Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125 (29 June 1906)

This is an appeal from the Court of General Sessions at Melbourne dismissing an appeal from a decision of justices by which the appellant was convicted on the charge that, on the 31st October 1905, he, being a prohibited immigrant, was found within the Commonwealth in contravention of the Immigration Restriction Act 1901. The evidence given in support of the information was shortly this:—In October 1904 the appellant had arrived in Victoria in the ship "Changsha," being one of the crew. He was absent from a muster of the crew called in accordance with sec. 3 (k) of the Immigration Restriction Act 1901, whereupon the officer who made the muster formed the opinion, as he said in evidence, "He was in my opinion a prohibited immigrant." The appellant was apparently not discovered until 31st October 1905, when the respondent found him, and proceeded to apply to him the dictation test, which he failed to pass. The information was then laid, accusing the appellant of being on that date a prohibited immigrant found within the Commonwealth.

The argument that the appellant was a prohibited immigrant was based on two separate provisions of sec. 5, which enacts that:—"(1) Any immigrant who evades an officer or who enters the Commonwealth at any place where no officer is stationed may if at any time thereafter he is found within the Commonwealth be asked to comply with the requirements of paragraph (a) of section three, and shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act: (2) Any immigrant may at any time within one year after he has entered the Commonwealth be asked to comply with the requirements of paragraph (a) of section three, and shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act." Under the second paragraph of that section the test must be applied within twelve months of the entry, but, under the first paragraph, in the case of an immigrant who evades an officer, it may be applied at any time.

In the present case it appeared that the appellant deserted his ship and was absent at the muster. The appellant cannot be heard to say that he did not know that he ought to have given an opportunity of being submitted to the dictation test. Persons coming here from abroad cannot escape by saying they do not know the law. In my opinion, therefore, he was a person who evaded an officer within the meaning of sec. 5, and the test was therefore lawfully put to him, although it was not put to him until more than twelve months after the muster was held. Thereupon he became a prohibited immigrant, and being found within the Commonwealth, he was liable to be convicted under sec. 7.

With respect to the argument founded on the second paragraph, the opinion of the Court has previously been stated in the judgment in Preston v. Donohoe[1]. In the present case there may perhaps be some difficulty in applying the evidence to establish the offence. It is, however, unnecessary to say anything further on that point, because the fact of the appellant being a prohibited immigrant was clearly established by his failure to pass the dictation test, he being a person who, in my opinion, had evaded an officer. Therefore, the conviction so far as that goes is right.

Another objection was taken in the nature of a plea of autrefois acquit, or, as it is better stated, on the ground that a man may not be twice vexed for the same cause. That arises from this state of facts. When the appellant first entered the Commonwealth, on 28th October 1904, an information was sworn charging that he was, in the opinion of an officer of Customs, a prohibited immigrant, and was not present when the crew was mustered, and a summons was issued thereon. The appellant, having been found more than a year afterwards, in October 1905, was on 8th November brought before the Police Court on that information, and was convicted of the offence therein charged. He appealed to the Court of General Ssssions on the ground, amongst others, that the conviction, which followed the information, disclosed no offence. The Chairman of that Court was of opinion that that contention was right and quashed the conviction. It is said that, under these circumstances, the matter of the charge against the appellant in the information of 28th November 1904, on which he was convicted on 8th November 1905, was substantially the same as that of the charge against him in the information of 25th January 1906, on which he was convicted on 31st January 1906. The Chairman of General Sessions held, as I have said, that the information in the first case disclosed no offence. Application was made to him to amend the information—it may be, perhaps, that it was the conviction which should have been amended—but he refused to do so. I myself cannot entertain a doubt that he had power to amend. But, he having refused to amend, what effect must be given to the conviction which really disclosed no offence, but which might have been amended so as to render the appellant liable to punishment? Probably the better opinion is that as a matter of law it ought to be held that the appellant was never in jeopardy, but I express no decided opinion upon the point. In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first: See R. v. Drury[2], and other cases cited in Archbold's Criminal Pleading, 21st ed., p. 148. The charge on the second prosecution was that on 31st October 1905, the appellant was a prohibited immigrant found within the Commonwealth. It is obvious that the evidence to support that charge might, at any rate, not have been sufficient to support the charge that the appellant entered the Commonwealth on 22nd October 1904. The charges do not relate to the same day or to the same offence. One offence is entering the Commonwealth, the other is being found within the Commonwealth. It is, no doubt, true that a man cannot be found within the Commonwealth unless he has entered it before the prosecution. On a prosecution for entering the Commonwealth time runs from the entry, but on a prosecution for being a prohibited immigrant found within the Commonwealth the time runs from the time when the two events concur, that is to say, being found within the Commonwealth and being a prohibited immigrant. In this case those two events did not concur until 31st October 1905. Therefore the offences were not substantially the same, and that objection fails. In my opinion, the decision of the Chairman of General Sessions was right, and the appeal should be dismissed.

[1] [1906] HCA 43; 3 C.L.R., 1089.

[2] [1848] EngR 362; 3 C. & K., 193.

High Court of Australia

Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125 (29 June 1906)

HIGH COURT OF AUSTRALIA