Preston v Donohoe [1906] HCA 43; (1906) 3 CLR 1089 (29 June 1906)

HIGH COURT OF AUSTRALIA

Preston v Donohoe.

Gordon v Donohoe.

H C of A

29 June 1906

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

Reid K.C. and Pollock, for the applicants.

Gordon K.C. (Blacket with him), for the respondent.

Reid K.C. in reply.

The judgment of the Court was read by Griffith C.J.

June 29

Griffith C.J.

The appellant, who is the master of the s.s. Mongolia, was convicted on a charge that on 28th February 1906, he was master of a ship from which one Mahomet Mithoo, being a prohibited immigrant, had entered the Commonwealth. The charge was founded upon sec. 9 of the Immigration Restriction Act 1901, which, as amended by sec. 12 of the Immigration Restriction Amendment Act 1905, provides that—"The master ... of any vessel from which any prohibited immigrant enters the Commonwealth contrary to this Act shall be ... liable on summary conviction to a penalty of One hundred pounds." To show that Mahomet Mithoo was a prohibited immigrant, reliance was placed upon par. (k) of sec. 3 of the Act of 1901. That section enumerates seven classes of persons, called in the Act "prohibited immigrants," whose immigration into the Commonwealth is prohibited. The first class is—(a) "Any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer." The section proceeds—"But the following are excepted ... (k) The master and crew of any other vessel landing during the stay of the vessel in any port in the Commonwealth:—Provided that the master shall upon being so required by an officer, and before being permitted to clear out from or leave the port, muster the crew in the presence of an officer; and if it is found that any person, who according to the vessel's articles was one of the crew when she arrived at the port, and who would in the opinion of the officer be a prohibited immigrant but for the exception contained in this paragraph, is not present, then such person shall not be excepted by this paragraph, and until the contrary is proved shall be deemed to be a prohibited immigrant and to have entered the Commonwealth contrary to this Act." This paragraph lays down an artificial rule of evidence, a rule which, in our judgment, is to be applied in any case in which the question arises whether a member of the crew of a ship who is not present at a muster was a prohibited immigrant, or has entered the Commonwealth in contravention of the Act.

Evidence was given that Mahomet Mithoo was a fireman of the Mongolia; that at a muster of the crew in the presence of an officer on the day named in the information he was absent, and that the officer, having regard to his name and occupation, to the fact that he had signed the ship's articles as a marksman, and to his own general knowledge of Asiatic firemen, formed the opinion that Mahomet Mithoo would be a prohibited immigrant but for his being a member of the crew.

Various objections were taken to the conviction, some of which may be shortly disposed of. The first was that it was not alleged by the information that the appellant was the master of the ship on the day when Mahomet Mithoo entered the Commonwealth. It would have been better if the word "then" had been used in the information, but the defect, assuming that the information ought not to be read after conviction as if the word had been inserted, is cured by secs. 65 and 115 of the Justices Act 1902, which authorize the Court, on an appeal brought in the mode adopted in the present case, to amend the conviction according to the evidence. The next objection was that the particular class of prohibited immigrant within which Mahomet Mithoo was alleged to fall was not specified in the information. It may be convenient, but we doubt whether it is necessary, that this should be stated in the information. Assuming that it is strictly speaking necessary, which we do not decide, this objection also is cured by the sections of the Justices Act 1902 already mentioned.

The next objection was that the officer did not apply his mind to the proper question, and that his opinion, therefore, had no legal effect. It appears, however, from the evidence that he directed his attention to the question whether Mahomet Mithoo fell within class (a) of sec. 3. We think that it was necessary to show that the officer had applied his mind to a relevant question: The Queen v. Vestry of St. Pancras[1]; but when he has done so, the opinion which he has formed has the effect which is given to it by the Act, and cannot, in our judgment, be questioned in a prosecution founded upon his opinion.

The substantial objection, however, is that sec. 9 does not apply to such a case as the present. It is contended that a person does not fall within class (a) unless the dictation test has actually been applied to him and he has failed to pass it, and that, as Mahomet Mithoo had admittedly not been subjected to this test, the officer could not have formed the opinion that he fell within that class. The words of par. (k) are—"If it is found that any person, who according to the vessel's articles was one of the crew when she arrived at the port, and who would in the opinion of the officer be a prohibited immigrant but for the exception contained in this paragraph," &c. Under the circumstances supposed, the actual fact cannot be ascertained by personal examination of the suspected person, who has landed under the exception in favour of the crew. The enactment is, therefore, dealing with a case in which the actual fact is not known, but the officer is required to form an opinion as to what would be ascertained to be the truth if circumstances admitted of its ascertainment. The meaning evidently is that the officer should form his opinion that the person in question would, under these circumstances, fall within one of the seven classes. Par. (k) must, therefore, be read as meaning "would, but for his having landed as a member of the crew, have been found" to fall within one of those classes. We are here only concerned with class (a). Par. (k) may, therefore, for the purposes of the present case, be read as if it said—"A person who in the opinion of the officer would have been found to fall within class (a)." What is the meaning of the reference to class (a) in such a connection? Does it mean only persons who have already failed to pass the dictation test, or does it include persons who, if the opportunity had existed, would have failed to pass it? The question whether a named person has failed to pass the test is a question of existing fact, presumably within the knowledge of the officer. The phrase is, however, conditional, and refers to a fact not ascertained, but as to which an opinion may be formed. In our opinion, the words of par. (k) must be read as equivalent to "would upon proper steps being taken for the purpose be proved to be within one of the specified classes." This view is confirmed by a consideration of the words used in defining the other six classes of prohibited immigrants, none of whom, it may be remarked, are persons primâ facie likely to be members of the crew of a ship. In the case of class (b) the prohibition depends on an opinion to be formed by the Minister—an event which has probably not happened when the member of the crew is absent from the muster. Inclusion in the other classes depends upon questions of existing fact. But, while the whole object of the proviso in par. (k) is to deal with absent persons as to whom the actual truth is not certainly known, the result of the construction contended for by the appellant would be that it would fail in its operation, except as to the very limited classes of persons specified in paragraphs (c) to (g). It is, however, evident that par. (k) is intended to meet the case of every member of the crew of a ship who is absent from muster. Moreover, if the construction contended for is adopted, the provisions of par. (k) would be to a great extent nugatory. For if the member of the crew were found, the necessity for the opinion of the officer would cease to exist, since the dictation test could be applied to him, unless the time for applying it had gone by. It was contended that the rule of evidence laid down by this paragraph applies only to a prosecution against the prohibited immigrant himself, but for the reasons just given they would, if applied for that purpose only, be almost, if not entirely, superfluous. It is, in our opinion, clear that the rule is laid down for the purpose of sec. 9, and not merely for the purposes of a prosecution against the man himself. It is plain, therefore, that the main object of the provisions in par. (k), which is to prevent members of a ship's crew from entering the Commonwealth as immigrants without an opportunity of discovering whether they are or are not prohibited immigrants, would be defeated if it were construed as not extending to persons who are in fact unable to pass the dictation test if it could be applied to them. Having regard to the conditional form of the phrase incorporating the reference to class (a), and to the form of the definition of that class, the most natural grammatical construction of the language of the legislature is that the officer is to be of opinion that the person in question is one who would, if called upon, fail to pass the dictation test. In any case, the words are open to that construction, and, as any other construction would defeat the manifest intention of the legislature, it ought, in our judgment, to be adopted.

It follows that in this case, in the absence of evidence to the contrary, the magistrate was bound to find that Mahomet Mithoo was a prohibited immigrant, and had entered the Commonwealth contrary to the Act. The time of his entry must, we think be deemed to have been the time when he was absent from the muster, since his landing before that time fell within the exception in sec. 3. And, as the appellant was then the master of the ship, all the elements of the offence were established, and the conviction was right. We think that there is nothing in the objection that the Immigration Restriction Act is in conflict with the Imperial Merchant Shipping Act.

Gordon v Donoghoe

The facts of this case are not distinguishable from those in Preston v Donoghoe. The same results must, therefore, follow.

Appeals dismissed.

Solicitors, for the appellants, Bradley & Son.

Solicitor, for the respondent, The Crown Solicitor of the Commonwealth.

[1] 24 Q.B.D., 371, at p. 375.