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

Attorney General v. Smyth [1833] NSWSupC 85

customs duties, appeals, against jury's verdict, new trial, jury, deciders of law or fact


Supreme Court of New South Wales

Burton J., 3 July 1833

Source: Sydney Herald, 4 July 1833[1 ]

Wednesday. - Before Judge Burton, and the following Special Jury - T. Walker, Esq. (Foreman), C. F. Warne, W. Cordeaux, J. Tooth, S. North, G. Suttor, A. Mossman, L. Duguid, T. Barker, R. Lethbridge, G. Weller, and J. Brown, Esquires.

The Attorney General v. Symth. - This was an action to recover a penalty of £100, for making a false report of his cargo to the Customs, under 11 Geo. 4. Sec. 13.

The defendant pleaded the general issue.

The Solicitor General opened the pleadings, and the Attorney General stated the case to the Jury.

Mr. James Brown. - I am the first clerk to the Collector of Customs, he is absent and I act in his place; I remember the Sarah arriving in this Port on or about the 30th of October; the defendant in this case was master of her; twenty-hour hours are allowed to make their report in; I hold the report made by defendant in my hand; it was signed by him in my presence; I gave him the usual caution and told him to be particular about his cargo, and the quantity of surplus stores; three puncheons of rum are reported as cargo, and one containing about ninety gallons as stores; I never saw defendant write as I know of; the declaration was made in my presence, and he handed it to me; I hold in my hand a manifest of the cargo of the Sarah at the time of leaving Hobart Town, it is signed by the Collector and Comptroller of that Port; I never saw them write, but we have received letters from them and acted upon them; the signatures are the same; the manifest is made out from the boarding officer; Mr. Jeffrey was the boarding officer on this occasion.

Cross-examined. - The Sarah brought about one hundred and twenty-three persons to this Colony; she brought a general cargo from Liverpool; ten puncheons of rum were shipped at that place, I know it by the cockets; there were on board a crew of fourteen, thirteen cabin passengers, and forty-seven steerage passengers; I cannot say how many stopped at Hobart Town; I have been in the Customs for some time; the defendant has not been in the Colony during the existence of the present Custom's Act; I think he made the report the day after he arrived; I told him the propriety of making a report of all the cargo and stores he had on board; I did not tell him he would be liable to a penalty if he did not; I don't think any Port Regulations were in existence then, if there were, it was Mr. Jeffrey's duty to give them to defendant, not mine; after the seizure of the spirits on board his vessel took place, he wished to amend his report; it was about four days after he made the report; we did not listen to his application; the first and second mates made affidavit as to the cause; they were laid before me and Mr. Lauga; we could not enter into them, as it was contrary to the practice of the service, as they related to goods that were under seizure; the master stated in extenuation that he had a number of passengers on board, and was lumbered up with baggage; he did not tell me that the issue of spirits were so large as to leave no data on his mind as to the remainder of the issuable stores; I believe neither vessel nor master was here before.

Re-examined. - It is customary in all ports to make a report of the cargo on board; it is not peculiar to this port; there were six children out of the cabin, and seventeen out of the steerage passengers; it was after the seizure he wished to mend his report, if he had made it before, and it had been satisfactory, he would have been allowed to amend it, if it was satisfactory to Mr. Lauga and me; I have a cocket of ten puncheons of rum from Liverpool, here is the clearance, signed by the Collector of that port; I have obtained them just now from the Solicitor General, I or Mr. Lauga gave them to him.

Judge Burton. - We can know nothing about them.  I never saw cases so badly conducted.

Mr. Thomas Jeffrey. - I am a landing waiter and tide surveyor in the Customs; the brig Sarah, Isaac Smith, master, arrived here from Liverpool via Hobart Town, on the 29th October; I was the boarding officer; I got the cockets and clearance from Liverpool, and the manifest from Hobart Town; these are the same; I told him to report the vessel at the Customs the following day, and to be particular in making his report, as he had upwards of 1,100 gallons of rum on board; it is shipped as cargo; he could not legally use it as stores, but it is sometimes the case; I did not tell him the consequence if he did not make a true report; there were no printed port regulations at that time; there are now; hearing that rum was selling cheap on the Rocks, I went on board the vessels in harbour, and the first was the brig Sarah; I took with me a memorandum of the report he had made; this was on the 3rd of November; defendant was not there, but the chief officer, I told him what I had come for; I went down in the hold with the chief officer and the tide waiter on board, and among the water casks I found four full puncheons of rum, and two ullages; there were nothing but water casks in the hold; they were easily to be seen; there was no baggage that was principally between deck; I seized one puncheon and an ullage that had not been reported, and carried it to the  King's Store, after that the captain came, and offerred some explanation; I told him I could not hear it, and that he would have some difficulty in explaining the circumstance to the Customs.

Cross-examined. - I delivered no copy of the port regulations to defendant; we do so now by a Government regulation; that Act was in force then; I do not know any other cause why it should be done; I don't expect any part of the fine, it will depend upon the Board of Customs; I said nothing to the master about penalty if he did not make a true report; she brought out other things besides passengers; the rum for passengers is shipped on a victualling bill, here no rum is mentioned; the ten puncheons of rum were shipped here decidedly to serve the passengers; on boarding the vessel at first I did not go below, or in the cabin; at the time I made the seizure the passengers had gone on shore; some of the baggage might have been full abreast, and at a little distance two ullages; there was no attempt at concealment, then it was no use; there were originally 11 or 1,200 gallons shipped; I did not expect to find it all, as they were using it; in the manifest from Hobart Town, there are ten puncheons stated; I think it might have been a mistake; there are instances of vessels going in and obtaining spirits on the voyage; there was no explanation given at the time I found the spirits, but Captain Smith did the same afternoon; I do not know where the mates are now; the vessel is paid off and sold.

Re-examined. - The report at Hobart Town might have been made under a mistake; I can't give an opinion whether a mistake occurred here.

By a Juror. - By the cockets from Liverpool it appears that there were ten puncheons of rum on board, and the manifest from Hobart Town give the same number; I found the rum surrounded by water casks; some of the water was stowed in puncheons; the Tide Waiter remained on board till I made the seizure; the mate did not tell me he knew they were puncheons of rum; I did not ask him when I went on board if he knew how much rum there was; it is customary if a ship is going to lie here any length of time, to take the rum on shore to the King's Warehouse till she sails again.

R. Cope. - I am a Tide Waiter to the Customs; I went on board the brig Sarah when she arrived here on the 29th of October; I remained eight or nine days; I remember Mr. Jeffrey coming on board some days after she arrived; I went with him into the hold and discovered some empty water casks, some ballast, four full puncheons of rum, and two ullage; Mr. Jeffrey seized a full and an ullaged puncheon.

Cross-examined. - We were not long finding out the spirits; they were bedded in the ballast and water casks round them; they were in a group except one of the ullages which was a few yards distant; we discovered them after looking a few minutes; all could be seen but one, which was concealed by a water cask which was on the top of it; the men belonging to the ship were discharging cargo; there was very little except baggage, of that there was a great quantity, but it was all gone at the time Mr. Jeffery came on board; it is my duty to see nothing discharged from the vessel without an order from the Customs; I saw nothing attempted to be landed while I was on board, which was about nine days; some of the passengers were mechanics and some pensioners; I think she was a brig of 300 tons; between decks she was fitted up for passengers; the surplus baggage is stowed in the hold, the usuable articles were kept in the berths.

By a Juror. - The puncheons we found were stowed in ballast and among water casks, which were chiefly butts; I remember none of the water being stowed in puncheons; the puncheon out of sight was stowed as any other goods might be in the hold.

This closed the case on the part of the Crown.

Mr. Norton observed, that he arose to defend the defendant under circumstances of great disadvantage, the defendant being forced to trial without one of his witnesses being in the Colony.  This case had been set down last term for trial, when the record was withdrawn, the Solicitor General saying the case was settled; and he was not a little astonished at it being now brought on.

Judge Burton wished to know how that occurred.

The Solicitor General observed, that it was in consequence of a compromise having been entered into by defendant, which was never completed, and was only done with a view of allowing him to quit the Colony.

Mr. Norton continued - it might be asked, why he did not produce the first and second officers of the vessel?  But the statement made last term that the case was settled, prevented him from examining those parties de bene esse, as they were then in the Colony.  A statement had been made on the other side, that it was not customary to deliver to the master of vessels, in October last, a copy of the port regulations; but by the Act of 3rd William 4, No 3, section 9, passed in August last, it was imperative that it should be done by the boarding officer; had such been the case it would have made the master of the vessel on his guard, and prevented his appearing in Court that day.

Mr. E. Philip Robinson - I am clerk to Mr. Lamb; he was agent for the brig Sarah, of which defendant was master; she came to Liverpool, via Hobart Town, with passengers, and a little cargo.  The vessel is here now; she was paid off and sold.  The first and second mates shipped on board the Hashmy, which vessel sailed in May last; it was subsequently to this case being set down for trial before.  The value of a puncheon on board ship is £10, the duty payable is 6s. 6d. per gallon.  I went with Smith to the Customs when he entered inwards; I went with him once or twice to speak to Mr. Brown, about the spirits that were seized, to explain how they were omitted, three or four days after his arrival.  The spirits were not returned.

Cross-examined. - Mr. Lamb was agent for the vessel; I believe Mr. Lamb is bail for the defendant; we have nothing to do with the captain now; I am not aware that Mr. Lamb obtained notice of these trials pending before defendant left; defendant was notified in the paper as master of  the brig Wellington, of which Mr. Lamb was agent.

Re-examined. - Defendant did not sail as the master of that vessel; Robinson, her former master, did; it was him who told me to put in that advertisement.

By a Juror. - The explanation was not listened to, or received by the Customs' officer; I am not aware that any enquiry was gone into.

Captain Bunn. - I am a merchant in this town; I have commanded ships for a number of years; I have made false reports at home of cargo paying duty, and have been allowed to mend it; I have had articles seized and returned on a representation to the Commissioners; it is notorious that cases of seizure of ships and cargo are investigated by them; I am not aware that in any port regulations are not provided.

Cross-examined. - It is necessary to make a report; I think most would know that; but some masters are such fools, they hardly know their right hand from their left; it is generally the case for the master to ask the officer who first comes on board, what he is to do - and the answer is ``make your report to be sure."  In some ships, they kept a regular account of the expenditure, but generally in the merchant service it is not done so regularly as it should be.

The Solicitor General having replied, the learned Judge summed up, observing, that if the defendant made the report falsely, knowing it to be so, then the Crown were entitled to a verdict; but if he made the report falsely, yet if he made it as far as it could be known to him, taking into consideration that no notice was given him, that he was liable to a fine if he made it incorrect, that there was no oath which might have made him more careless than if such a solemnity had been attached to it, and considering the crowded state of the ship - if, with all these circumstances, he had made the report falsely, but not wilfully, then they would find a verdict for the defendant.

The Jury found a verdict for defendant.

The Attorney and Solicitor General for plaintiff, Mr. Norton for defendant.


Forbes C.J. and Burton J., 5 October 1833

Source: Australian, 11 October 1833[2 ]


Saturday. - The Chief Justice and Judge Burton took their seats in Banco this morning.

In re the Attorney General v. Smith. - This was an information filed against the defendant on the part of the Crown, to recover a penalty of 100, under the 4th Geo. IV Chap. 4, Sec. 4, for making a false return, as master of the ship Sarah, of there being on board that vessel two puncheons of rum, and an ullage, when there were three puncheons and two ullages.  The case was tried last term before Judge Burton and a special Jury, when a verdict was found for the defendant.

The Solicitor General now moved for the verdict to be set aside and a new trial granted on the following grounds. -  1st. That the verdict was contrary to the weight of evidence.  2d That the evidence adduced did not warrant finding for defendant, there being no evidence to show that defendant had not a knowledge of the things seized, and 3d. That evidence was allowed to go to the Jury which ought not to have gone to them.  The learned gentleman in support of his motions contended tat such a degree of ignorance ought to have been shown by defendant as to excuse him; such was not adduced and therefore the Jury ought not to have found for the defendant.  It was the practice of the Court of Exchequer that where the goods were found in a house it was presumed to be with the knowledge of the party living there, so here, the goods were found on board defendants ship.  The evidence at the trial went to show that any one going into the hold could not have reported one portion of spirits without a knowledge of the rest as it was all together.  The question as to no notice being given by the boarding officer was not raised here as it was not imperative, he did all that was necessary namely, telling the defendant that he must make a true report; if the law was founded on the verdict it would leave a door open by which every master of a vessel might escape in a very obvious way, he might say to his mate, put down just what number you like and if there is no proof that I do not actually know of the remainder I shall not be responsible; but a master was answerable for the acts of his mate if he adopted them.  There was a novel question raised in this case, the Act of Parliament under which this information was filed was put into the hands of the jury, that system was irregular, the jury were bound to take the law from the Judges and not appoint themselves judges, it was an irregular course as laid down in 3d. Carrington and Pain. 310, where a treatise on the law was not allowed to be put into the hands of a jury.  He considered these grounds sufficient for the Court to grant the present application.

Mr Norton opposed the motion.  The Jury had a right to dispose of the question raised, whether due diligence had been used by defendant, it could be never a question of law; had the articles in this case been part of a cargo shipped from England that had undergone no change during the passage the jury might have arrived at the conclusion that it was false, and defendant liable to pay the penalty; the evidence he (Mr. N.) adduced on the trial showed the contrary and almost the impossibility of giving a true report; that the defendant presumed the report was correct was borne out by the boarding officer, there was no concealment, and that there was a large quantity of baggage which was moved about from place to place.  Then the Port Regulations should have been delivered to the defendant; it could not be urged against the defendant that Government had not printed them, it was quite enough for him to prove that he had not the benefit of that which was intended for his preservation, in the absence of that he could not be charged in the same manner as if he had that information.  It had been alledged [sic] that the boarding officer told defendant to make a true return, but he did not revert to the penalties, this was taken no doubt into consideration by the jury at the time of exercising their judgment on the case, and whether the concealment was such as contemplated by the act, which says that the report shall be made as far as can be within his knowledge; that question must be decided by them.  If the Court granted this application he hoped the Court would grant a commission for the defendant to examine his witnesses who had left the Colony.

The Solicitor General replied that the witnesses had not gone away until after issue joined and therefore they might have been examined de bene esse.

The Chief Justice was of opinion that the justice of the case did not require it to be sent to another jury.  There were two points on which this application was made to the Court.  1st. Misdirection, and 2d. Irregularity.  As to the Port Regulations he should not touch upon them, as they had no thing at all to do with the case, - the 13 Geo. 4, No. 6, enacted that every master should deliver a due report of the crew, lading and marks, and what portion was intended for exportation, as far as such particulars may be known, that applied to the cargo as well as to the Stores, the qualifying words were introduced to prevent parties being taken advantage of through error.  The question in this case was whether the report made by defendant was falsely made, he knowing that it was so.  It was clear that there was no attempt to smuggle or any overt act to land them contrary to the act; if so that would have been a guilty knowledge, but here the error was discovered by information afforded by defendant.  The jury had or had not a question of fact to determine, if they had a right to determine they might have considered the evidence furnished by defendant enough for them to have drawn the conclusion which they have done.

Judge Burton arrived as the same conclusion, - The Jury were judges of the facts, and he would always lean against disturbing a verdict of a Jury.  It was unconstitutional, except in cases where manifest injustice had been done.  If the facts were sufficient to warrant the conclusion which they had arrived at, he would not disturb the verdict.  The Jury had a due regard to their obligation.  If they acted wrong, the public would soon be dissatisfied with them.  If not, it would stand for ever.  He wished Juries to know that their verdicts should never be tampered with.  At least he publicly pledged himself that he should not do so. -  As to negligence in making the report, there were presumptions on both sides, and it was the province of a Jury to decide.  Motion refused.



[1 ] See also Australian, 5 July 1833. On customs duties, see also Attorney General v. Green, 1833; Attorney General v. Dwyer, 1833.

The Australian reported on 18 November 1833 that Dowling J had tried a man for burglary, who was acquitted.  Dowling thought he was guilty on the facts, and recommended he be taken from assigned service and sent to a road gang.  This outraged the Australian.

[2 ] See also Sydney Gazette, 10 October 1833; Sydney Herald, 7 October 1833.

Published by the Division of Law, Macquarie University