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[fraud, attempt to defraud Government – contract to supply flour – criminal procedure, uncertain charge – criminal procedure, whether offence against statute or common law] R. v. Bogle Supreme Court of
Pedder C.J., Source: The True Colonist, George Bogle was indicted with an attempt to defraud Her Majesty’s Government by delivering to Mr. Henry Ashton an officer of H. M’s Commissariat, 14 sacks of a mixture instead of 12 per cent contract flour; there were two counts in the information, varying the charge; the first charging the defendant with a misdemeanor at common law, the second, with an attempt at a misdemeanor under the statute. The defendant on being arraigned, pleaded not guilty in a low voice. The Attorney and Solicitor Generals conducted the prosecution, and Mr. Macdowell, assisted by Messrs. Allport and Roberts, appeared for the defendant, who was not placed in the dock, but sat in the student’s box. Before the jury were sworn, a short conversation took place relative to the right of the prisoner’s counsel to challenge the jurors, without assigning a reason as in the case of felony. The Attorney General opposed such a course, and contended that sufficient grounds for challenge should be shown, when he would willingly give way. His Honor concurred in this view of the matter, and the jury were sworn, with the following challenges on the part of the defendant, Mr. Rayner, miller, of Macquarie-street, between whom and the defendant, an action at law was pending. (the Attorney General did not admit this a good ground of challenge, but consented to it.) and Mr. Martin, who was said to be interested in the result of try trial. The following were the jurors sworn to the issue:- Messrs. Duncan, Frazer, Marzetti, Coombes, McPherson, Bilton, Oliver, O’Meagher, Roberts,. Hutchinson, Rawlings and R. Bush. The Attorney General being about to address the jury, his Honor (the Chief Justice) suggested that it would be better, perhaps, that one of the counsel for the crown should briefly state the issue to be tried, before the Attorney General addressed his remarks to the jury. The Attorney General immediately acquiesced, observing that he was very glad such was the practice here, as it was at home; he was not aware that such had been the practice. The Solicitor General then opened the pleadings, and having stated the issue to be tried, the Attorney General briefly addressed the jury. The task which he had to perform had been very much narrowed by the statement of his learned friend, the Solicitor General. The defendant was charged by the first count in the information with misdemeanour at common law, in an attempt to defraud the Queen, by trying to pass for flour, what was not flour; this was a misdemeanour at common law, and no more. The second count varied the offence by charging the defendant with an attempt to commit a misdemeanor, created by statute, namely by the False Pretences Act. It may probably be contended on the other side, that the defendant is less guilty in the eye of the law, because he was unsuccessful in his fraudulent attempt; that to endeavour to defraud is no offence, the offence consisting in the successful commission of the fraud. In reply to this, it would be sufficient for him to say that if this doctrine of non-completion was argued, he could produce authorities of the highest character to convince the jury that the offence was the same in point of law as it was in morals. He should be able to show that the offence with which the defendant was charged, was a misdemeanor at common law, and that the mere attempt to commit a fraud upon her Majesty’s Government, was equally a misdemeanor under the statute. It was not his habit, neither was it a proper habit, to inflate his observations with any matter calculated to inflame the minds of the jury; if it was in his power, but it was not, to do so he should, on the present occasion, refrain from doing so, for he wished the case to be considered by the jury in that cool, careful, and deliberate manner, which was justly due to the public at large, to the service of the Queen, and to every individual member of this community; for if a fraud had been committed, it must shed its malign influence over all, and even by an attempt, fraught with dangers of the most detectable description. With these observations, it now remained for him to state merely the outline of the allegations against the defendant, that the jury might the better understand the case. The Attorney General then described the case, briefly commenting upon the different points as he proceeded; he then called - Mr. Henry Ashton, who was examined by the Solicitor General, and deposed as follows:- I am an Officer in her Majesty’ Commissariat at Hobart Town; it is my duty to receive, issue, and account for all provisions received by the Commissariat; it was so on the 18th October last; I know George Bogle, the defendant; on the 18th of October, I received from him some flour, the first quantity consisting of fourteen bags; this flour was returned as being of a very inferior quality; it was brought by a carter whose name I do not know; I saw Bogle afterwards, in reference to this flour, and I showed him a portion of it, and told him it was not sufficiently good in quality; he looked at it, and admitted that it was not good; Bogle then asked me for a portion of the sample which accompanied his tender; the tender was in writing and had reference to an advertisement for flour; there was another load of flour delivered the same day; Bogle came with this second quantity; he showed me a sample from one of the bags, and asked if that would do? Bogle took the flour from the mouth of the sack; I do not know what became of that sample; I said, that would do; it seemed a fair sample of 12 per cent flour; I afterwards examined 3 or 4 sacks with Mr. Nowell; at the top of the sack there was very fair flour of 12 per cent, but the rest was a very inferior mixture - I can hardly say what it was; the fair flour was four or five inches deep; I handled the bottom part and should think it was composed of maize and rice; it was of a dark colour, and very coarse; I took a sample from the top and the bottom of the sacks; I think Mr. Stonor, the Crown Solicitor had those samples; the samples now produced, are, I believe the same; the good flour was worth about £14 or £15 per ton; we were giving at the Commissariat about 13l; the bottom flour was worth from 5l to 6l per ton, but it was not fit to make bread; when I made the examination I sent for Bogle; he came to the Commissariat Stores; the bags and the contents of some of them were shown to him; one bag was emptied out on the floor before him; Bogle was told that 5 bags had been examined, but he saw only the contents of the one emptied on the floor; he regretted very much that it should have occurred, the flour coming in that state; I asked him if the other should be opened in his presence? He said it was unnecessary; he seemed convinced it was all alike; on opening the top of the bag, we could not discover there was any such flour as was at the bottom; I saw the entire contents of 3 bags. By His Honor. - The depth of the inferior flour was from 26 to 30 inches; they were 5 bushels sacks; they remained some time in the stores; they were afterwards returned to Bogle; the flour at the bottom was not so nutritious as that at the top. Cross examined by Mr. Macdowell. - I saw the papers, containing the samples, last at the Police Office, about a month ago; I handed them over in the first instance to Mr. Stonor; I only took two samples, and both from the same bag; I am not certain that the contents are now the same as they were when I took them from the bag; but those I gave to Mr. Stonor were the same; Bogle told me he wanted the original sample to leave with the miller, that nothing inferior might be sent again; I gave him a portion of that sample; I cannot say whether I should know it again; the sample now produced is not like it, but I cannot positively say; I should think it was inferior; I do not think the sample you produce is 12 per cent flour; the No. 2 sample is worse than the sample now produced, but No. 1, is not a great deal better; I am quite sure Bogle took a sample from the bag, and asked if it would do; this flour was not given to me in my office by Mr. Nowell, Bogle being absent; I am positive about this; I consider the flour in No. 2 sample unfit to make bread of. (A biscuit was here given to Mr. Ashton, and his opinion asked as to its quality; after due examination, he pronounced it “pretty fair biscuit.”) Re-examined. - I did not mean that the flour would not make biscuit, but bread; I do not understand biscuit baking; I cannot say I ever heard of pea flour being used for bread. By Mr. Macdowell. - I have heard of rice being issued in time of scarcity, but not rice flour for bread making. Thomas Rayner examined by the Attorney-General, I am a miller by trade, and was employed at the Commissariat Stores on the 18th of October last; I recollect 14 sacks being brought there on that day, they were brought by Mr. Turnbull’s dray. Bogle came with them, the contents of those bags were returned to Bogle; I saw Bogle show Mr. Ashton a sample of flour, on the arrival of a second quantity, which came about 3 o’clock, Bogle came with it; I showed the flour to Mr. Ashton, that is, I untied the bags and presented the flour to him; I believe Bogle handed the flour to Mr. Ashton; the sacks were then taken into the stores, the next day I examined the contents of the lower part of the same sacks; I was led to do so, through a hole in one of the bags, by which I perceived, that the flour was not so good as what we had received; I examined the other bags and found them the same; there was a great difference between the top and the rest of the bag, the quality of the flour at the top was 12 per cent from wheat alone in the regular way of making it. If maize, rice, sharps, and singles were mixed together would not make 12 per cent flour, a miller could not call that a wheaten flour; the flour at the top would make wholesome bread, the flour at the bottom would not make a good wholesome loaf of bread, but an unwholesome one; on looking into the mouth of the sack, the bad flour was not perceptible, the good flour was 4 or 5 inches deep, the bag was a 3 bushel bag, the contents were started on the floor; if the good and bad flour were shaken together they would not have made a good wholesome loaf, I do not think I could have made the bad flour into a loaf of any kind; (the biscuit already handed to Mr. Ashton was given to the witness) the flour at the top of the bag might make such a biscuit as this, that at the bottom would not, nor would both if mixed; this biscuit is not made from genuine wheat, “sharps” or “middlings” is a texture by itself, and commonly used in making biscuit; it is of a flinty nature, decidedly, I should not be so healthy or so strong if I was fed upon bread made of sharps, rice, maize &c. The inferior flour appeared compounded of a mixture of rice, maize, skinless barley and sharps, of an inferior quality. When I discovered the inferior flour, I sent for Mr. Ashton; I saw Bogle at the stores again, he came into the granary with Mr. Ashton. Bogle said if the flour was not good, it was quite unknown to him. I examined several bags with Mr. Ashton and Bogle; Bogle said he had sent good wheat to the mill, and he expected flour that would give satisfaction to the authorities, Bogle pledged his word that there was nothing wrong on his part, if anything was wrong, it was wrong on the part of the miller. Mr. Ashton said as to Mr. Bogle’s word, he could never depend upon any ones word after this. Cross-examined - I believe I was the first who discovered the hole, and through this hole I saw the flour of an inferior quality in the sack; I tasted it, and found it was very bad; I had not looked at the top then, but seeing the flour inferior, I opened the bag. I was at some little distance off when I saw Mr. Ashton and Bogle examining the flour on the dray, I now see these two flours (the samples 1 & 2), and if my eyes do not deceive me very much, I perceive a great difference. I should think a man on horseback could have seen the difference; the hole in the sack was about as wide as my finger is round. I am unfortunately a prisoner; I never expected anything for this discovery; this I swear, (The portion of the original sample for the tender was handed to the witness.) this flour is bad enough but not so bad as either of the others. I could not make a good loaf with it, nor a good biscuit, but a biscuit might be made; I am not a baker but I have baked, the biscuit which I here tasted has not a pleasant taste. Re-examined. -It has not a wholesome taste to my palate, fresh biscuit like this ought not to taste sour. Henry Brock - I am a baker, I know the defendant, and have seen him write that letter addressed to George Maclean, Esq., is in Bogle’s hand writing. I mean the signature. No. 1 sample contains a fair sample of 12 per cent flour, and would make a good loaf; No. 2 sample is composed principally of sharps with a small quantity of flour and rice, I cannot tell whether there is any maize in it; I do not think a nutritious loaf could be made from it; it is as much as it is, that it will stick together. Bran is first taken from the flour, then pollard then sharps, they contain a small portion of flour, the offal is the refuse of what escapes from the flour, I have known it used with fine flour for making coarse bread, there is not in No. 2 sample enough fine flour to make bread with. Cross-examined. - I am also a biscuit baker; we mix the flour according to the quality of the biscuit to be made; we generally use a quantity of sharps for coarse biscuit, and not because we consider it unwholesome. George
Maclean, Esq., - I am assistant-Commissary-General for the Colony;
I purchase stores from her Majesty’s Commissariat; I have seen the
defendant, George Bogle; we had made a contract with him, on the
17th of October, for a supply of flour, for about 25 tons, I think,
at about £13 19s. or £14 per ton; it was for good and wholesome
flour, the produce of Colonial Wheat. This particular flour was
to be sent to Tasman’s Dr. Brock explained the difference between bread made of rice and of wheat; with the relative proportions of starch, gluten, &c., in different kinds of grain, with a view to show that every sort contained less nutrient than wheaten flour. Dr. Henderson.
- Bread composed of rice, maize, and sharps, would kill nine-tenths
of the prisoners, on board ship, in six months; it would vitiate
the blood, which would become attenuated, with unfit to nourish
the body, so that the men would die of scurvy; and scorbutic dysentery
was the most unmanageable disease that came under the notice of
a medical man. If an ordinary labouring man were fed upon such bred,
with such food as prisoners of the crown have, he would very soon
be unable to do any labour at all. Dr. Henderson wished to explain,
as regarded rice, that when thoroughly saturated with water, and
eaten with condiments, as it was eaten in Mr. Henry Degraves. - I had been a miller for 5 years; the sample, No. 1, was worth about £14 per ton; and No. 2 about £13. In his cross-examination Mr. Degraves stated, that three samples were shown to him at the Police Office, each differing in quality. Edward Abbott, Esq. - I am a Justice of the Peace; I saw Bogle on the 26th October, at the Advertiser office, and had some conversation with him. Bogle came to the office to enquire respecting an article which had appeared in the paper of the previous day; he stated, that he had sent flour to the Commissariat, composed of maize, sharps and rice; this conversation had reference to some flour which had been rejected by the Commissariat; a short time afterwards I saw him in conversation with Mr. Gregson and Mr. Wilson; Mr. Gregson advised Bogle not to make such disclosures in my presence, I being a Justice of the Peace. Mr. B O’Neil
Thomas George Gregson, Esq. - At the beginning of November I was at the Advertiser Office with Bogle, and Messrs. Wilson and Abbott; Mr. Abbott asked Bogle how he got on about the flour, Bogle said - “Oh, very well; and I think it is a very great shame, that I, alone, should be attacked in the newspapers, for I have done no more than other millers have done.” I remarked to Bogle, on his saying this, that it was surely no justification of fraud that others had practised it. I asked if the tender was for clean Colonial wheat? He said, it was; I then asked him, if he was not ashamed to boast of having intended to commit a fraud? He replied, no, he was not, as it was a common practice, I expressed my astonishment that Bogle should make such a statement before Mr. Abbott, who was a Magistrate; and I told him, that I should endeavour to convince him that such an attempt should not be made with impunity, and that I should lodge an information before Mr. Price. Bogle said - if he would do so, he would not state what was untrue. I went to the Police Office for the purpose, and Bogle accompanied me a short way; he said; he hoped I should not make a complaint to Mr. Price; I said, I certainly should. Mr. Price, however, was absent from the Office; but subsequently, the matter was taken up by the Crown Solicitor. This being the case for the crown, Mr. Nowell was called by the Attorney-General, in order to afford Mr. Macdowell an opportunity to cross-examine him. The witness stated that he had been a clerk to the Commissariat for 16 or 17 years; he did not know of tenders having been offered with barley meal and pea flour. Mr. Ashton being recalled, stated that he never ordered any other article, except wheat, to be sent to the Penitentiary to be ground; rice has been sent there, but not for that purpose. Mr. Macdowell submitted that the evidence was not sufficient to support the information, and proceeded to point out in what particular manner it was deficient, in doing which, however, he seemed to rely less upon his knowledge of law, than of Lindley Murray. The Attorney-General replied, and cited several authorities in support of the contrary position. His Honor decided, than on the first count the evidence was insufficient, but that the case must go to the jury on the second. Mr. Macdowell then addressed the jury for the defendant. He reflected very strongly upon the absence of the contract or tender, which he likened to the performance of the Tragedy of Hamlet, “the part of Hamlet being omitted by particular desire.” If that tender had been produced, the exact nature of the contract between the Defendant and the Government would have been placed beyond all doubt. So, also, as regarded the samples, in the absence of that contract and those samples, it was impossible for the jury to arrive at a satisfactory conclusion, as to the alleged inferior quality of the flour, said to be supplied by the defendant. The commissariat had not produced the contract, because, by so doing, the case for the defendant would be closed at once, and in his favour. The learned Counsel then adverted to the evidence, commenting upon it as he proceeded. In allusion to the manner in which Mr. Bogle’s method of compounding flour, was received by the Court, he said that Mr. Wilson’s evidence was less that of a moralist than a humorist. This blunder, unexpected from a person who prides himself so much on his knowledge of philosophy as the learned gentleman, caused a universal laugh in the Court, which he, however, bore with his usual good humour, continuing his comments, and leaving the case, with confidence, in the hands of the jury. His Honor, after carefully explaining the nature of the charge for the consideration of the jury, minutely recapitulated the evidence; and the jury, after an absence of about 20 minutes, returned a verdict of Guilty, upon the second count of the information. Mr. Bogle was then admitted to bail, himself in £500 and two sureties in £250 each, to appear on Monday next, to receive judgment. This trial seemed to excite very great interest, as the Court was exceedingly crowded throughout, especially by millers, bakers, and flour contractors. His Honor paid the utmost attention to the pleadings, and to the whole case as it proceeded. Pedder C.J., Source: His Honor the Chief Justice appeared on the Bench for the delivery of his final decision in the case of Mr. Bogle, who had on that day week been found Guilty of a misdemeanor, in defrauding the Government in his contracted supplies of flour. His Honor, entertaining the objection which Mr. Macdowell, as counsel for the defendant, had taken to the information, quashed the verdict, and ordered Mr. Bogle’s discharge, assuring him at the same time, that he might consider himself lucky. Pedder C.J., Source: True Colonist, On Monday the Judges after hearing Mr. McDowell in support of the arrest of judgment, and the Attorney-General in reply delivered their judgment to the following effect:- The Chief Justice said that the defendant having been acquitted on the first count in the information, it was not necessary for the Court to give any opinion upon that count. On the second the defendant stood convicted. The charge is that he attempted to cheat the Queen by false pretences. I know not whether the Attorney-General relied on a conviction at common law or under the statute. But in my opinion, whether at common law or under the statute, the indictment is bad. His Honor then referred to the case of “the King v Pelham.” In indictments for such an offence, the pretence charged to be false must be set forth with sufficient certainty and precision, and that pretence must be as clearly negatived; merely charging that a man falsely pretended something, without directly negativing this alleged false pretence, cannot be sufficient to sustain an indictment, and you must not prove against a man and convict him for what you have not charged him with. I ground my judgment entirely on what appears on the face of this information, without any reference to the facts that appeared on the trial. My learned colleague who did not hear a word of the evidence is quite as able to arrive at a correct decision on the question before us as if he had tried the case. Does this information charge with sufficient certainty any offence in law? I shall not go into the question whether the attempt to cheat the Queen is different from the attempt to cheat a private person. It is not necessary to enter upon that question, for it is clear that the indictment is not sufficient to support a conviction for the offence intended to be charged. The offence stated is that he did so, pretending and causing Mr. Ashton to believe that the contents of the bags were good wholesome and nutritious flour, whereas in truth and in fact they were not flour of such good wholesome and nutritious quality. This was quite consistent with the truth of that charged as false. Not of such good wholesome and nutritious quality does not mean that that it was not good at all, though not so good as the sample of the flour in the mouth of the bag, still it might be good wholesome flour, and the defendant might have committed no offence. We cannot here take into consideration what came out in evidence, we must confine ourselves to the offence charged in the indictment. You cannot charge a man with one offence or where there may be in truth, no offence, and on his trial give evidence that he committed one of a far more serious nature, and proceed to conviction, and on conviction to judgment, for what in fact the man was never charged with. Every man when put on his trial, has a right to know with the utmost certainty and precision what charge he has to defend himself against. If the statute is necessary to sustain the charge, the information ought to have alleged that it was done against the statute, this might have supported an indictment for having cheated but not for having attempted to cheat. Here it is not alleged that defendant did actually cheat, but that he attempted to cheat. Without the statute this was no offence at common law, but the statute having declared that this description of cheating is an offence, the attempt to commit that which is an offence by statute becomes an offence at common law, but to sustain an indictment at common law, you must set forth that he did attempt contrary to some statute to commit the act for which you charge him. We cannot take notice of an offence against any statute unless the statute is pleaded in the information, so that the defendant may know that he is charged under a particular statute. This information is bad in every point of view, and cannot sustain the conviction, it negatives what it does not charge, and without occupying any more time in going over all the grounds, I shall say at once that in my opinion the defendant must be discharged from the conviction under this information. Mr. Justice Montagu. - By the statement of the Attorney-General, it would appear that by the act of which he is convicted, the defendant has committed an offence against the common law, and divers offences against the statute. What has he done, or rather attempted to do? I am sure I cannot discover from this indictment. I can see that he has attempted to cheat. Cheating in trade is a subject for action at civil law, but not an indictable offence. To cheat by selling unwholesome food for the food of man, is an indictable offence; but if sold for the use of fowls, dogs, or pigs, it would not be indictable. The indictment does not allege that it was unwholesome for the food of man, or even that it was intended for the food of man, and the court cannot add so much as the dot of an I to make against the accused. If a person cheats the crown out of any portion of the public revenue, he is indictable at common law; so is any cheat hereby the community, or the public interests, may be injured, such as false scales, weights, or measures, obtaining a part of the public revenue under false pretence, or attempting to obtain it. Defendant is charged with having done certain things for the purpose of obtaining, by false pretences £100 of the monies of our Lady the Queen. What monies? Of the public revenue? Not necessarily, for the Queen has a privy purse, and cheating her of any part of that would be no more than cheating a private individual. The Court can assume nothing. The information must state the fact or such facts as inevitably lead to the conclusion. I cannot tell by this count what the defendant has done. I defy any person to tell by reading this. The mixture might be quicksilver, mercury, arsenic, cannon balls, or any other substance in the world. (Reads information.) I can see that the officers got some mixture and that defendant pretended it was flour. Had the information shewn what the defendant was bound to deliver, and that he delivered something different, that would have been something for the Court to look at. He is charged to have done this to deceive Henry Ashton, one of the Commissariat officers. Is there any connection shown between the Queen and the Commissariat officers? Surely a misdemeanour of common law was never contemplated by the person who drew this information. Did he contemplate a misdemeanour under the statute? What does the statute say? If any person, by any false pretence, obtain from any other person any money or chattel, he shall be guilty of misdemeanour. A hundred pound is no chattel, no money, no valuable security. Was it a hundred promissory notes, a hundred sovereigns, or what was it that he attempted to get? And suppose that Ashton had paid the £100, how would that be obtaining money from the Queen? Her Majesty is not here. But the Act does not apply to Her Majesty, for Her Majesty is not named in the Act; and it is a general rule of law that no Act applies to the Sovereign when she is not particularly mentioned. You do not say that you charge him with that which the statute declares to be a misdemeanour. You should have said that he attempted to do it against the statute. For these reasons the information is bad, both at common law and under the statute, and the defendant must be discharged. The learned Judge then expatiated on the importance of the case, and the enormity of the offence, and cautioned all who heard him against deceiving themselves by the hope that they would escape with impunity if they attempted similar frauds, for he assured them that they were not only punishable for attempting to obtain public money for contracts by false pretences, for delivering articles inferior to what they contracted for; but that every miller, baker, or contractor, who adulterated articles sold for human food, whether to the Government or to individuals, was liable to be indicted and severely punished; and he hoped that in place of persons who were so dishonest as to have recourse to such practices taking encouragement from the escape of the defendant, that what they heard of the law on this case would prove a warning to them, and put an end to such practice, without any example of severe punishment. Notes [1] See also Hobart Town Advertiser, 16 and 23 December 1842; Launceston Examiner, 19 November 1842; Hobart Town Courier, 16 December 1842. |
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