Gabriel v Ah Mook [1924] HCA 42; (1924) 34 CLR 591 (6 November 1924)

HIGH COURT OF AUSTRALIA

Gabriel Informant, Appellant; and Ah Mook Defendant, Respondent.

H C of A

On appeal from a Court of Summary Jurisdiction of South Australia.

6 November 1924

Isaacs A.C.J. Gavan Duffy and Starke JJ.

Cleland K.C. (with him Ward), for the appellant.

Abbott, for the respondent.

Cleland K.C., in reply.

The Court delivered the following written judgment:—

Oct. 14

Isaacs A.C.J.

Gavan Duffy and Starke JJ.

This is an appeal from the decision of a Stipendiary Magistrate at Adelaide sitting in Federal jurisdiction.

A complaint was made on 6th June 1924 by the appellant, an officer of the Home and Territories Department, containing several averments, namely, (i.) that the respondent was an immigrant; (ii.) that he was at Adelaide required on 16th May 1924 to pass the dictation test and failed to do so; (iii.) that he entered the Commonwealth of Australia within three years before failing to pass such dictation test; (iv.) that he was found in Adelaide on 16th May 1924 in contravention of the Act.

As to (i.) and (ii.) and (iv.), the evidence was clear and undisputed. But as to (iii.), there was evidence that, on being questioned by the officer as to when he entered the Commonwealth, he gave answers which the Stipendiary Magistrate describes as "not satisfactory." The respondent said he had been in Australia thirty-five years, and was twenty-nine years of age. The Magistrate, seeing there was some evidence as to the period the respondent had been in the Commonwealth which the prosecutor had elected to put before the Court, thought he was bound by the decisions of this Court in Adelaide Steamship Co. v. The King[1], affirmed on appeal (Attorney-General of the Commonwealth v. Adelaide Steamship Co.[2]); Symons v. Schiffmann[3] and Schiffmann v. Whitton[4], to disregard the provisions of sub-sec. 3 of sec. 5 of the Immigration Act 1901-1920. Accordingly he disregarded that sub-section, and, although the defendant did not give any personal evidence, the Stipendiary Magistrate dismissed the complaint on the ground that there was no evidence that the defendant entered the Commonwealth within the three years mentioned.

Sub-secs. 2 and 3 of sec. 5 are in these terms:—"(2) Any immigrant may at any time within three years after he has entered the Commonwealth be required to pass the dictation test, and shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act. (3) In any prosecution under the last preceding sub-section, the averment of the prosecutor, contained in the information, that the defendant is an immigrant and has entered the Commonwealth within three years before failing to pass the dictation test, shall be deemed to be proved in the absence of proof to the contrary by the personal evidence of the defendant either with or without other evidence."

What the prior cases referred to establish is that, where the prosecution elects to place before the Court what it represents to be, or what appear to be, all the facts relating to an averment, then it is bound by the proper conclusion to be drawn from those facts. If the proper conclusion is adverse to the averment, it is because the proof is to the contrary. But if it appears that merely some of the relevant facts are proved and that the prosecution is unable for some reason to complete them so as to enable the tribunal to come to a conclusion one way or the other as to the averment, then the cases referred to do not apply. The present case is quite untouched by those precedents. Sub-sec. 3 of sec. 5 exactly meets the circumstances of this case, and there appears to us no escape from the consequences. The third averment must be taken to be proved, and not disproved.

The appeal must be allowed, and the order of dismissal set aside.

Appeal allowed. Appellant to pay costs of appeal in accordance with his undertaking.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth, by Fisher, Ward, Powers & Jeffries.

Solicitor for the respondent, C. L. Abbott.

[1] [1912] HCA 58; (1912) 15 C.L.R. 65.

[2] [1913] UKPCHCA 2; (1913) A.C. 781; 18 C.L.R. 30.

[3] [1915] HCA 65; (1915) 20 C.L.R. 277.

[4] [1916] HCA 60; (1916) 22 C.L.R. 142.