Bain v Ah Kee [1914] HCA 2; (1914) 17 CLR 433 (16 February 1914)

HIGH COURT OF AUSTRALIA

Bain Informant, Appellant; and Ah Kee Defendant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Tasmania.

16 February 1914

Griffith C.J., Barton and Gavan Duffy JJ.

L. L. Dobson, for the appellant.

Ewing, for the respondent, was not called on.

Griffith C.J.

The respondent was charged before a magistrate that he, being a prohibited immigrant, was on 23rd November 1913 found within the Commonwealth. In support of the charge evidence was offered which proved that in July 1909 he was convicted in Launceston upon a charge of being a prohibited immigrant, and sentenced to six months' imprisonment, that he was afterwards liberated on giving a bond to leave the Commonwealth, that then, under another name, he obtained a certificate of exemption, and left the Commonwealth, and that he re-entered it in the year 1910. On these facts the magistrate declined to convict, and stated this case, asking the question whether the fact that the respondent had been previously convicted of being a prohibited immigrant, coupled with his subsequent presence in the Commonwealth, whether he had or had not since his conviction departed from and returned to the Commonwealth, was sufficient to justify his conviction on the charge against him. I will take these elements separately. The point mainly relied upon by the appellant is the previous conviction. That conviction adjudged—and I will assume conclusively adjudged—that at that date, that is to say, in July 1909, the respondent was a prohibited immigrant. I will assume further, that the conviction is conclusive evidence of all that it was necessary to prove in order to obtain the conviction. I turn then to the Statute, and find that all that was necessary to be proved was that the person charged fell within one of several categories which are enumerated in sec. 3 of the Act. Some are of a temporary nature. For instance, the one of which we most commonly hear, namely, failure to pass the dictation test. Another is having been recently convicted of an offence and sentenced to imprisonment for a certain period and not having received a pardon. The conviction cannot be proof of anything more than the facts necessary to be proved in order to obtain it, and, if it does not appear what the actual facts were, the benefit of the doubt must be given to the accused person. It is quite consistent with the facts proved in this case that the respondent was a prohibited immigrant in 1909 because he had then failed to pass the dictation test or was then suffering from an infectious disease. But how are those facts relevant to the question whether in November 1913, which is the relevant time, he fell within any of the categories of the Act? Obviously they are quite irrelevant to that question. Mr. Dobson contended—as he was bound to do in order to sustain his position—that a conviction for being a prohibited immigrant is in the nature of an adjudication of status. That might be so if the facts to be proved under the Act were continuing facts affecting the status of the person charged. But when many of the categories are considered, it is clear that they cannot affect the status. The conviction cannot, therefore, be relied on as sustaining the present charge.

The certificate of exemption was not produced, and we do not know the circumstances under which it was given. It may be that on looking at it it would appear that the case fell within sec. 4 of the Act, or it may not. But no such case was made before the magistrate, and it is quite impossible to send the case back to him for inquiry on a point not made.

The magistrate was, under the circumstances, right in refusing to convict. Whether any other remedy is open to the Commonwealth Government is a matter which does not arise for our decision, and it is not desirable to express any opinion upon it. The appeal must therefore be dismissed.

Barton J.

I am entirely of the same opinion, and do not think that any words of mine could make the matter clearer.

Gavan Duffy J.

I agree.

Appeal dismissed with costs.

Solicitor, for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth, by Dobson, Mitchell & Allport.

Solicitors, for the respondent, Ewing, Hodgman & Seager.