[ wine, alcohol, seizure of goods, customs ]

R. v. Cockburn

Supreme Court of New South Wales

Dowling C.J., 9 April 1842

Source: The Australian, 14 April 1842

This case was opened by Mr. Broadhurst, who recited the allegation set forth in the libel, from which it appeared, that a quantity of wine called “ Benecarlo wine,” per the ship Margaret, had arrived in the port, in August last, and had been landed at the wharf of Messrs, Dunlop and Co., and seized by the officers of Her Majesty's Customs, on the ground that it was not wine but brandy coloured.

            The Solicitor-General moved that the spirits be condemned, on which Mr. Windeyer, for the defence, addressed the Court at length, contending that the question was whether the disputed liquor was wine or coloured spirits. He had been able to discover form the Acts of Parliament what was considered to be wine and what was not. He had not either been able to discover any case in the books which bore upon the present case. An observation had been made, however, by the Chief Baron a case which would be found on page 126, in the 1 st of Crumpton and Jarvis, which deserved attention, viz :- “That the name accorded to articles by those who traded in them, was the denomination under which they were received.”   All the witnesses spoke of the present liquor as “ Benecarlo wine,” and therefore the Court was obliged to recognise it as such. It was not alleged that any fraud had been intended against the Customs. The wine was shipped and invoiced as “ Benecarlo wine,” and had been openly landed at the wharf, and the entries proved at the Custom House as such. The officers of the Custom house had treated it as wine, and the duty for it was received as such, and it was only when an outcry was raised against the wine by other parties, that any thing was done to demand an extra duty. An extra duty was then demanded and in part paid, but still it was considered as wine, and after this, the whole was seized by the Customs as being wrongly discoloured. The defendant had no control over the quality of the wine, which arrived and bore the usual appearance of Benecarlo wine, and all that the evidence alleged against it was, that it was stronger than ordinary for wine of that description. The learned Council argued also, on the necessary introduction of brandy into the wine for the purpose of fortification, and concluded by moving that the evidence for the defence should be read. The evidence which was very lengthy, went to prove that the wine was shipped and passed at the Customs house as Benecarlo wine, and also the opinion of several dealers and brokers, that it was “ Benecarlo wine” fortified with spirit to preserve it against the climate.

            The Solicitor-General, in replying to the evidence, said that the seizure had been made under the 20 th section of the local act. He did not dispute that the goods were properly described in the entry passed by the master of the Margaret, but the question at present was entirely as to the quality of the goods. The learned gentleman then read a variety of extracts bearing on the case, and particularly alluded to the statement of Mr. M'Culloch in his Dictionary of Commerce, which limits the amount of spirit for the fortification of wine to twenty per cent. He contended that where wine came to be mixed with spirits the outrageous proportion of the present instance, it came for the purposes of revenue under the denomination of spirit. He considered the evidence that had heard read, tended to shew the liquor was to be described rather as spirits than as wine. The seizure of the goods after the payment of the duty in the first instance, and even of the advanced duty, by the Customs, was justified after their real quality became known.

            Mr. Broadhurst followed on the same side, and the evidence for the crown, to the effect that the liquor described as Benecarlo wine per the ship Margaret, was stronger and contained a larger proportion of spirit than was usual in that wine, being considered as read, Mr Windeyer replied, after which the court said that it should consider the case, and defer its judgment till Wednesday week.

            Solicitor for the defendant, Mr. G.R. Nichols. The court then adjourned.