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

R. v. Smart [1834] NSWSupC 52

stealing - customs duties - Salem, imports from - goods, title to - United States, trade with

Supreme Court of New South Wales

Forbes C.J., 6 May 1834

Source: Sydney Herald, 8 May 1834[1 ]

Tuesday. - Before His Honor the Chief Justice and a Civil Jury.

William Smart was indicted for stealing six kegs of tobacco, from the King's Bonded Stores, Sydney, on the 27th of January last, the property of James Driver; other counts laid the property in other parties.

James Driver, Esq. - I arrived in command of the American brig Black Warrior, in October last; I imported a quantity of tobacco, and lodged six hundred and fifteen kegs in the bonded stores; I am part owner of the vessel and cargo; and an agent for my co-partners, Rogers and Co., of Salem, in the United States.  This witness was cross-examined at some length, the object of which was to affect the validity of the indictment, as regarded the laying of the property.

John Edward Turner examined: I reside in Prince-street, Sydney, and hold the situation of locker, in His Majesty's Customs; I had charge of the bonded stores in January last; they are generally called Unwin's stores, but are in the possession of Mr. Warne, who rents them; all goods imported, subject to duty, are lodged in the bonded stores; the doors are secured by two locks; the key of one is in the possession of Mr. Warne, and I keep the other; when any goods are required to be bonded or taken out, Mr. Warne and myself are obliged to be present, as the key kept by both respectively will only open one lock; no goods can leave the stores until the King's Duty and the proprietor's rent are paid; I remember six hundred and fifteen kegs of tobacco, imported by the Black Warrior, being bonded, three hundred of which were bonded in what is called Unwin's stores; they were entered in the warehouse ledger, and marked and numbered as all goods bonded are; the kegs were marked with white paint ``Warrior."  I remember having occasion to examine the locks; it was about Christmas, having heard that a keg of tobacco had been found in George-street; the locks were secure, and there was no appearance of the windows or other part of the building having been broken; on examining the kegs in the stores, four were missing; from that time forward, I redoubled my vigilance, in order to discover, if possible, the parties who were concerned in the transaction, suspecting it to be some of the men in the store; a robbery of this kind can be readily detected by examining the stores and referring to the books; I am of opinion that if any person got into the stores, it must have been by means false keys; early in the morning of Monday, the 27th of January, being informed that a dray laden with tobacco had been captured by the Police, on going to the store, where after the first robbery, I had so disposed the kegs, as to be enabled to miss immediately any that might be taken, I discovered that six kegs numbered 307, 328, 348, 305, and 330, had been taken away; they were in the stores on Saturday evening, and the stores on my return on Monday morning, were secure, as I had left them; I afterwards saw the kegs at the Police Office, and knew them to be part of those imported by Capt. Driver, and deposited in the bonded store; the value of the tobacco at that time was 1s. 2d. per lb.; the value of a keg is about £16.

Cross-examined. - After the first discovery of the robbery of the stores, an enquiry was instituted amongst the Officers of Customs into the circumstances of it, in order to ascertain, if possible, the means by which it had been effected; suspicion fell on some of the men; it might have been taken out by them, but I do not think it probable; I had the whole of the kegs under my eye every day; I usually stand at the door while the men are in the store; it is not my duty to weigh tobacco, or to guage spirits, these being the duties of the landing waiter, I usually stood by; I was continually on the alert after the first robbery, hoping to discover the guilty parties; I have sometimes conversed with Mr. Warne at the door, and in the store, but not so as to prevent my attention being directed to the movements of the men in the store; it is not my duty to collect the duties on tobacco and spirits, that is the duty of Mr. Brown in the long room; I cannot say when I noticed these particular kegs; I should certainly say it was not possible, after the discovery of the first robbery, for the men to take the kegs away; it is my duty to bond all goods and discharge them; on these occasions Mr. Warne is in attendance; sometimes we may converse together, walking backwards and forwards in front of the store.

By the Court. - There were ten kegs missing; I do not conceive it possible for the men to have taken them.

Sydney Smith, - I am an overseer in the Waterloo Stores, I reside in Pitt-street; I was a licenced [sic] drayman in the latter end of January last; a person named Richard Hayes, came to me as I was conversing with another man about a sign-plate for my cart, he said William Smart (the prisoner) wished to speak to me; I went to him, when he said he wanted me to move some goods for him; I had moved furniture for him previously, for which he had never paid me; I observed that it was as well to play for nothing, as to work for nothing; prisoner said he had money now, and pulled some out of his pocket, saying, if I removed his goods I should be immediately paid; I said I could not work my dray then as it was Sunday evening; prisoner said he did not want it then, but he would want me at an early hour on the following morning, between three and four o'clock; I said that was earlier than I usually turned out; he said four o'clock would be time enough, and he would call me up; on the next morning the prisoner came and I put my horse into the dray, and the prisoner directed me to proceed along George-street, and turn up the street which runs between  the Union public-house and the gaol wall, to turn again up the second street to the right, and proceed as far as a blacksmith's shop, which he described to me, and to wait for him; I followed his direction, and waited for him above half an hour; when he came I reproached him for keeping me so long, he said the goods were not ready; he complained of being sick; I was asking him what ailed him, when Richard Hayes came up, and said ``the goods are ready, come on, follow me;" the prisoner and Hayes took me tot he area in front of the Custom House Stores; when I got there, I saw some kegs of tobacco rolled in front of the stores; I said these are curious goods, when the prisoner made answer ``O its all right, there's no fear of you, I'll walk close after the dray;" there was a third man who helped to put the kegs on the dray; I asked the prisoner where I was to take them to; he told me to go by Campbell's gate, and wait there for him; when I reached the gate, I stopped, and called to him to come on; the prisoner told me to go round the point, toward the quarries; he kept up to the dray for a short time, but again fell behind; when near the quarries, I was accosted by a constable, whose name I have since learned to be Welch; he asked me what I had in the dray, and where I was going to; not being able to give a satisfactory answer, I said I did not know, but the master was behind, and would satisfy him; he left me and went towards the prisoner; when the prisoner came up, he appeared something agitated, and said, go on round Church-hill; the constable immediately came up and said he must detain us and the dray, unless we satisfied him what it contained, and where we were going; by this time the prisoner had turned short round into Prince-street; I asked the constable if he had not been satisfied by the master, he said he had not, and must detain the dray; he laid hold of the horse's head, and I said I would go and bring the prisoner to him; I ran into Prince-street, and saw the prisoner walking very fast up the street; I ran and overtook him, and told him the dray had been stopped, and he must come back and satisfy the constable; he muttered some expression of surprise at my having left the dray, and ran away down a lane, when I lost sight of him; I searched Prince-street, and the streets on the rocks for upwards of an hour, without being able to find him; I returned to church-hill, but the dray was gone; I went home and took some breakfast, after which I delivered myself up to Colonel Wilson.

By the Court. - The kegs were in the open space in front of the custom house; I dont [sic] know Unwin's stores; I know the bonded stores; I had frequently received goods there before for the merchants; it is within a few yards of the entrance to the custom house.

Cross-examined. - I did not hear the prisoner say anything about taking the impression of keys at that time; I heard him say something about it a few weeks previously to this transaction; I was not in his company at the time; I was casually passing him in the street; he was in company with others; I heard him say he could do such and such things to keys; I can not say that I understood exactly what was meant; the keys spoken of might have been the keys of his boxes; I dont [sic] know what become of Hayes; I believe he is still in Sydney; I was sent to this country for seven years burglary; I did not go to the prisoner's place on this occasion; Richard Hayes took me to the prisoner; he did not tell me what kind of goods he wanted me to remove; I had removed furniture for him, and supposed it was to do the same again; we made no agreement as to price; I am a licenced [sic] dray-man, and am not in the habit of enquiring the nature of the goods I am employed to remove, before I see them; I charge according to distance; I frequently asked him where he wanted to take the goods to, and he would not tell me; I was not aware of the nature of the transaction; my suspicions were certainly excited by his loitering so far behind, and that was the reason why I asked him the cause of his stopping behind, and reproached him for not coming on to shew me the way I was to go; I gave myself up to Colonel Wilson before dinner that morning, and I informed him of the particulars of the transaction, as far as I knew; it was not in order to shift the high game off myself to the prisoner; he has long shifted the high game on many himself; If I had been conscious of being connected with the transaction, I certainly should not have given myself up; I have no doubt the constable would have known me on seeing me again; part of my name was obliterated from the dray; the constable did not ask my name, or where I lived; I did not hide myself; I heard that Colonel Wilson and a constable had been at my lodgings before I gave myself up.

By a Juror. - I had been a carter about twelve months; it may not be usual to move goods by moonlight; but I have moved goods at all hours.

By Counsel. - I will not say that I like good jobs of this kind in particular; I require nothing but to be paid for my labor; the constable did not attempt to hold the prisoner, nor did I; I dont [sic] think the constable could see the prisoner going along Prince-street, as he stood by the dray; I saw him after I had turned the corner; he was gong away from Church-hill; from time I left the constable with the dray, until I returned, did not exceed two hours; Hayes was not an acquaintance of mine, I had seen him before at the rope walk, in which he was employed, near the flag staff; I used to take rope to that place, which occasioned our slight acquaintance; he used to help me with it off the dray; I never spoke to Colonel Wilson on this matter since I gave myself in charge to him at his own house; I dont [sic] know whether he made a statement of it or not; I did not see him write.

Joseph Smith. - I am an assigned servant to Mr. Langdon; the last witness is my brother; I remember the prisoner and Richard Hayes enquiring where my brother lived; I informed them; I afterwards saw my brother in the watch-house; I was confined there myself for being absent, in consequence of my going to look for him, hearing that he was identified with this transaction; in the watch-house he informed me that he had been hired by Smart.

John Welsh. - I was a constable in January last; I remember that on the 27th January, I was stationed in Darling Harbour; my beat extended from Dawes Battery to Church-hill; on that morning, which was a fine moonlight morning, about twenty minutes past 3 o'clock, I passed two men, one of whom was in his shirt sleeves; they bade me good morning, and I returned the salute, and they passed on; the sound of there footsteps had scarce died away, when I heard the rattling of a cart of dray approaching me, from the direction of the quarries; supposing it to be a person preparing for his daily labor [sic], it excited no great attention, until it approached within sight; it was coming through the quarries, and I had just crossed the road which leads through them, when it drove up; it was laden with something bulky, packed in hay, an dwell secured by ropes; I went up to the carter, and asked him where he was going so early; he said his master was behind and would tell me; seeing a person coming up, who was stated to be the master, I let the cart go on; I waited till he came out of the lane, when he bade me good night, I said good morning rather - what have you got in the cart; he made me no answer, affecting not to hear my question, and pushed on after the cart; my suspicion being awakened, I followed quickly, and overtaking the dray, I said if you do not satisfy me where you are going, and what you have in the dray, I will detain it and you also; by this time the prisoner had turned short into Prince-street; the carter asked if the master had not satisfied me, and I said he had not; the carter then said - I'll go and bring him back and proceeded up Prince-street; I then took the dray and its contents to the Police Office; it was found to contain six kegs of tobacco.

Cross-examined.  -  I am positive as to the identity of the prisoner at the bar; I first knew him by his being in the same situation in which he now stands, about twelve months ago; I heard no conversation between the prisoner and the carter; I did not mention the name of the prisoner when I reported the circumstance to Col. Wilson at his house; he arose and accompanied me to the Police Office; the prisoner's name did not occur to me at that time; it was the witness Sydney Smith who mentioned it on the first transaction; Colonel Wilson interrogated me as to the identity of the prisoner; I said, though I knew the prisoner, still it was a hard thing to swear to a man's features by moonlight; the Colonel said - ``what matters it what you swear to, whether to his face or to his ---, so as you swear to him;" in about a week afterwards I was dismissed; I have had no conversation with Col. Wilson since on that subject.

C. F. Warne. - I am proprietor of the stores at custom House; I have charge of everything lodged therein; there was a quantity of tobacco lodged there in January last that came by the Black Warrior; it was in kegs and hogsheads; I keep one of the keys for the security of my rent; the rent is paid weekly, according to the size of the goods.

The case for the prosecution closed here.

The prisoner called no witnesses, but declared his innocence.

His Honor, in proceeding to recapitulate the evidence, drew the attention of the Jury to the law of the case, as it bore upon the various allegations set forth in the indictment.  If the parties on whom the property had been laid possessed either an absolute or especial right to that property, the indictment was valid; thus, the property being laid in Captain Driver, sustained the indictment, he being owner of the property, conjointly with others in the United States; for the purposes of justice, the property could have been safely laid in Mr. Warne, or in the Crown, as having a lien for the rent and duty on the goods.  His Honor then quoted a clause of the Act for consolidating cases of larcenies relating to ware-houses, and having brought the case clearly within the statute, left the case to the Jury, who returned a verdict of guilty, and sentence of transportation for 10 years was passed upon the prisoner.



[ 1] See also Sydney Gazette, 8 May 1834.

Published by the Division of Law, Macquarie University