Hill v Donohoe [1911] HCA 38; (1911) 13 CLR 224 (18 August 1911)

HIGH COURT OF AUSTRALIA

Edgar Hill Defendant, Appellant; and John Thomas Tamplin Donohoe Informant, Respondent.

H C of A

On appeal from a Court of Quarter Sessions of New South Wales.

18 August 1911

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

Mack and Milner Stephen, for the appellant.

Flannery, for the respondent.

Griffith C.J.

Leave to appeal in this case was given principally on the suggestion made to us that the learned Chairman of Quarter Sessions had held that, when once a proclamation has been issued declaring certain goods to be prohibited imports, all goods of that kind found in possession of any person are to be conclusively deemed to have been imported. I think, however, that there must have been some mistake. I am sure that the learned Judge did not lay down any such proposition. Of course, if he did, it could not be sustained. Under the Customs Act the importation of certain classes of goods is prohibited; the goods are put in a class tabooed. If any goods of that class are imported there is a violation of the law. But two separate things have to be established—that the importation is prohibited, and that prohibited goods have been imported. It is now contended that in this case there was no evidence that the goods in question were imported at all. The appellant was found in a boat coming away in the dark from a ship called the Taiyuan, lying at a wharf in Sydney harbour. He was followed by a police officer, and in his possession were found a number of tins of opium. He said to the arresting officer: "Can't we talk business"? In my opinion it is a reasonable inference from that remark that the appellant knew that he had committed a breach of the law, and wished to compound his offence. It is true that no formal evidence was given that the ship regularly traded between Sydney and China. But I do not think it is going very far to say that the Judge was justified in acting on what everybody knew, that the ship was a regular trader between Sydney and China. We certainly did not give leave to appeal on that ground, and should not have given it. If that were the only objection, the leave should be rescinded. Another objection taken is that the section of the Act under which the appellant was convicted is ultra vires of the Federal Parliament law. Sec. 233 (B) (c) provides:—

Any person who (inter alia) without reasonable excuse ... has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act ... shall be guilty of an offence against this Act.

It is contended that the language of this section applies to the case of any person who has in his possession prohibited goods which have in fact been imported, although he may be quite ignorant of the fact. For reasons which I gave in the case of Lyons v. Smart[1] I do not think that that is the meaning of the section. I think that the case of the Queen v. Sleep[2], which I there quoted, is applicable. In that case it was held that under a similar provision knowledge of the character of the goods is an element of the offence.

Whether the section would be ultra vires if read in the wider sense it is not necessary to consider. The section, as I am at present advised, means that any person who, without reasonable excuse, has in his possession any prohibited import which to his knowledge has been imported into Australia in contravention of the Act shall be liable, &c. And, so construed, it seems to me merely ancillary to the provision prohibiting the importation of certain goods. It is to punish an accessory after the fact. It cannot be suggested that the punishment of an accessory after the fact is not ancillary to the prevention of the crime. So construed, the section is clearly not ultra vires. The same evidence which went to show that the goods had been imported showed also that when they came into the possession of the appellant he had knowledge of the fact. The appeal must therefore be dismissed.

Barton J.

I am of the same opinion.

O'Connor J.

I agree.

Appeal dismissed.

Solicitor, for appellant, B. A. McBride.

Solicitor, for respondent, Crown Solicitor for the Commonwealth.

[1] [1908] HCA 34; 6 C.L.R., 143.

[2] 30 L.J.M.C., 170.