By John McKechnie AO, KC
It was the time of the great depression. Thousands were out of work. The depression hit governments hard as well. New Zealand was forced to limit the export of silver money, especially to Australia where it commanded a premium.
Naturally the temptation to smuggle was alluring. And so begins our story.
Sam Willey, a rigger by trade was lucky. He found work as a boatswain on the SS Paiko, a cargo and passenger ship, part of a fleet owned by the New Zealand Shipping Co. A boatswain is responsible for rigging, equipment and general maintenance. The boatswain is effectively chief of the deck crew.
In 1933, SS Paiko left Newport News, Virginia USA for Melbourne Australia, calling at Dunedin NZ. She carried cargo but no passengers. On the 18th of August 1933, she left Dunedin.
Three days after leaving Dunedin, the boatswain Mr Willey was carrying out a routine inspection when something in the forepeak caught his eye. There was a tarpaulin where no tarpaulin should be. He lifted a flap to discover underneath the tarpaulin, a vegetable bag. Inside the bag were English silver coins totalling 355 pounds and 5 shillings.
The boatswain was an honest man. He immediately reported his find to the captain who took the bag and put it in the ship’s safe until they reached port. On arrival in Melbourne, the captain reported the find to the Controller of Customs, Mr Maurice Synan. Mr Synan had joined the Victorian customs service in 1898, the year of Mr Willey’s birth.
He transferred to the Commonwealth customs service on Federation and had enjoyed a distinguished career. He decided that the bag of money would be forfeited to the Commonwealth. The shipping company, the government of New Zealand and Mr Willey all lodged claims to the money but after a time the others withdrew, leaving only Mr Willey to pursue his claim.
This was a matter of Federal jurisdiction. There was no Federal Court of Australia, so Mr Willey lodged his claim in the High Court of Australia.
Matters proceeded at a leisurely pace and it wasn’t until 30 October 1936 that the action was heard before Justice Starke.
By this time, two events of significance had occurred. First, Mr Willey, who had been living in Leichardt NSW, returned to England and his new wife. Of course there were no video facilities back then such as Zoom or Teams and returning in person was too expensive so Mr Willey was unable to give evidence at the hearing. This was to prove decisive.
The second event was that Mr Synan, after watching a cricket match, suffered a heart attack and died on the 8th January 1936. He was 60.
Unusually then, neither party was present to hear Justice Starke, after a short hearing, dismiss Mr Willey’s claim. Even though Mr Willey had told the captain he found the bag of money and the captain had told the customs officers, that evidence was inadmissible. There was no direct evidence that Mr Willey had actually found the bag.
Mr Willey fared no better on the appeal which was heard by the High Court in February 1937. Mr Willey had a supporter. Justice Evatt, always one for the underdog, would have allowed the appeal.
But the other judges would not. Justice Dixon noted that the bag of money was not lost. It was stored where the owner or agent could fetch it. Justice Rich had no doubt that the silver was anything but lost. The embarrassment to the owner had proved sufficient to prevent him from coming forward and claiming the bag. That did not give Mr Willey possession and anyway the evidence was inadmissible.
So the matter ended. The Commonwealth was enriched by 355 pounds and 5 shillings.
The honest boatswain Mr Willey lived in London for the rest of his days, passing away in 1976 at the age of 77.
On the 18th May 1941, en route from Albany WA to Freetown Sierra Leone, SS Paiko was torpedoed off the coast of Liberia by German U boat 107 with the loss of 10 lives.
In the course of his judgment, Justice Rich noted that “the Commonwealth have the advantage of coming within the apothegm Beati possidentes* which, if is not a legal maxim, embodies a legal truth.”
To which might be added another legal truth: Nunquam inter imperium et sacculum pecuniae.**
Adapted from Willey v Synan (1935) 54 CLR 175; Willey v Synan (1937) 57 CLR 201.
*Blessed are the possessors.
**Never get between the government and a bag of money.■
