attorney General stated the case to the Court. - In the month of September last the ship Florentia arrived in this port, and hauled alongside Bettington's Wharf to discharge, at which time the Captain handed into the Customs the report of his manifest, which contained an entry of half a cask of tobacco, as ship's stores, but none other was mentioned.  In consequence of a misunderstanding taking place between the Captain and J. A. Cook, he gave the following information to the Customs: - That some times in that month he saw a man named Wallace roll a keg of negrohead tobacco from the Florentia, on to Bettington's Wharf, at which time Captain Deloitte was standing on the fore part of the poop.  The tobacco was received by defendant, who was Bettington's store-keeper, and by him placed in the stores behind some casks.  He then saw Dwyer take out about twenty pounds, which he put in a handkerchief, and carried to his house on the Brickfield Hill. - This he did also on a subsequent occasion.

Mr. Jeffreys, a Tide Surveyor of the Customs, deposed, that in consequence of information received, he went to the house of Dwyer, and seized about 30 lbs. of tobacco.  He said to Dwyer, you have been selling smuggled tobacco; Dwyer replied, I have been selling tobacco, but you must find out what ship I got it from.  A cocket was here produced, which showed there was originally another keg of tobacco in the ship, although it had not been mentioned in the report of the manifest.

Mr. Webb proved that no warrant had been given for the landing of the tobacco; if duty had been paid, a warrant would have been given.

Mr. James Webb, Collector's Clerk, proved that no duty had ever been paid on the tobacco, or he should have signed the warrant.

No evidence was called for the defence.

Judge Burton summed up, and put the question to the Assessors, on the following points - Whether any tobacco had been unshipped by Deloitte, or any other person, on which duty had not been paid; if they found in the affirmative, then was defendant concerned in the unshipping of it; if not, did he harbour and conceal the tobacco, knowing it to be run goods.

The Assessors found a verdict for the Crown for £100 on the second count.

The Attorney and Solicitor General for the prosecution, and Messrs. W. Foster and Therry for the defendant.


Forbes C.J., Dowling and Burton JJ, 6 April 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266


[p. 49] This was an information in debt for penalties incurred by the Deft for infringing the local customs act 11 G. 4. No. 6 s. 47.  Plea nil debet.  The case was tried on the Civil Side of the Court before the Chief Justice & two assessors & a verdict was found for the Crown.

Foster now moved for a new trial on the ground that this was altogether a nullity - & a mistrial for being an information in the name of the Attorney General it ought to have been tried at the Criminal Session before 7 Commissioned officers, agreeably to the direction of the N.S.W. Act 9 G. 4 c. 83 s. 5.

Forbes C.J. & Dowling J.  We think that this proceeding being [p. 50] in its nature a qui tam action it may be tried on the Civil Side.  If tried at a Gaol delivery the Deft wd be precluded from moving for a new trial so that deft has an advantage in trying it on the civil side, even if any doubt could be entertained on the subject.

Burton J doubted.

Rule refused.[2 ]

It is not necessary to aver a scienter, in order to incur penalties if the Statute do not make knowledge essential to the completion of the offence - Ruled in arrest of judgment.



[1 ] For another report of this case, see Sydney Gazette, 28 March 1833.  See also Attorney General v. Green, 1833; Attorney General v. Smyth, 1833.

In 1832, the New South Wales Legislative Council passed a new customs Act (2 Wm 4 No. 5): see Sydney Gazette, 25 February 1832.

[2 ] Marginal note in manuscript: ``see Atcheson v. Everett".

Published by the Division of Law, Macquarie University