Christie v Ah Sheung [1906] HCA 41; (1906) 3 CLR 998 (29 June 1906)

HIGH COURT OF AUSTRALIA

Christie Informant, Appellant; and Ah Sheung Defendant, Respondent.

H C of A

On appeal from the Court of Petty Sessions at Melbourne, Victoria.

29 June 1906

Griffith C.J., Barton and O'Connor JJ.

Bryant, for the appellant.

H. Barrett and Arthur, for the respondent.

Bryant, in reply.

Griffith C.J.

This is an appeal from the decision of a Police Magistrate dismissing a charge against the respondent that he was a prohibited immigrant found within the Commonwealth on 30th March 1906. Before the magistrate sufficient primâ facie evidence was given to prove that the respondent was a prohibited immigrant in that he had failed to pass the dictation test. The defence set up was that he was a naturalized subject of the King in Victoria. It was admitted that there was a person named Ah Sheung who was a naturalized subject of the King in Victoria, but the identity of the respondent with that person was disputed. In support of the defence a judgment of Cussen J. was tendered in evidence and was admitted, in which that learned Judge had, in a controversy between the respondent and the master of the ship by which he came to Victoria, arrived at the conclusion on the evidence then before him that the respondent was the person named in the letters of naturalization. That judgment on that fact is conclusive only as between the master of the ship and the respondent, but it is clearly inadmissible evidence of the fact as between the Commonwealth or the King and the respondent. The evidence therefore ought not to have been received. It was the duty of the magistrate to ascertain for himself whether the respondent was or was not the person named in the letters of naturalization. If on a re-hearing the magistrate comes to the conclusion on the facts that the respondent is not that person, it will be his duty to convict. Cussen J. was of opinion that, if the respondent was the person named in the letters of naturalization, he was not a prohibited immigrant. But before that question of law can arise it must be ascertained whether the respondent is that person. So far as this case is concerned, the decision of the magistrate is wrong. He considered himself bound by the finding of fact of Cussen J. As to the matter of law, he would naturally follow the opinion of the learned Judge. But on the question of fact he was not bound by the judgment. That judgment was not admissible or relevant as to the question of identity, and the magistrate ought not to have acted upon it. The case must, therefore, go back to the magistrate for re-hearing.

Appeal allowed. Order absolute. Case remitted to the magistrate for re-hearing.

Solicitor, for appellant, Charles Powers, Crown Solicitor for the Commonwealth.

Solicitor, for respondent, Sabelberg, Melbourne.