Ryall v Carroll [1959] HCA 61; (1959) 102 CLR 162 (27 November 1959)

HIGH COURT OF AUSTRALIA

RYALL v. CARROLL [1959] HCA 61; (1959) 102 CLR 162

Criminal Law

High Court of Australia
Dixon C.J.(1), Fullagar(2) and Taylor(3) JJ.

CATCHWORDS

Criminal Law - Carrying on occupation - Interference with right - Interference with particular act - Mens rea - Observance of Law Ordinance (Northern Territory) (No. 21 of 1921), s. 11 (a).

HEARING

Melbourne, 1959, May 27;
Sydney, 1959, November 27. 27:11:1959
APPEALS from the Supreme Court of the Northern Territory.
Ryall v. Carroll

DECISION

November 29.
The following written judgments were delivered:-
DIXON C.J.

This is an appeal by leave from an order of the Supreme Court of the Northern Territory. The order of the Supreme Court allowed an appeal from a conviction by a magistrate upon a complaint by the now appellant against the now respondent. The charge contained in the complaint was that on 27th February 1958 at Darwin the respondent did by a physical act interfere with the right of a person, namely, one Allott, to carry on his lawful occupation, namely, driving a certain truck. The charge was laid under s. 11 of the Observance of Law Ordinance 1921 of the Northern Territory. It appears that on 27th February 1958 there was an industrial dispute concerning a ship called the "Melva" which had arrived at Darwin from Timor. The waterside section of the trades union apparently had decided that they would not allow the cargo to be discharged from the "Melva" or if discharged removed from the wharf. To give effect to this decision the wharf was picketed. Allott was a partner in a firm of carriers called Dave Wests Transport. The business of Dave Wests Transport is that of carrying goods to and from one place to another. The ship's agents had made a contract with the firm to carry empty drums discharged by the ship from the wharf and return later with full drums from an oil company. A body of men picketing the wharf sat and stood in front of the truck driven by Allott and prevented him from driving upon the wharf to the ship's side. The defendant Carroll was one of the body of men and took an active part in the obstruction. He was asked in evidence whether he was deliberately obstructing the passage of the vehicle and said, "Yes". He was asked whether he realized the vehicle was there for the purpose of unloading an overseas ship and said yes, that he knew. This course of conduct on his part and on the part of his companions forms the basis of the charge. Section II of the Observance of Law Ordinance 1921, under which the charge was laid is as follows: "Any person who, by threats, intimidation, violence, force or any physical act, interferes with the right of any person - (a) to carry on his lawful occupation; (b) to obtain or accept or continue in employment; or (c) to obtain any goods or services or the delivery of any goods, shall be guilty of an offence". It will be seen from the terms of the complaint already set out that the words selected from this provision in the formulation of the charge are "by a physical act interfere with the right of a person to carry on his lawful occupation". (at p166)

2. The magistrate was of opinion that the charge was made out but on appeal Kriewaldt J. reversed his decision. His Honour emphasized the word "right" in the expression "right of any person to carry on his lawful occupation" and was of opinion that the interference was not with the "right" although it was or might be an interference with the actual carrying on of the lawful occupation, that is to say, the exercise of the right. I am unable to adopt an interpretation or application of the section which involves this somewhat refined distinction. But at the same time I do not think that his Honour was in error in reversing the magistrate's decision. (at p166)

3. The provision contained in s. 11 of the Observance of Law Ordinance is not easy to construe or apply. The difficulty arises from the generality of the expressions it uses. But I think par. (a) of s. 11 is directed to the prevention by threats, intimidation, violence, force or physical acts of the exercise or pursuit of a calling as such and not to the prohibition of interferences with particular acts which might be done by a man if they were done in the course of his calling. It is the lawful occupation which it is designed to protect. In the same way par. (b) is designed to protect the obtaining, acceptance or continuance of an employment. The occupation or employment is the subject of the legal protection which s. 11 (a) and (b) seeks to give because it is an occupation or employment. Paragraph (c) of s. 11 is directed against boycott or the incidence of a boycott. In the present case the interference with Allott was not directed against his occupation of carrier or against his exercising that occupation or pursuing that calling. What the pickets were doing was to prevent the discharge of the ship's cargo and the delivery of the goods from the ship's side. It happened that Allott or his firm had contracted to take delivery of the goods and carry them away. No doubt this would have been an act done in the course of his occupation. But the meu did not care whether he carried on his occupation or not. They did not attempt to dissuade or force him to abstain from doing so. All they were engaged in doing was impeding the discharge of the ship and the removal of the goods from the wharf. They were not concerned with his occupation as such. It merely happened that he was the carrier concerned. If the consignees had attended themselves for the removal of the goods they would have been impeded in the same way irrespectively of their occupations. If anybody else than Allott had attempted to drive the truck even although his occupation was not a carrier the interference would have been precisely the same. If Allott had taken his truck elsewhere to another job no one would have interfered with him. In these circumstances I do not think that the obstruction to Allott taking delivery of the particular goods from the wharf fell within the offence which s. 11 of the Observance of Law Ordinance 1921 creates. For these reasons I would dismiss the appeal.
Ryall v. Jamieson; v. Donnelly; v. Lawrence; v. Smith (at p167)

4. These four appeals relate to the same matter as the appeal in Ryall v. Carroll. They were not argued separately but we were informed that the fate of the appeals would be determined by the decision in Ryall v. Carroll. The same order should therefore be made in these cases. (at p167)

FULLAGAR J.

Ryall v. Carroll (at p167)

The facts of this case and the relevant provisions of the Ordinance are set out in the judgment of the Chief Justice. (at p167)

2. In giving his reasons for judgment the learned judge of the Supreme Court of the Northern Territory said: "In the view I take of the section, it must appear that the act complained of interfered with the right of a person to carry on his lawful occupation generally before the section applies . . . the appellant's action did not interfere with Allott's right to carry on his lawful occupation elsewhere on that day, nor at that place at any time when the then existing circumstances of an industrial dispute regarding the unloading of the ship were not operative". (at p168)

3. I am, with respect, unable to accept the view which seems to be expressed in these two passages considered alone. There is, however, another passage in his Honour's judgment which probably more accurately expresses his Honour's real view. Omitting the word "generally" and inserting two words which have obviously been accidentally omitted, the passage reads as follows: "In my opinion, the provisions of (s. 11) do not apply to an interference with the exercise of the right to carry on a lawful occupation unless the circumstances surrounding the act of interference lead to the inference that it is interference with the right to carry on that occupation that is the object sought to be attained". With the substance of the view which I understand to be expressed in this passage I agree, and I am of opinion that His Honour rightly allowed the appeal and quashed the conviction. (at p168)

4. The question in the case, as I see it, is as to the intent necessary to constitute an offence under s. 11 (a) of the Ordinance. (at p168)

5. Whether any, and if so what, mens rea is an essential ingredient of an offence created by statute is a question which depends on interpretation of the statute. The relevant considerations are the terms of the definition of the offence, the context in which that definition is found, and the declared or deducible object of the statute. Whether, in the case of a modern statute, assistance is to be found in a presumption for or against a requirement of mens rea is a matter which need not be considered in this case. (at p168)

6. It is obvious, I think, that some intent must be proved in order to establish the commission of an offence under s. 11 (a). The carrying on of a lawful occupation could no doubt be interfered with by a "physical act" which was merely negligent or even accidental, but in such a case it would be impossible to say that there had been an interference with a "right" to carry on a lawful occupation. The question is whether it is sufficient for the prosecution to prove an intention to do an act which in fact interfered with the right (cf. Reg. v. Prince (1875) LR 2 CCR 154), or whether it is necessary to prove an actual intention to interfere with the right - a mind directed to interference with the right (cf. Sherras v. De Rutzen (1895) 1 QB 918) If the former view is correct, the fact that the object of the act done in the present case was not to injure Allott but to prevent the ship from being loaded will be irrelevant. If the latter view is correct, it will follow from that fact that no offence has been committed. (at p169)

7. I am of opinion that the latter view represents the correct interpretation of s. 11 of the Ordinance. There is first the collocation with the words "physical act" of the words "threats", "intimidation", "violence" and "force". A "physical act" may no doubt be lawful or unlawful in itself, but the other four terms denote acts prima facie unlawful in themselves - acts which no Ordinance is needed to prohibit. This strongly suggests that the first of the offences created lies not in acts done as such, but in acts done with a particular object in view. In the next place, what the section prohibits is not interference with a person in doing a thing but interference with a person's right to do a thing. What is contemplated is the existence of a right and an act done in intentional derogation of that right - not merely an act intentionally done which happens to have a particular physical effect. Finally, I think that the nature of the "rights" protected and the fact that it is from "interference" that they are protected are matters which support the same conclusion. It is difficult, for example, to imagine a case where there is a physical interference with the right of a person to obtain the delivery of goods otherwise than by an act deliberately undertaken with that end in view. (at p169)

8. In the present case the evidence does not establish an intention on the part of the defendant to interfere with the right of Allott to carry on his lawful occupation. Indeed I think it establishes the contrary. I do not think that there is, within the meaning of s. 11 (a) an interference with the right of a person to carry on his lawful occupation if there is merely an interference with an act which he is at the relevant moment occupied in doing. There must be an interference with him in carrying on the occupation which he normally follows - the occupation of a carpenter or a waterside worker or a carrier. It happened in this particular case that Allott was engaged in his normal occupation as a carrier. But that was the merest accident. His progress was not impeded because he was engaged in that occupation, or with the intention of preventing him from engaging in that occupation. The impeding would have taken place just the same if he had been a member of the ship's crew who had volunterred to drive cargo to the ship. The mind of the defendant was not directed to an act prohibited by s. 11 (a) but to the preventing of cargo from reaching the ship. Since the necessary intent did not accompany the act, the conviction was rightly quashed by Kriewaldt J. It may be that a charge under s. 11 (c) should have succeeded, but the charge was not laid under s.11(c).
Ryall v. Jamieson; v. Donnelly; v. Lawrence; v. Smith (at p170)

9. For the reasons which I have given in the case of Ryall v. Carroll I am of opinion that in each of these cases also the appeal should be dismissed. (at p170)

TAYLOR J.

Ryall v. Carroll; v. Jamieson; v. Donnelly; v. Lawrence; v. Smith

I agree that these appeals should be dismissed and I have nothing to add to the observations of the Chief Justice in Ryall v. Carroll. (at p170)

ORDER

Appeals dismissed with costs.