Pearce v Jones [1917] HCA 50; (1917) 23 CLR 438 (24 September 1917)

HIGH COURT OF AUSTRALIA

Pearce Defendant, Appellant; and Jones Informant, Respondent.

Smith Defendant, Appellant; and Jones Informant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

24 September 1917

Barton, Isaacs and Gavan Duffy JJ.

Starke (with him Foster), for the appellants.

J. R. Macfarlan (Mann with him), for the respondent.

Foster, in reply.

Barton J.

The defendants were charged under reg. 28 (b) of the War Precautions Regulations, which, so far as is material, provides that any person who by word of mouth makes statements likely to prejudice the recruiting of any of His Majesty's Forces is guilty of an offence. They have obtained orders nisi to review the decision of the Police Magistrate, who convicted and fined both of them. It is said that there is no evidence that either of them did by word of mouth or otherwise make any such statements. Taking the case of Pearce, who was the chairman, he put to the meeting a resolution to the effect that in the opinion of the Trades Hall Council the Political Labour Council Executive should call upon all Labour Members of Parliament to refuse to assist in recruiting. Whatever that resolution did affirm, I do not think that it can be said that the chairman affirmed it. By putting the resolution I do not think he, by word of mouth or in any other way, made the statement contained in the resolution. He invited the meeting, as he was bound to do, to give their affirmance or negation of that view. It was no concern of his, as chairman, whether they affirmed or denied it, and he does not appear to have voted. They happened to affirm it, and it is alleged now that because the affirmance was illegal he in putting the resolution to the meeting did an illegal act. Even if the affirmance of the resolution was an illegal act, I do not think that the chairman was in the relevant sense a party to making it. I do not think I need labour this point. Beyond what I have stated, no evidence was given, and there was no suggestion, that Pearce gave his assent to or furthered in any way the resolution so as to be considered as having adopted it. If he was a party to it in any sense, he was not so in that sense.

The case of Smith is different. He seconded the resolution. In my judgment, and I think I have the concurrence of my brothers, a proposition affirmed in a resolution is equally affirmed by the person who moves the resolution and the person who seconds it. Whether a statement is absolutely repeated in words or whether agreement with it is merely expressed by word of mouth is in common sense and, I think, in law, absolutely the same thing. To have affirmed, by seconding, a resolution that the Political Labour Council should call upon all Labour Members of Parliament to refuse to assist in recruiting, is to become a party to it in the sense of expressing verbally his approval of it. He makes the statement his own. The question then is whether that is a statement likely to prejudice recruiting. I think it is, and on the ground that, this being a meeting of delegates of the Labour Party, before whom presumably the question came within some rule which made it in order, the expression of the opinion that the Political Labour Council should call upon all Labour Members of Parliament to refuse to assist in recruiting was intended to influence someone. It was intended to influence the Political Labour Council, and through them Members of Parliament. If they or some of them were not assisting or were not disposed to assist in recruiting, the resolution would be entirely in the air. We cannot consider the resolution as being anything else than a statement whose meaning was that if there were persons who were assisting or were disposed to assist recruiting they must abandon that attitude, and must refuse to assist or to further assist recruiting. That being the purport of the resolution, it seems to be unarguable that the statement was not likely to prejudice recruiting. That is the short ground upon which I decide. I think, therefore, that Pearce is not shown to have made this statement, and that Smith has been shown to have done so.

The remaining question is as to the reception of evidence. From what has been brought before us I do not think that the Police Magistrate relied upon the evidence objected to in coming to his conclusion, and, therefore, that evidence does not affect the cases as they come before us, so as to invalidate a conviction founded on the evidence, which evidence was sufficient.

I am of opinion that the appeal of Pearce succeeds, and that of Smith fails.

Isaacs J.

I agree.

Gavan Duffy J.

I agree.

Smith's appeal dismissed with costs.

Pearce's appeal allowed. Order appealed from discharged with costs, £4 4s. Respondent to pay costs of appeal.

Solicitors for the appellants, Loughrey & Douglas.

Solicitor for the respondent, Gordon H. Castie, Crown Solicitor for the Commonwealth.