RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 74, 10 February 1862, Page 2

RESIDENT MAGISTRATE'S COURT.

Saturday, February S.

(Before A. 0. Strode, Una., K.M., J. Gillies, Esq., R.M., and Major Richardson.} CONTRAVENTIONS OF TIIE PASSENGER ACT.

The charge of concealment- onboard ship brought against-fifteen of the passengers of the '' Mary K. ltsiy," from Melbourne, and which had been dismissed o;i a technical objection at a sitting of the Court at Tori Chalmers on. Thursday last, wns to ■ have been resumed at Dunediu to-day, and the different parties appeared in Court with their agents, but it was stateu iroui the Bench that the complainant in the case, Car>t. Green,'had 'declined to sa^n.the fresh informations, and had consequently departed from the charge made. ■ The charge of a breach of four sections of the Passengers' Act, brought by Mr. Monson, .Immigration officer, against Captain Green, which was also partially hcaru at i'ort Chalmers on Thursday, was then proceeded with, Mr. Prenrlergast appearing for die defendant, and Mr. Howorth for the Crown, The particular suctions of the Act of which a breach was alleged to have been -committed were the 14th, 16th, 35th, and 73rd, which have reference to th insufficient provision of vessels with water, carrying a i'alse pa=iseij-,(!r nt, uxoeeuiiig iv the number of passengers the limits of a vessel as.defined by statute, and the iiiuicuou of wrong on passiugeii) by a hreuch of the third section, namely, by an insufficient supply if water.

On the case being called, and after a private consultation between the panics with tiieir agents, Mr. Prendercast said that on behalf of the Captain and the centleman who, in Dunedin, was agenu for th>. 7es.sel, Mr. Norton, he had to confess to the eorroct ness of tho charges to a certain extent, and express thi leepest regretthat any grounds for snoh ehargiM ahouU; have arisen. With respect to the Oaptaia, he hm not been aware until the voyage eventuated a-.i it div, vhat anything required by the Act was wanting, bit; he found that, under the Act, he could bos conte..U against certain of the charges brought sgainst him *nd for this dereliction he now made the fullest apology. The asents were not here to bo communicate with, "but on their behalf hs ffii prepare-! to promisu that all reparation should be made. To the charg.; )f want of water he pleaded guilty for them, and waseady to pay the penalty, with £15 as the costr, of the Jourt, whiie expressing the deepest regret thai by an accumulation of eireumsta.-iccs iv the case if this ship, a brcneh of the law should on their part have -iccurred. Mr. iloworth, for the prosecution, said that if the Court agrees! to this proposed condonation of the defendant's offence, the"penalty for want of water would amount to £50. In addition to that, however, there was the charge of having an excessive number of passengers on boar I, and the justice of the case might be met by enforcing the payment of other £50, a moiety of which would be presented to the persons on board. The sum of 3s. in such a cmc was ÜBu:ilh paid over, and to that extent the money lnighc be distributed to such of the parties concerned as nii^in apply for it. The example might be as salutary as ii * greater penalty were imposed. It wiis the first- instance of such an offence that had come before th. Court since the discovery of the goldtields, and this example might, without a greater penalty, prevent the occurrence of such an offence iv future.

Mr. Strode, after consultation with his brother magistrates, said it was the desire of the Bench that the ease should be gone into, it being in their opinion necessary that the precise number of passengers wlu> were on board in exo«sss of the number allowed bj statute should be ascertained. It might be sufficient if the complainant and the defendant would agree at to the number. For the offence specified, it was laid down by tho Act, iv the particular section having reference thereto, that a penalty not exceeding £-0 or less than £'> hi paid for every passenger in escess. Mi-. Howorth said there were indisputably fifteen in excels.

Mr. Strode inquired if the prosecutor limited the charge to fifteen, and if in any of the cases then were extenuating circumstances.

Mr. Preudorgast believed Mr. Monson would noi eo'itradict him in the: statement, that when h: (Mr. Monson) went on hoard the ship and pa3se.l tinpassengers, there were found on board fifteen persons unpossessed of tickets. These persons, he waprepared to state, came on board without the knowledge of the Captain, and, on tfceir discovery at Port Philip Heads, they were ordered to clear out, bu' they insisted upon remaining, and did so, Captain Green distinctly informing them that they did so nt their own ri.<k as to the consequences. Mr. Howorth said that on the arrival of the vessel *t Port Chalmers the passengers were counted by the Immigration officer, and lie found an excess o-twenty-eight, fourteen of whom had tickets. Theothrr fourteen passengers had no tickets. Tim mim'vr which the ye sel was empowered by statute to carr\ was 190 A statute adult. Mr. Prendevgfist repeated that the Captain wa quite unaware until he got to the Melbourne Hcvlts that he had a single person on board in exce s of the number passed by the officer, and, as to the other items of offence the firm to whom the vessel had boon consigned felt it, as he had said, to be the oii-y honorable course for them as British merchants to admit tin." circumstances of the case. As to the charterers in Melbourne he was not in a position to state anything regarding cither their knowledge or their ignorance of the circumstances.

Mr. (iiliies askel what explanation there -was to jmv as to ths fourteen passengers who had passage tickets, and yet wre in excess of the proper number? Mr. Prendergnst. said hU instructions were that, nxcpt in the casa of th' fourteen xvitiuiu; tickets, till* Cnprain wa? unaware th-it there was on board a sin— fr:..' pHi-mi over the legi imate number, and of course Mr M'Farla'ic, tho offi :«r nr Mul'iounic, would not j h.iv- 1 cleared the ship had there baen too many on bowl.

Tip B«v'», aft "v somo furtherEq:i'>=ii'-ninpr, came to t f conefusion i.a: at least Mr. Mou.-cn's evidence ihouid be taktu.

Mr. Monfon, tv!:o \tom accordingly examined, stated that on the arrival of the " M;iry K. Ray " at Port Chalmers on the Jih instant, h' iMarded her in tin: di-chnrgo of his duty, mustered and counted Urn ■ pa^sonsers, and found that there were on hoard 218 statute adults. By measurement, and by the ship's papers, he found that the total number which thn ship was ptsipnTreved to carry w»« 190},. being a difference against the vessel of 27 £. On going on board, he was told by the master that he had fifteen stowaways on board, and on examination it was found that there were fifteen persons without tickets. He told the captain that those persons must be given into custody, or he should have to do it, and the'cap tain accordingly gave them in charge.- On the ship's list, the number of passengers was.stated a3 being equal to 190.1,. When he first left the ahip the captain was not aware that there was an excess of 13 having tickets, neither was lie himself until lie made a proper examination of the papers. Subsequently, lie had the vessel measured, and found the measurement to coincide with that stated, as in several otiier instances be had found to be the case with vessels coming from Melbourne. In justice to the captain, he had to state that, on first going on board, he (the captain) informed him of an excessive number of passengers through the presence of stowaways. \ The Bench inquired if, on the part of the defendant, the<c numbers wore admitted. Mr. Prendcrgast askevl first of Mr. Monson what was the amount of excess he meant to say there was over the fifteen.

Mr. Monson said the numbers would be equal to 12A, or, as another ticket had bee produced, 13J. Mr". Prendergrast pointed out that on the passenger list there had been a number of names deleted, and asked it three blanks did not bring, the list down to the proper number. Air. Monson said these were the names of persons who were not on board to the knowledge of the officer at Melbourne, but they nevertheless were on board, or persons for them. The Bench haviajr wished Mr. Monson's examination to be continued as to the breach of the 10th section, relating to " wilfully false passenger lists," Mr. Monson, in answer to Mr. Howorth. said the passenger list of thu " Mary E. Ray" was distinctly a wilfully f;dse list. He described the list as wilfully false because he found a number on board who had passage tickets, but whose names were not entered on the list.

The Bench said, as to the 35th section, it related U> the question of wateralone, and the fact of an insufficient supply in this case was admitted. Mr. Prendergast said, i.'i extenuation, that the quantity of wafer was of course examined by Mr. M'Farlane, and found sufficient, and it was not to bo supposed that any would hi taken out of the vessel after he left, but the fifteen persons who were subsequently found on board, necessarily rendered thft supply inadequate. Had the Captain acted according to a "stern sense of duty, he would, no doubt, have saved himself the cha.ices of any such contingency, byputting thess pei sons ashore in the face qt all appeals, but, as it had happened, he confessed himself wrong, and hoped the Court would take as lenient a view of the case as possible. This apology _oa the part of the Captain was no new thing, for he stated the facts to Air. Monson when he first went on buard. If the owners were to blame, they were capable of answering for themselves, but ho trusted the Bench would hold out some encouragement to such an honorable course being taken a-« wag on this occasion taken by the Captain a..d the resident agents of the ship. "He hoped, at least, that th» Bench would omit the fifteen from the number of persons thpy Blight calculate to be in excess of the legitimate nature. A very large penalty.had been imposed upon the ship in loss of time, trouble, public exposure, and the amount of fine already confessed to in the Court, and to aid tothat a fine for a number of persons who might have come on board by collusion with those on shore, but who certainly remained by an overpersuasion of the Captain, which he now regretted, would bj to aggravate the disastrous eflects of theeo proceedings. Mr. Howorth said the Act v,-as a stringent one, though not more than public necessity required it to be. Had it not been so, the evils which it was intended to meet would not have been stopped, as they had greatly been. He was not, however, disposed to say anything in aggravation of the charges, bjcause in all cases where a party admitted his offence, he was entitled to the fact being taken into consideration. The Court was in, possession of the facts in this case, mid ir. was a matterfor its decision whether it should accept the ofier made by the defendant, or g« into an estimate of what, in the Court's opinion, he was entitled to pay. In cases of a similar nature which had come before the Court hitherto, it had not been usual to inflict the extreme penalty, and there was no jioubt that in this ease the penalty in such a sh:ipe would ninnunt to a very serious .sum. In some of the colonies large fines had been inflicted, but that had not l;eeu the ease here. This was the first charge of th« kind which had been made since the goklfields Viad b'-en opened, and the decision of the Court would, no doubt, have a salutary influence in preventing the recurrence of similar ottenecs.

The Src.irisrratcs having retired and consulted, "tated their decision to be, that for the offence, under the 14th section of the Act—havinpron board ]:assen-ip-iis in excess of the local number—the defendant 'hou7d p'iy £205, beinj; £10 per head for each of the 13.J passenpers in excess, nnd £5 per head ibr the ot-brr 14 passengers in excess; (hat for his breach of the£l(ith section—bavins: a false passenger list—ho should pny a fine of £20; and for his breach of the 35th, having an insufficient supply of water—£so; and, under the 73rd section, they ordend that for injury done to the pxssengers by this iiisutniiency of water, lie should pay 10s a head, or (qnal to £109, ths t( tal amount of the penalty being-, therefore, £384.Tie decision seemed considerably to surprise tha defendant and his agent, and Mr. Premlergli.lt ask«d it'the conduct of the Captain wa3 not to taken into favourable eonsK.eKuKu.

The Bench said that in consideration of that element iv the case, they had b-sen aslenicnc to the defendant sw it was possible to be under the Act. Mr. Gillies stated that the fine impossible for a false passenger list was £100, bat the magistrates had limited it to £20. Mr. Howortii applied for the expenses of eight witue.ises whom lie had bsen prepare 1 to call, and tliif, at the rate of 10s. each, was allowed, making tlie total amount to be paid by the defendant, £3SS 7a. 6d. Mr. Prendergatit siill hopud the Court would not insis-.t upon the penalty fjr the fourteen passe; gers in excels.

Mr. Gillies explained that, though the statement of the Captain as to-thests fourteen mi^ht be correct^ tho Jtiui t was not in possession of evidence on the subject, but they had, notliwithstaiKUn.s;, limited the penalty i/j the minimum. It vras to be remembered t<;o that die captain or owners had received pas&igc-inoney for such ot these passengers, and by that fact the penalty >ras neaessarilv lessened.

Major Hifharikon stated that the Court had, in i:ou-idci'ntion of the eircum stances of the case, warded the smallest penalty if was possible to ask with due attention to the terms of the Act

Mi" Prendergust tlid not douhr the Court's faithful ;i'schartrc of its duty, but he could not consider thiit the coiiTiunt of the captain was so culpable as such a penalty represented. A discussion ensued as to the payment of the ;>enaity. Air Pre:idor;>a-t requested an extension of • ho onler, the hanks bi;in{rc!osuiltortli.it. day, but Mr iloworth insisted upon immediate- payment, and the Oourt It -Id that immediate exrnutiin of the onler was -loin iniled by tin Act. The difficult^ wa* settled by Mr Norton comingl forward, aud oiieriiiir to pay the amount on be half of tin: eanfain. wiii -h he subsequently did by placing a cheque for the amount ia the haiids of the clerk. The on y other cns;:s before the Court were a charge of druukenne-s agoiii-t Gmra- Quiulan, fined 20s, ■if indecMit. exjio-uii: agiii st Ti mis Blackstoue, lined os and costs, and of broach of th:: peace aprainst Edward L:iiifr, who. after evidence as to his uniform >;ood charaoter, w:is dNmi-wl wiili a caution.