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

R. v. Sawyer [1842] NSWSupC 47 R. v. Sawyer [1842] NSWSupC 47

Water Police - statutory interpretation, penal statutes

Supreme Court of New South Wales

Stephen J., 11 January 1842

Source: Sydney Herald, 12 January 1842 [1]

            In this case, the defendant, William Henry Sawyer, was indicted, for having, on the 19th December, obstructed A. H. Austin, Inspector of the Water Police, in the discharge of his duty.

After giving an outline of the case, the Solicitor-General called A. H. Austin, who gave the following evidence:- I am an officer in the Water Police; I know the defendant, he is the owner of the Coquette; I had charge as Inspector of the lower station, we always see the Custom House clearance of vessels leaving the port; the Coquette had gone to sea and taken the clearance with her. On Sunday, the 19th December, I boarded the Coquette under weigh for sea off Watson's Bay, the defendant being on board; after receiving the clearance I mustered the crew and passengers, and among the latter was the defendant and a female, both of whom answered to the name of Swayer, the female was said to be below; I said, she must come on deck, which she did; I called one of my boatmen who knew the defendant and his wife, and asked him if the female was defendant's wife, when the boatman said he was ready to swear that she was not the woman defendant was married to, and had the children by; I then said, I must take this woman on shore with me as she is on board under a fictitious name; the defendant said I should not, and if I attempted to lay a hand on her he would throw me overboard; I said well if you will not allow me to take the woman on shore, I will prevent you from going to sea; to which, he replied that if the wind was a little freer he would defy me and all the police to detain her. He then ordered the vessel to proceed, telling me that he would not allow me to take the female on shore, as he would rather lose one thousand pounds than allow me to take her; soon after he ordered the vessel's sails to be backed, and said to me, Austin, there is the tiller, and if you will take it you may, if not I will take it and proceed direct to sea; I then said I should make nothing ado about that, and ordered one of my boatmen to take the helm, which he did, and we brought the vessel back to Sydney; on our way back, I said the female's name was not Sawyer, but Worgan, which the defendant did not deny; the defendant also reminded me that on a previous occasion he had nearly swamped my boat, and that if he had had my boat fast to the Coquette he would have swamped her, and left us to get ashore as we could.

Cross-examined. - The vessel was under way, but hove to when I boarded to clear her. Every facility was afforded to me in searching the Coquette , and you did not obstruct me in doing this part of my duty. You asked me if we would take the vessel into Watson's Bay, when I told you. I would rather take her up to Sydney , when we brought her back to Farm Cove. I have on a previous occasion found a person with no name entered on the clearance, and have inserted the right name, and allowed the person to proceed, as he had a letter from the Governor, and was going along the coast as a surveyor, I did not directly ask her to come ashore with me, as she refused to tell me her name.

Thomas Smith, one of the water police boats' crew was next called, and deposed to hearing the defendant say he would sooner throw the complainant overboard than allow the female to be taken on shore.

In cross-examination, this witness stated that he saw no obstruction offered by the defendant to the vessel being brought back.

Howard, another boatman, gave similar evidence.

Mr. Purefoy, for the defence, contended that there was no evidence to go to the jury, that his client had either resisted or wilfully obstructed the complainant, who even, according to his own opinion, was not warranted by the clause referred to in bringing parties ashore whose names happen to be wrong entered in the clearance. He considered that it would be a dangerous thing to allow any superintendent of police to go on board a vessel and force parties who are misnamed in the clearance to accompany them on shore.

His Honor was sorry that he should be called on to decide the point in question, as it was a most important one; but in his opinion, there was no case to go the Jury, inasmuch as the act on which the information was passed was a highly penal one, and therefore he was bound to give it the strictest interpretation it admitted of; besides there was a variance between the misdemeanour as laid in the information, and as described in the act - he considered that the words of the act should have been literally copied - he did not think that the principal witness had gone so far as he ought to have done, had he but laid hands on the female to get her into the boat, and the defendant had then interfered, the case would have been made out, and the defendant would have been liable to the punishment prescribed. He had no doubt as to the authority of the water police to compel parties entered in the clearance under fictitious names, to come on shore with them; and those who interfered, by preventing the police from lodging them in safe custody, were punishable under the act; he regretted that the principles on which penal statutes were interpreted, did not allow him to put the case to the Jury, as there was ample evidence of the threat having been made, which, to a certain extent, was an obstruction; but not to such an extent as that contemplated by the act. He referred to the strict interpretation given to the excise laws, as a proof that he had complied with the practice of the courts in giving the interpretation he had done of the act. In conclusion, he expressed his approbation of the manner in which Mr. Austin had done his duty, and lamented there could be no conviction, in order that the immorality attempted to be committed might have been punished.

The Jury then acquitted the prisoner, and the Court adjourned till to-day.


[1]See also Sydney Gazette, 13 January 1842.

Published by the Division of Law, Macquarie University