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

Ex parte Girard [1839] NSWSupC 75

smuggling - customs - magistrates, action against - certiorari - criminal procedure, duplicity - supervision of inferior courts - statutory interpretation

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 17 September 1839

Source: Sydney Herald, 18 September 1839

This was an application to the Court for a certiorari directing the Magistrates to bring up the proceedings of a case in which Mr. Girard was fined £100 for being concerned in conveying smuggled brandy.  The certiorari was granted upon the ground that the conviction did not sufficiently state the circumstances upon which the conviction was founded.


Dowling C.J.,  Willis and Stephen JJ, 19 October 1839

Source: Sydney Herald, 25 October 1839 [1]

Saturday, October 19. -- Before the three Judges.

Ex parte Girard. -- This was a conviction under the Customs' Act, 5 William IV., No. 15, section 58, for being concerned in the conveying of goods, upon which the duty had not been paid.  The proceedings had been brought up by certiorari, and it was contended that the conviction must be quashed upon several grounds, the principle of which was, that the Justices had not shown on the face of the conviction, that the d[e]fendant had been guilty of any infraction of the law.

After hearing the arguments of Counsel the Chief Justice said, the conviction, or rather the copy of it, which has been returned by certiorari into this Court, sets forth that, on a certain day, an information was exhibited by the Officer of Customs before the two convicting Justices against the defendant, who had been brought before them, and who had been and was liable to be arrested and detained, and who had been arrested and detained, for being concerned in conveying goods liable to forfeiture under the Colonial Customs' law; which information charged that defendant was, on the 1st January, 1839, &c. ``concer[n]ed in the conveying certain goods, (to wit, one hogs head of brandy,) liable to forfeiture under the laws relating to the revenue of Customs in force in the said Colony, the same having been unladen from a certain vessel, in a certain port in the said Colony, (to wit, Port Jackson,) without du[e] entry having been made thereof, and the same having been illegally unshipped, the duties lawfully due thereon to our Lady the Queen not having been paid or secured, contrary to the form of the Act, which offence has been duly proved before us the said Justices.  We do therefore adjudge that the said F. Girard hath forfeited for his said offence the sum of £100"  The first objection having been abandoned as untenable, we are now to consider the second, namely, whether there is any offence so aptly charged on the face of the conviction, that the Court can at once see that it is against the Act.  I am of opinion that the conviction is void for uncertainty.  It is a settled principle, as well applicable to summary convictions as to indictments, that the record should contain a charge of the offence with such certainty as that the Court may see that the offender is plainly brought within the law which he is alleged to have broken; so that an innocent person may not be condemned upon a misconstruction of the law, by an inferior tribunal, without any means of redress.  It is true that the schedule to this Act gives a form of conviction, but still that form will not dispense with the allegation of any material fact or averment, so as plainly to show that the party is brought within the penalties of the Act.  The general form given by the Act was merely to supersede the necessity of setting out in the conviction all the evidence of the offence necessary to prove the charge, but not to dispense with a legal and certain description of the offence itself.  The charge here is, ``being concerned in the conveying of the brandy," in the terms of the 58th section, which enacts ``that it shall and may be lawful for any two or more Justices, before whom any person liable to be arrested and detained, for unshipping, carrying, conveying or concealing, or aiding or assisting, or being concerned in unshipping, carrying, conveying or concealing spirits, &c.," shall be brought before the Justices.  There is certainly no scienter required by this section to be averred or proved, as in the second branch of the 55th section, which relates to the concealment of uncustomed goods; but I think that in an Act so penal in its consequences, the conviction ought to have averred in what manner this defendant was concerned in conveying the brandy.  That expression is so loose and vague, that the Act might be construed to work the greatest injury and oppression of an innocent party.  The Customs' laws are no doubt purposely stringent for the protection of the revenue, but still they are not exempt, on that account, from strict construction, so as to prevent possible injustice.  The most innocent person may be concerned in conveying uncustomed goods, and yet not be within the mischief of the law.  A passenger, in a common stage coach, or a ship, or any other vessel containing uncustomed goods, might be brought within the penalty of the law, because he happened to take the reins in his hand o[r] pull a rope, or take an oar.  We are bound, no doubt, to give the justices below credit for having acted upon sufficient proof to satisfy their minds upon the case, but the difficulty I have, is, that the record of their conviction does not aver in what manner this defendant was concerned, so as to shew that he really came within the penalty of the law.  Nothing could have been more easy than to have averred the concern which he had in the transaction according to the fact; as that he was driving, either by himself or his servants, a cart with the brandy in it, from the ship to his own stores, so as to leave no reasonable doubt of his guilt if the facts were proved.  The most unconcerned man might be held to be concerned, unless the facts alleged led to a reasonable presumption that he had a guilty participation in the act charged as an offence.  The principle of the case of Rex v. Shield and others (6 East, 417), is very much to the point.  That case arose upon the statute, 39 and 40, Geo. III. c. 106, which enacts, that ``all agreements in writing, or not, by any journeyman manufacture, for controlling any persons carrying on any manufacture, in the conduct thereof, shall be illegal;" and it gives a summary form of conviction, in which the offence is required to be stated; it was held, that a conviction alleging generally, that the defendants were concerned in entering into ``a certain agreement for the purpose of controlling A. B.," without stating what the agreement was, could not be upheld.  So in Rex v. Jukes (8 Term Reports, 542) there was a provisio in the statute, 36 Geo. III. c. 60, that no conviction for any offence under that act should be set aside for want of form, provided the material facts alleged were proved; but it was held, that this did not dispense with the allegation of a material fact. I think that, in the present case, it was material to allege the manner in which the defendant was concerned in removing this brandy, in order that a guilty inference might be drawn from the statement.  All that appears on the record is, the legal result from certain facts, which were probably proved.  Here there is no overt act laid, shewing how he was concerned.  It may be that the conviction uses the very terms of the act, but there are cases which go to shew that in describing the offences, the conviction must be more particular than the act itself.  The act in question makes use of general terms which embrace a variety of circumstances, and it was necessary to state what particular fact prohibited, was committed.  In Rex v. James (Caldwell 458), which was a conviction on the Lottery Act, 22 Geo. III. c. 47, Buller, J. says:  ``It is not true that in framing a conviction, it is sufficient to follow the words of the statute in all cases.  In some, indeed it may be, as where the statute gives a particular description of the offence; but it is otherwise where a particular offence is included under a general description.  Where a particular act constitutes the offence, it may be enough to describe it in the words of the legislature; but where the legislature speaks in general terms, the conviction must state what act in particular was done by the party [blurred line] charge."  Here the offence is in being concerned in removing the brandy.  How concerned?  Some circumstance should have been shewn to fix the defendant with a violation of the act.  I, therefore, think that this conviction must be quashed.

The other judges concurred.


[1] See also Australian, 22 October 1839; Sydney Herald, 21 October 1839; Sydney Gazette, 22 October 1839.

Published by the Division of Law, Macquarie University