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High Court of Australia |
ZANETTI v. HILL [1962] HCA 62; (1962) 108 CLR 433
Police Offences
High Court of Australia
Dixon C.J.(1), Kitto(2), Menzies(3) and Owen(4) JJ.
CATCHWORDS
Police Offences - Vagrancy - Absence or insufficiency of lawful and visible means of support - Unlawfulness - Sufficiency of evidence - Degree of proof - Police Act, 1892-1952 (W.A.), s. 65 (1)*.
HEARING
Perth, 1962, June 15;DECISION
December 5.2. A Parliamentary Select Committee on Vagrancy sat in 1821 and as a result 3 Geo. IV c. 40 was enacted to consolidate and amend the laws relating to idle and disorderly persons, rogues and vagabonds, incorrigible rogues and other vagrants in England. By the Vagrancy Act, 1824 (5 Geo. IV c. 83) provisions making certain categories of "rogues and vagabonds" were amended so that the categories were removed to the list of "idle and disorderly persons" (cf. now 25 Geo. V c. 20, s. 1). But "every person wandering abroad and lodging in any barn or outhouse or in any deserted or unoccupied building or in the open air or under a tent or in any cart or waggon, not having any visible means of subsistence and not giving a good account of himself or herself . . . shall be deemed a rogue and vagabond" (s. 4 of 5 Geo. IV c. 83). (at p437)
3. It will be necessary to return to the provisions of s. 65 (1) of the Police Act (W.A.) after stating the facts of the case, but it is obvious that to transfer the application of such provisions from rural England in Tudor times and later, to the very different conditions of city life in Perth and give it a just and respectable operation must involve many difficulties. (at p437)
4. This is an appeal by special leave by a prosecutor against an order of the Supreme Court (Jackson S.P.J.) quashing an order or conviction of the respondent Hill by a stipendiary magistrate under par. (1) of s. 65 of the Police Act (W.A.). It appeared that the defendant had for some time before been engaged in building at Scarborough a dwelling place supposedly for himself. It had advanced far towards completion and it stood on land of the respondent which was subject to no mortgage. The respondent had the trade of a carpenter but had not been employed at wages for a long time. He had spent money, however, on the materials for his house as well as upon other things. The police had questioned him more than once as to his resources or the sources whence he obtained the money he spent and that upon which he lived. He declined to tell them. He had not received unemployment relief but at length he applied for it. That would be a month before his arrest which took place on 12th July 1961. He then had in his personal possession some 45 pounds to 50 pounds. His wife and child were living with him and of the money he gave his wife 15 pounds. (at p438)
5. The magistrate, after listening to evidence to the foregoing effect, called upon the defendant respondent. He gave evidence that in July 1960 he had about 800 pounds and that he gambled and won about 15 pounds a week on which they lived. The stipendiary magistrate rejected this explanation and inferred that there was some other source of income which the defendant appellant did not wish to disclose because it was unlawful. He convicted the appellant and sentenced him to a month's imprisonment. The conviction was that on 11th July 1961 at Scarborough he was a person having no visible means of support and was thereby deemed to be an idle and disorderly person contrary to s. 65 sub-s. (1) of the Police Act: sentenced to be imprisoned for one month. (at p438)
6. Jackson S.P.J. set this conviction aside for reasons which are explained in a judgment which laid down this proposition: "It seems to me that Lee Fan's Case [1907] HCA 54; (1907) 5 CLR 310 in the High Court, and Egan's Case (1949) 51 WALR 83 in our Full Court, clearly establish that under this section the onus is on the prosecution to prove that an accused person has no visible lawful means of support, and although it does not seem directly adverted to in either of those cases I do not doubt that the onus is on the prosecution to prove these facts beyond reasonable doubt. Since Woolmington's Case [1935] UKHL 1; (1935) AC 462 this has been taken in every criminal prosecution - and this, undoubtedly, is a criminal prosecution - to be the standard of proof which is required of the prosecution, and if we are to substitute some other lesser standard then I do not know what it is." (at p438)
7. I cannot agree with this interpretation of the section or subsection, upon which I think Woolmington's Case [1935] UKHL 1; (1935) AC 462 has no bearing. It is legislation belonging really to the period of its origin and it creates a situation hardly compatible with the view that the preliminary condition must be proved byond reasonable doubt. I think that it is enough for the prosecution to raise a reasonable or probable presumption of the absence or insufficiency of visible lawful means of support and then the accused may be put to giving a good account of his means of support to the satisfaction of such justice(s) or magistrate. But at this point I think the appellant's case fails. The defendant respondent presented all the outward appearance of a man hard at work in his own interest, possessing some cash not necessarily insufficient, with the resources disclosed, to enable him to subsist for a little time. He gave to the magistrate what no doubt was a highly suspect account of his source of income and his refusal to explain to the police or, for that matter, more fully to the magistrate, must excite further suspicion. But after all he was not within the original mischief of this description of legislation. Of what type of illegality he was suspected, e.g. gaming, felonious habits or what else, there is, of course, nothing to show. But this legislation was never meant to provide a weapon against the outwardly respectable householder who refuses to divulge his business and declines to discuss his sources of income or subsistence. It has never been regarded as overthrowing the rights to privacy or reticence of the ordinary apparently or outwardly respectable householder. If in a given case appearance and reality do not match it is better to require that the reality should affirmatively be proved. I think the appeal should be dismissed. (at p439)
KITTO J. By special leave, the appellant seeks the reversal of an order of the Supreme Court of Western Australia (Jackson S.P.J.) quashing a conviction of the respondent under s. 65 (1) of the Police Act, 1892-1952 (W.A.). Like the two sections that immediately follow it, s. 65 contains in numbered paragraphs a series of descriptions of persons who are to be deemed to fall within a single denominated category; and it provides the punishment of imprisonment for every person who is convicted of falling within that category. Each of the three sections refers to the fulfilling of any of the descriptions in the numbered paragraphs as the committing of an offence, but the offence really consists in falling within the general category by fulfilling the description. In s. 65 the offence is that of being an idle and disorderly person. The first paragraph of that section contains the following description: "Every person having no visible lawful means of support or insufficient lawful means of support, who being thereto required by any Justice, or who having been duly summoned for such purpose, or brought before any Justice, shall not give a good account of his means of support to the satisfaction of such Justice." (at p439)
2. On 12th July 1961 the respondent was brought before a magistrate on a complaint by the appellant, a detective, charging him with being on 11th July 1961 at Scarborough (near Perth) a person having no visible lawful means of support or insufficient lawful means of support and being thereby (sic) deemed to be an idle and disorderly person. The appellant and two other police officers gave evidence directed to establishing at least a prima facie case of the facts alleged in the information. The respondent, being then called upon or allowed to give an account of his means of support, gave evidence on his own behalf but called no other evidence. At the end of the case the magistrate delivered reasons for judgment in which he recounted what he considered the significant features of the evidence. He found that the prosecution had established a sufficient prima facie case to make it incumbent on the defendant to give a good account of his means, held for reasons which he stated at length that the defendant had not given a good account of his means to his (the magistrate's) satisfaction, and concluded by saying: "To have maintained the defendant's standard of living during the last twelve months, a not inconsiderable income would have been required, yet everything points to him having no income at all. Is not the only inference to be drawn that any income he does receive is from a source he does not wish to disclose? The onus being on him, if his means of support are lawful why does he not state their source? The only inference I can draw is that he does not do so because such source is illegal. He is therefore convicted." (at p440)
3. On appeal, Jackson J. formed the opinion that the complaint should have been dismissed. The learned judge held that under s. 65 (1) the onus lies on the prosecution to prove that an accused person has no visible lawful means of support (his Honour did not refer to insufficient lawful means of support); and he added that the onus is on the prosecution to prove the facts beyond reasonable doubt. He considered that in the case before him that onus had not been discharged. The reasons that he gave for his conclusion may be summarized as follows. (1) The prosecution's evidence before the magistrate showed that prima facie the respondent had visible means of support consisting of an unencumbered house in which he was living, an equity in a motor car, and a sum of money, 40 pounds or 50 pounds, in cash. (2) The only question then was whether or not these means were lawful. (3) Prima facie they were. (4) Evidence that the respondent had not worked for a considerable period of time did not justify an inference that the means were unlawful, and there was nothing else in the police evidence to prove beyond a reasonable doubt that they were unlawful. (5) The magistrate's disbelief of the respondent's explanation of his means could not supply the deficiency: "the wrongful or unnecessary calling upon the defendant to give a good account of his means of support and his failure to satisfy the justices in this regard cannot make up the deficiency in the police case". His Honour added the general observation that "when a man has a house and a motor car and ready money then unless it can be shown that these things have been unlawfully obtained he cannot be successfully prosecuted under this section". (at p440)
4. With great respect, I find myself unable to agree. Although it was not proved beyond reasonable doubt that the house, the car and the small amount of money which the respondent possessed had been come by unlawfully, and although for that reason it was not established that the respondent had no visible lawful means of support, there remained the question whether he had insufficient lawful means of support. The first step towards answering that question must be to decide on the construction of s. 65 (1) what "insufficient" here means. What is the measure to be applied? (at p441)
5. Section 65 (1) is not without its difficulties of construction, but in the main they disappear, I think, when considered in the light of the judgments delivered in this Court in Lee Fan v. Dempsey [1907] HCA 54; (1907) 5 CLR 310 ; and although I do not commit myself to everything that was said by Richards J. in Taylor v. Lenthall (1930) SASR 413 I think that no little assistance is to be gained from a reading of it. Clearly the provision is not directed to the punishment of poverty. It does not imply that there is some standard of living to be regarded as a norm, and provide for the punishment of a person as idle and disorderly because he is unable to maintain that standard. Provisions in the terms of s. 65 (1) seem always to have been understood, as far as I can gather from the cases, as taking a person's actual standard of existence and addressing themselves to the means that he has for his support at that standard. If he either has no lawful means of support visible (in the sense of being apparent to a person exercising reasonable means of inquiry, as Bowen L. J. translated the word in Lea v. Parker (1884) 13 QBD 835, at p 841 ), or has some but not sufficient lawful means of support, the section dubs him an idle and disorderly person and provides for his being imprisoned, provided that a condition is first fulfilled. The condition is that after opportunity given he does not give the justice before whom he comes a good, that is credible, account of his means of support to the satisfaction of the justice. The reason for so treating him is obvious : a person whose means of support so far as they are lawful are insufficient for the way he is living may fairly be regarded as belonging to a class of persons likely to resort for their support to activities from which society needs to protect itself. The concern of the provision, therefore, in the case of a person who is found to have some means of support not shown to be unlawful, is with the lawfulness or unlawfulness of the rest of the means by which he may support himself. It is, I think, a question, not as to whether he has enough to buy the next meal and to provide somewhere for his family to lay their heads the next night - not a question to be answered in his favour by a finding that he has a house, a car and 40 pounds or 50 pounds - but a question of his current mode of living and of the sufficiency of the resources available to him for sustaining that mode of living without resort to unlawful practices. In my opinion it is erroneous to dismiss a charge under s. 65 (1) simply because the defendant has some means of support which, so far as appears, are lawful. (at p442)
6. It is hardly necessary to emphasize, fifty years and more after the decision in Lee Fan v. Dempsey [1907] HCA 54; (1907) 5 CLR 310 , that the words of s. 65 (1) referring to a failure to give a good account do not describe an ingredient in the offence ; they describe only a condition which must be fulfilled before a defendant can be convicted. The complaint in the present case rightly alleged the offence as being deemed an idle and disorderly person on 11th July 1961 because of having no visible lawful means of support or insufficient lawful means of support, making no mention of his not giving a good account. I respectfully agree with Jackson J. that the respondent could not properly be convicted of the offence unless the magistrate were satisfied beyond a reasonable doubt of the facts alleged. I can see no reason for excluding a charge under s. 65 (1) from the application of the jealously guarded principle upon which justice is administered under our system, that save where the Legislature has shown a contrary intention a person is not to be convicted of any offence, great or small, unless the tribunal of fact before which he is charged is satisfied beyond a reasonable doubt that every element of the offence exists. Of course this does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer. The question whether there is a case to answer, arising as it does at the end of the prosecution's evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, - whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt. See May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 . The ultimate question of fact must be decided on the whole of the evidence ; and on a charge under s. 65 (1) there is no more reason than there is in any other case why a weakness in the prosecution's case may not be eked out by something in the case for the defence, or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened into satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so : cf. R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) ; Ex parte Ferguson ; Re Alexander (1944) 45 SR (NSW) 64, at p 67 . I do not understand Jackson J. as suggesting otherwise. His proposition, that the wrongful or unnecessary calling upon the defendant to give a good account and his failure to satisfy the magistrate could not make up the deficiency in the police case, was made on the footing that the only question of fact to be decided was whether the house, the car and the money which the respondent had on 11th July 1961 were not lawful means of support. There was, I agree, no case to answer as to that, and it would not have been right to call upon the defendant to go into the witness box if that had been the only question. But once it is recognized that, assuming the lawfulness of the assets mentioned, the question the magistrate had to decide was whether those assets constituted sufficient means of support for the respondent, and, if not, whether he had other lawful means of support to make up the difference, it becomes inappropriate to speak in the terms his Honour used. On that question, the police evidence, as I hope to show, did establish a prima facie case against the respondent ; the magistrate was right in calling on him for an account of his means of support ; and his statements that were accepted as truthful, his statements that were considered to be lies, and the gaps that existed in the account that he gave, were all properly to be considered on the question whether the offence was proved beyond reasonable doubt. (at p443)
7. Before reviewing the evidence, it is perhaps desirable to add that there is nothing in Lee Fan v. Dempsey [1907] HCA 54; (1907) 5 CLR 310 to suggest that when the prosecution's evidence has raised a prima facie inference of no visible or insufficient lawful means of support the words relating to the defendant's not giving a good account of his means operate to cast upon him the onus of displacing the inference. Since the defendant is, normally, in the best position to know what means of support he has, a failure by him to prove that they are all lawful may well result in the magistrate saying, as Abbott L. C. J. said in R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) "can human reason do otherwise than adopt the conclusion to which the proof tends?" (1820) 4 B & Ald, at p 162 (106 ER, at p 898) But that does not mean that the burden of proof shifts : May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, at pp 657-659 and the words of the section which deal with the failure do not, I think, disclose an intention to produce that result. Their effect is only that there is to be no conviction, however strong the prosecution's evidence may be, unless it is supported by a failure on the part of the defendant to give a good and satisfactory account after being allowed a specific opportunity of disclosing what the means of his support really are. (at p444)
8. I turn, then, to the evidence which the magistrate had before him. The prosecution's evidence showed that the police at Scarborough had been keeping an eye on him for twelve months before the date to which the charge related, viz. 11th July 1961. In that period they had questioned him on no fewer than six occasions, and in the second half of the period the appellant, a detective stationed at Scarborough, had seen him almost daily. The appellant swore that he knew of no employment the respondent had had (no doubt meaning during the last six months), and that no means of support of the respondent had been visible to him during that period. At each of the six interviews the questions put to the respondent were such as to leave him in no doubt that the police wanted to know his means of support, but he resisted their inquiries. At the first interview, on 19th July 1960, what the respondent said was enough by itself to arouse anyone's suspicions : he was not working, he had not worked for a couple of months, and he was not in receipt of social service payments. Asked what money he was living on, he answered that he had about 80 pounds in the Bank, and he said that that was all he had to pull him through until he should get a job. Six weeks later, on 30th August 1960, the appellant saw him sitting in a small Austin car which he said was his. He said he was not working and refused to say where he had got money to buy the car, although the appellant made it clear that he was suspicious by saying that there had been large thefts of money recently and that he was interested in people who did not work and yet spent money. After another three months had gone by, on 8th December 1960, the appellant met the respondent and was told by him that he was getting a rifle. To the question, "Are you working yet?" he replied, "No" ; and when the appellant said he did not see how the respondent could afford to live, run a car and buy guns the respondent replied only that that was his business. The appellant then warned him that he had better get a job or he would end up in trouble. They met again a fortnight later, on 21st December 1960, when the respondent said that he had no job yet and that he was not "on social services". He was asked where he got money to live, and replied as before that it was none of the appellant's business. The appellant put the position to him directly : "In July you admitted you had about 80 pounds in the bank, and, according to you, you have not worked since. You have a car, spend a lot of money on your house, and you frequently drink at the hotel during the day time." But the respondent made no reply beyond referring the appellant to his solicitor. The fifth interview was on 18th April 1961. The appellant asked the respondent whether he had a job yet, and the respondent said, "No, I am building my house." He said he was not on social services, and had no other income. He had complained that a 10 pounds betting ticket had been stolen from him. The appellant said he didn't see how the respondent could afford 10 pounds bets, and the respondent's only reply was that in the last couple of weeks he had "had a fair run on the horses". The question, "Enough to live on?" brought the reply that he had not come to discuss his personal affairs. He was warned that he had better get a job or he might be charged with being an idle and disorderly person ; and he answered, "You can't." After another three months, the respondent having been seen in the meantime driving a new Holden car, the final interview took place on 11th July 1961. The respondent was again in the Holden car. He said he had not got a job yet. The appellant said, "You have admitted to me you haven't worked ; you have got a new car with all extras, spent a lot of money on your house, including a solar hot water service, and now you have applied for social services". The only answer was "That's my business". Some further facts that appeared from the appellant's evidence were that the respondent, who was a carpenter by trade, had in fact been building his house, and that he had acquired the Holden car on hire-purchase, having traded in the Austin for it. He had 35 pounds in his possession when arrested on 11th July 1961. (at p445)
9. This was no meagre prima facie case. It was a powerful case of insufficient lawful means of support ; and it presented the respondent with as plain a challenge as could well be imagined. He went into the witness box to answer it. Not one word of the prosecution's evidence as to the six interviews did he deny or attempt to explain or qualify, but he sought to give an account of his means of support. He said that he had been employed regularly until 1960, and that in July or August of that year he had 700 pounds or 800 pounds which he kept in the house, not in a bank. He paid 19 pounds 10s. 0d. a month for his car. He said he had won an average of 15 pounds a week in betting, but this the magistrate specifically disbelieved. The building of his house was complete ; the property was unencumbered and there was owing for materials only 15 pounds or 20 pounds. The house was for sale at 4,000 pounds. How the materials had been paid for, and how the respondent and his wife and child had been provided for during the year were left unexplained. He had paid 400 pounds over the trade-in allowance for his Holden, 35 pounds for a washing machine, 89 pounds or 98 pounds for carpeting, 100 pounds for a solar hot water system. He had had a trip to Queensland which cost him 150 pounds. He had spent 5 pounds week for living expenses, and had paid for petrol and oil. The rates and taxes on the house had been paid. The instalments on the Holden car were up to date. He said that on 16th July 1961 he had "another 70 pounds in his house, and that this was part of the 700 pounds or 800 pounds that he had had in the previous July. (at p446)
10. The magistrate, as I have said, held that the respondent had not given a good account of his means of support to his (the magistrate's) satisfaction. To me, it would have been surprising if he had held otherwise. He did not specifically state that having reached that conclusion he considered whether the prosecution had established its case beyond a reasonable doubt, but the concluding passage of his reasons, which I have quoted earlier in this judgment, makes it clear enough to my mind that that is what he did. He said that from the respondent's not having stated the source of his means of support - meaning, obviously, the source from which he was meeting all the outgoings involved in the life he was leading and had been leading for the past twelve months and more - the only inference he could draw was that the source was illegal. That seems to me the only possible inference from the whole of the evidence. True, it was not correct to say that the onus was on the respondent, if that meant the onus of disproving the offence ; but I should understand the expression in its context to mean only that the evidence was such as to place the respondent in the position of having to disclose the source of the money he was using for his support if an inference that the source was unlawful was not to be drawn. I do not see how the magistrate, believing the police evidence as he did, and being dissatisfied with the respondent's evidence as he was, could have entertained any reasonable doubt that the respondent's current mode of supporting himself was beyond any means of his that were lawful. (at p446)
11. In my opinion the appeal should be allowed and the conviction restored. (at p446)
MENZIES J. The respondent Hill (whom I shall call "the defendant") was upon the charge of the appellant (whom I shall call "the prosecutor") convicted by a stipendiary magistrate on 26th September 1961 of an offence against the Police Act, 1892-1952 (W.A.), s. 65 (1) viz. that being a person having no visible lawful means of support or insufficient lawful means of support he was thereby deemed to be an idle and disorderly person and he was sentenced to a month's imprisonment. He appealed to the Supreme Court which quashed the conviction and it is from that order that the prosecutor was granted special leave to appeal to this Court. The appeal was heard instanter upon the arguments advanced upon the hearing of the application for special leave to appeal. (at p447)
2. The facts proved by the prosecution before the magistrate were that the defendant, who was a carpenter by trade, had not been gainfully employed for about a year but had spent part of his time building a house for himself at Scarborough which had been fairly well completed, was unencumbered and was worth about 4,000 pounds; that in July 1960 he had told the police that he had 80 pounds in the bank and that would have to last him until he got another job ; that he had not received unemployment relief and had not applied for it until about a month before his arrest; that over the past year he had spent considerable sums of money upon building materials and household goods, gambling, drink, a rifle and a car which he had on hire purchase ; that he had on several occasions, when questioned by the police, refused to disclose the source of the money he was spending ; and that, when he was arrested on 12th July 1961, he had 45 pounds or 50 pounds in his possession, of which he handed 10 pounds or 15 pounds to his wife who, with a child, was living with him. (at p447)
3. The defendant's evidence that he had 700 pounds or 800 pounds in July 1960 and that his betting wins averaged about 15 pounds a week was not believed by the magistrate, who found as follows : "To have maintained the defendant's standard of living during the last twelve months, a not inconsiderable income would have been required, yet everything points to him having no income at all. Is not the only inference to be drawn that any income he does receive is from a source he does not wish to disclose? The onus being on him and if his means of support are lawful why does he not state their source? The only inference I can draw is that he does not do so because such source is illegal". (at p447)
4. In allowing the appeal and quashing the conviction Jackson S.P.J. decided that it was only when the prosecution had proved beyond reasonable doubt that the defendant had no visible lawful means or insufficient lawful means of support that the defendant could be called upon to give a good account of his means of support and that there was insufficient evidence for this purpose. Special leave was granted to consider the correctness of his Honour's interpretation of s. 65. (at p447)
5. The part of s. 65 that is material is as follows : "Every person who shall commit any of the next following offences shall be deemed an idle and disorderly person within the meaning of this Act, and shall on conviction be liable to imprisonment for any term not exceeding six calendar months with or without hard labour : [1907] HCA 54; (1907) 5 CLR 310 Every person having no visible lawful means of support or insufficient lawful means of support, who being thereto required by any Justice, or who having been duly summoned for such purpose, or brought before any Justice, shall not give a good account of his means of support to the satisfaction of such Justice". This provision, I think, requires a person against whom a prima facie case stands that he is without sufficient visible lawful means of support to give a good account of his means of support to avoid his being deemed an idle and disorderly person. This interpretation of the section is that which was adopted by this Court in Lee Fan v. Dempsey [1907] HCA 54; (1907) 5 CLR 310 . Griffith C.J. said : "The practical effect in all these cases is that the alleged offender is to be charged with the facts which prima facie constitute an offence, that the onus to discharge himself is then cast upon him, and that if he fails to discharge that onus he may be convicted" (1907) 5 CLR, at p 315 . Barton J. said : "Apart from procedure, there are in sub-s. (1) of s. 65 two things which constitute the probanda : (a) that the person has no visible lawful means of support or insufficient lawful means of support ; (b) that he fails to satisfy the justice by a 'good', which means a reasonably credible, account, and not what is commonly called a 'thin' one, that he has actual, that is, sufficient means of support. Unless he can do that the prima facie case arising by inference from the absence or insufficiency of means, of which some evidence must first be given (see per Hood J., Appleby v. Armstrong (1901) 27 VLR 136, at p 138 ; 23 ALT 35 ) remains unrebutted, and the justice may and should convict and punish . . . The person liable to conviction under s. 65 (1) as an idle and disorderly person, in that he has no lawful means of support, is, therefore, a person whose means of support are non-apparent or insufficient, in the absence of evidence either on his own part, or on that of others, or both, giving an account of his means of support good enough to satisfy the tribunal. If the man cannot satisfy the tribunal he may be convicted" (1907) 5 CLR, at pp 317, 318 . Isaacs J. said : "He may be charged with being an idle and disorderly person as having no lawful means of support ; he may be summoned upon that charge for the 'purpose' of giving a good account of his means if he can, it being essential, however, that the prosecution should first establish that he is without visible lawful means of support ; or he may be brought before the justice by warrant or summary arrest as prima facie an offender ; and, assuming the onus of proof in the first instance is satisfied by the prosecution, he is then required to displace it, otherwise he may be convicted" (1907) 5 CLR, at p 321 . (at p449)
6. To treat the section as requiring proof beyond reasonable doubt that a person lacks visible lawful means of support before he can be called upon for an account of his means of support would, I think, be contrary to the scheme of the section which is concerned with the maintenance of public order and which requires a person who appears to be within a defined category that menaces public order to satisfy a justice that he is not. It might be theoretically possible for a person of whom a justice, at the end of a case against him, is satisfied beyond reasonable doubt that he lacks visible lawful means of support by further evidence to satisfy the justice to the contrary, but such case would be unusual and the section clearly relates to matters of more common concern. It is a provision creating offences outside the ordinary principles of the criminal law whereby the prosecution must prove every element of an offence beyond reasonable doubt and in specified circumstances the section requires a person charged to exculpate himself to the satisfaction of the justice. The section associated, as it has always been, with vagrancy is concerned with those unsettled and insubstantial persons whose means of livelihood, such as they are, are seemingly outside the law rather than with those who are simply poverty stricken. It is not without significance that those who offend are deemed to be both idle and disorderly (at p449)
7. The question whether the defendant was rightly convicted depends, therefore, upon whether a prima facie case was made that he fell within the description of a "person having no visible lawful means of support or insufficient lawful means of support". I do not think that it was. The evidence showed that means of support, both when he was arrested and during the preceding year, were not lacking - indeed, it seems that he had come under scrutiny if not suspicion because, while not working, he had shown visibly enough that he had plenty of money to spend. The crux of the matter is, therefore, whether there was enough to raise a presumption that the defendant's means of support (which he so obviously had) had not been lawfully obtained. I do not think there was. It is true that where his means of support came from was not explained although the police had asked for an explanation but that of itself - and to guard against misconception I emphasize that there was nothing more - does not give those means of support an unlawful complexion. (at p450)
8. I think that the appeal should be dismissed. (at p450)
OWEN J. I agree with my brother Menzies that Jackson S.P.J. erred in holding that it had to be proved beyond reasonable doubt that the defendant had no visible lawful means of support or insufficient lawful means of support before he could be called upon to give a good account of his means. Whether a person has sufficient lawful means of support is a matter peculiarly within his own knowledge and the section proceeds upon the basis that if evidence is given from which the inference may be drawn that the defendant is without such means it lies upon him to satisfy the magistrate that he has means which are both sufficient and lawful. If he fails to establish either of these facts he is deemed to be an idle and disorderly person. In the present case the evidence led for the prosecution, which is set out at length in the reasons of the learned magistrate, was insufficient, in my opinion, to justify an inference that the defendant had insufficient visible means of support but could justify the conclusion that his means were not derived from a lawful source. That being so, he was rightly called upon to give "a good account of his means of support to the satisfaction of" the magistrate, a phrase which refers not only to the sufficiency of his means but also to the lawfulness of the source from which they come. He failed to give a satisfactory account of that source and was therefore rightly convicted. (at p450)
2. Accordingly I am of opinion that the appeal should be allowed. (at p450)
ORDER
Appeal dismissed with costs.
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