Dowling v Bowie

High Court of Australia|1952-07-01|Before: Taylor JJ

The applicant in this matter was convicted before a stipendiary magistrate at Darwin of the offence of selling liquor to one, James Shannon, "a half-caste within the meaning of and for the purposes of the Aboriginals Ordinance 1918-1947 ". The offence was charged under s. 141 of the Licensing Ordinance 1939-1952 N.T., which, in its present form, came into operation on 17th April 1952. That section is in the following terms: - "(1) A person shall not sell, give or supply, or permit to be sold, given or supplied, liquor to a person who is an aboriginal or a half-caste within the meaning, and for the purposes, of the Aboriginals Ordinance 1918-1947. Penalty: Where the offence is a first offence, imprisonment for not less than six months and not more than one year; in any other case, imprisonment for not less than one year and not more than two years. (2) It shall be a defence in proceedings for an offence against this section to prove that the liquor was urgently required for medicinal purposes. (3) Notwithstanding the provisions of this Ordinance or of any other law in force in the Territory, a minimum penalty prescribed by this section shall not be reduced or mitigated".

There is no doubt that Shannon was a half-caste as that term is defined by s. 3 of the Aboriginals Ordinance, but it is equally clear that not every person who is embraced by the terms of this definition is a "half-caste within the meaning and for the purposes" of that Ordinance. This is the result of the promulgation in 1936 of s. 3A of that Ordinance, which provides as follows: - "3a. (1) The Chief Protector may, by notice in the Gazette, declare that any person shall not be deemed to be a half-caste for the purposes of this Ordinance or of any provision thereof. (2) On the publication of any such notice in the Gazette, the person named in the notice shall, to the extent specified therein, cease to be a person to whom the definitions of "aboriginal" and "half-caste" in the last preceding section apply. (3) The Chief Protector may, by notice published in the Gazette, revoke any declaration made in pursuance of sub-section (1) of this section so far as that declaration applies to any particular person and thereupon the declaration shall no longer apply to the person specified in the notice of revocation.". Accordingly, a person named in any such notice ceases to be a person to whom the relevant portions of the definition apply.

The evidence shows that about 7.30 p.m. on 1st July 1952, Shannon was provided by a police officer with a sum of money to enable him to endeavour to purchase liquor at the Parap Hotel in Darwin. After entering the hotel Shannon saw the defendant, who was the son of the licensee and accustomed to assist in the management of the hotel, and asked for a bottle of wine. This was supplied to Shannon over the counter and no suggestion is made that the transaction was not completely open or that anything other than the usual price was charged. Shortly after the purchase the police officer entered the hotel and, after a discussion with the defendant, took him to the police station where he was charged with the offence upon which he was subsequently convicted. He was convicted on the following day and in accordance with s. 141 was sentenced to imprisonment for a period of six months. From this conviction he appealed to the Supreme Court of the Northern Territory and, his appeal having been dismissed, he seeks leave to appeal to this court.

At the close of the proceedings before the stipendiary magistrate, the defendant contended, firstly, that there was no evidence to establish that Shannon was "a half-caste within the meaning and for the purposes of the Aboriginals Ordinance 1918-1947 " or, to employ the expression used during argument, "a person who was not exempt", and secondly, that the evidence established that the defendant honestly believed on reasonable grounds that Shannon was an exempt person. The views of the magistrate on these two contentions did not clearly appear from the transcript before us. He appears to have found that Shannon was "a half-caste and that the defendant sold him liquor", and that therefore he must be convicted. He was, he said, influenced in making this finding by the defendant's own statement that "a half-caste by the name of Shannon came into the bar". These remarks were made after he had convicted the defendant and after he had been invited by the prosecutor to express his views on the contentions to which we have referred. Further, when asked after the conviction had been recorded, if he would be prepared to express his reasons for finding that the accused did not make an honest mistake, the magistrate said that all he was able to say was that he was satisfied that Shannon was a half-caste and that the sale had been made by the defendant. He did add that it might well be that the defendant believed that Shannon was entitled to be supplied and, indeed, that the defendant probably entertained this belief. During the discussion prior to conviction, concerning the question whether there was sufficient evidence that Shannon was one of the class of persons specified in s. 141, the prosecutor suggested to the magistrate that if he had any doubt on this point he might care to act under s. 60 of the Aboriginals Ordinance and having seen Shannon determine the question for himself. The court was referred to the terms of s. 60 and, although a view pursuant to this section would, no doubt, have assisted in determining whether Shannon was racially a half-caste, it is impossible to see how it could have assisted in determining whether Shannon fell within the indeterminate class of half-castes "within the meaning and for the purposes of the Aboriginals Ordinance 1918-1947 ". However, no view took place and the magistrate proceeded upon the basis to which we have referred. What the magistrate's views were concerning the defence of honest belief on reasonable grounds it is impossible to gather from the transcript. He did, however, hold the view that the defendant probably believed that Shannon was an exempt person and said that it might well be "that he did believe that Shannon was entitled to be supplied". But apparently he concluded that no defence on this ground was open and that he was bound to convict the defendant.

On appeal the learned judge of the Supreme Court, after a careful review of the authorities, expressed the view that the onus lay upon the prosecution to establish that Shannon was not an exempt person and that therefore the conviction was supportable only if there was evidence on this issue. With his Honour's view on this point we agree. The prosecution, however, contended that the issue whether Shannon had been excluded by notice from the operation of the Aboriginals Ordinance was the subject matter of an exception proof whereof rested upon the appellant. But, apart from the provisions of sub-s. (2) of s. 141, there are no words of exception in that section. The relevant exception, if there is one, is contained in s. 3A of the Aboriginals Ordinance, which is one of the material provisions to be applied in determining the class of persons in dealings with whom an offence under s. 141 may be committed. The circumstance that this class is variable and indeterminate and that it must be ascertained by considering, in addition to the definitions contained in s. 3 of the Aboriginals Ordinance, the provisions of s. 3A and declarations thereunder, whether by way of exemption or revocation, does not touch the question, for even if terms of s. 3A should be construed as words of exception from the section which precedes it, they do not constitute an exception from the provisions of s. 141 of the Liquor Ordinance. The class of person specified in that section is not defined by reference to the provisions of s. 3 of the Aboriginals Ordinance and thereafter or therein an exception made, but by reference to a narrower class of persons - those to whom the definitions of "aboriginal" or "half-caste" apply. Ex parte Ferguson; Re Alexander [1] is an illustration of a statutory offence described in terms which introduced a true exception and in that case Jordan C.J. concisely stated the relevant principles: "In these cases, a special rule of construction became established at common law. If the offence were defined as consisting of a single concatenation of factors, all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence, and the second was regarded as matter of confession and avoidance available by way of defence" [1] . After referring to the provision made by s. 145A (2) of the Justices Act 1902-1940 N.S.W., his Honour proceeded: "Section 14 of the Commonwealth Crimes Act, 1914 as amended, dealing with persons charged before a Court of summary jurisdiction with an offence against a law of the Commonwealth, is substantially to the same effect. A substantially identical provision was contained in the English Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 24, and it was explained by Blackburn J., in Roberts v. Humphreys [2] that it was pointed against decisions of the Court of Common Pleas under Jervis' Act (11 and 12 Vict. c. 43), and made it incumbent on the defendant to prove any exception in his favour. In my opinion, what is meant by s. 14 of the Commonwealth Crimes Act, 1914, is that, as a matter of evidence, it is for the defendant to prove any exception, whether it be associated with or separate from the description of the offence, and that, as a matter of pleading, it is unnecessary for the prosecutor to specify or negative it, but if he does, it is unnecessary for him to give any proof in relation to it: Bell v. Hyde [3] . It is, of course, in every case a question of construction whether any particular words are words of exception" [4] . Barritt v. Baker [5] is an illustration of an offence created by a provision which contained a negative element as one of the essential ingredients of the offence and not as an exception. In dealing with the point Fullagar J. referred to s. 214 of the Justices Act 1928 Vict. and proceeded: "The history and purpose of this section are explained in Roberts v. Humphreys [6] , and it has been discussed in Victoria notably in Shillinglaw v. Roberts [7] ; Donoghue v. Terry [8] ; Bell v. Hyde [9] ; De La Rue v. Matthews [10] . The section is expressly made applicable "whether the exception, etc., does or does not accompany in the same section the description of the offence". Thus there need not be, in order to attract the operation of the section, a description of the offence followed by an express and separate statement of the exception. So, in Shillinglaw v. Roberts [1] the charge was laid under a section which ran in this form: "Every person other than a legally qualified medical practitioner or a registered pharmaceutical chemist who shall sell any poison shall" be guilty of an offence. It was held that the burden lay upon the person charged of proving that he was a medical practitioner or a chemist. On the true construction of the Act there is a general prohibition of the selling of poisons, and two classes of persons were exempted; the person charged is required by sec. 214 to prove, if he can, that he is within one of the exempted classes. But the section will not, in my opinion, operate to relieve the prosecutor from proving any fact which is an essential element in the specification of the prohibited act. So in Donoghue v. Terry [2] the statute in question made it an offence to "use a motor car without the consent of the owner". There was no general prohibition subject to an exception; the absence of the owner's consent was an essential element in the specification of the prohibited act, and Lowe J. held that it must be proved by the prosecution. In the present case the prohibited act is specified (to put it shortly) as "betting in a street". The place is an essential element in the specification of the offence, and the prosecution must prove not merely the making of a bet but the making of a bet in a street. The word "street" is defined in an "extensive" definition, in which words of exception occur. A place is a street if it is enclosed or unenclosed land other than a race-course. But the prosecution must prove that the place is a street, and the prosecution fails to prove this unless it proves that the place comes within the definition. And it does not prove that the place comes within the definition unless it proves not merely that it was enclosed or unenclosed land, but also that it was not a race-course. As I have said, I do not think it was disputed here that the evidence failed to establish that the place was not a race-course within the statutory meaning of that word. And, in my opinion, the justices were right in holding that, unless the evidence established that, the prosecution failed. It was argued with considerable force that this view in this case reduced the whole question of the application of sec. 214 to a matter of form rather than substance. It was said that the substantial effect of the legislation was to enact that any person who bets on any land other than a race-course should be guilty of an offence, and that, if the legislation had taken that form, it must have been held that betting on a race-course was an exception within the meaning of sec. 214. But it seems to me that the question must often turn on the form of the legislation. The problem is not a problem of formal logic. The Court is not to undertake the task of classification and to decide what is the logical statement of the rule and the logical statement of the exception. Its task is purely and simply one of statutory construction. It has only to say what are the elements which the Legislature has specified as the prima facie ingredients of the offence. When it has determined, as a matter of construction, what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution. The solution of the logical problem of the classification of things is governed by logical considerations, and logical considerations will determine what is to be stated as a rule and is to be stated as an exception. But the Legislature may formulate its rule or its rule and exception as it pleases. It might, for example, provide that any person who made a bet in a city, town or borough should be guilty of an offence. Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an offence. The substance might be precisely the same, but it might well be held that sec. 214 applied to the latter case but not to the former. This would be because the essential elements in the specification of the offence are differently stated in each case. Here the Legislature has indicated that what it requires to be proved is the making of a bet in a street. And that is not proved unless evidence is adduced to warrant the conclusion that the place is beyond reasonable doubt a street within the statutory definition. It is immaterial, I think, that that definition involves a negative" [1] . We find ourselves in complete accord with the observations contained in these two passages, and applying the principles therein referred to, it follows that the issue whether Shannon was an "unexempt person" was not the subject matter of an exception, but was one of the ingredients of the offence.

(1944) 45 S.R. (N.S.W.) 64; 62 W.N. 15. 2. (1944) 45 S.R. (N.S.W.), at pp. 66, 67; 62 W.N., at p. 16. 3. (1873) L.R. 8 Q.B. 483, at p. 489. 4. (1939) V.L.R. 300, at pp. 307, 308. 5. (1944) 45 S.R. (N.S.W.), at p. 68; 62 W.N., at p. 17. 6. (1948) V.L.R. 491. 7. (1873) L.R. 8 Q.B. 483. 8. (1891) 17 V.L.R. 136. 9. (1939) V.L.R. 165. 10. (1939) V.L.R. 300. 11. (1945) V.L.R. 275. 12. (1891) 17 V.L.R. 136. 13. (1939) V.L.R. 165. 14. (1948) V.L.R., at pp. 494, 495.

It was, however, argued by the respondent that there was evidence before the magistrate that Shannon was not a person concerning whom a notice under s. 3A (1) had been given. In particular, it was contended that the defendant had, at the very least, inferentially admitted this to be so. The evidence shows that when the police officer entered the hotel after the sale had been made, he asked the defendant if he knew Shannon was unexempt. To this the defendant replied that he was sure Shannon was exempt whereupon the police officer said that as far as he knew Shannon was unexempt. Reference was then made to several lists containing the names of some five hundred exempt persons which had been supplied to the hotel some considerable time before by another police officer. The defendant said that he was sure that Shannon's name was on these lists, but, after checking them with the police officer, he was unable to find Shannon's name. Nevertheless, he still protested that he had believed Shannon to be exempt and thereafter the issue of his belief in the matter came to the forefront in the subsequent proceedings. It was contended that after it was discovered that Shannon's name did not appear on these lists, the defendant was no longer prepared to assert that Shannon was an exempt person, but merely to maintain that he had believed this to be so. In dealing with this aspect of the matter the learned judge on appeal said that he could not help but suspect that if Shannon had in fact been exempt at the relevant time, an attempt to prove that fact at the hearing of the appeal would have been made. But his Honour went on to say that, while he did not think that he could draw any adverse inference against the defendant arising out of the non-production of such evidence at the hearing of the appeal, he considered that the failure to call such evidence upon the trial of the complaint might however be relevant. We are unable to see the relevance of this circumstance. If it was for the prosecution to establish that Shannon fell within the class of persons specified by s. 141, the burden of proof could not be discharged by evidence which merely went to show that after consulting the available lists, the defendant was or might have been prepared to abandon his former belief. Nor, could the circumstance that he was prepared to accept the statement made, with some apparent doubt, by the police officer, that "as far as he knew" Shannon was unexempt, dispose of the necessity of proving this necessary ingredient by appropriate evidence. The learned judge on appeal took the view that after the defendant had consulted the lists "he acquiesced in the position that Shannon was not exempt". We do not think this view is open on the evidence, but, even if an acquiescence in the sense of an admission should be inferred, it would only constitute an admission that Shannon's name was not on the lists which had been consulted, and it is clear that, even if the lists themselves had been admitted in evidence without objection, they would not, on any view, have established that Shannon was not exempt at the relevant time.

On this point one further aspect of the evidence needs to be examined. In the cross examination of Shannon, which appears in narrative form, there appears the following passage: - "I have been before the court a lot of times for drinking and have been sent to Fanny Bay quite often. I have been going into hotels round Darwin quite regularly. I have about a dozen convictions for drinking and supplying. I did not let anyone know that I am not supposed to be in hotels". This statement, it is claimed, constitutes evidence that Shannon was not an exempt person at the relevant time, but we can give it no real meaning beyond an assent by Shannon to the proposition that he did not hold himself out as a person who was not exempt. This being so, the evidence does not tend to establish that he was not, in fact, exempt. Accordingly, we are of the opinion the charge against the defendant was not proved and that the applicant should have been discharged.

We should add that we are also disposed to think that the applicant should succeed on the other branch of the case. The magistrate and the learned judge on appeal were satisfied affirmatively that the applicant honestly believed that Shannon was an exempt person. The former does not appear to have addressed his mind to the reasonableness of this belief, and the latter, whilst of the opinion that the defence of honest belief on reasonable grounds was open, took the view that the belief was not based on reasonable grounds. We agree with the learned judge that this defence was open, notwithstanding that it was unnecessary on the form of s. 141 for the prosecution to establish in the course of its case that at the time of the sale the defendant knew that Shannon was not an exempt person. Lack of such knowledge is not, of course, equivalent to an honest belief to the contrary, and Sherras v. De Rutzen [1] is a classic illustration of this proposition. In that case, although it was not incumbent upon the prosecution either to allege or prove knowledge on the part of the defendant that the police officer with whom he had dealt was on duty at the relevant time, the view was taken that the defendant might exculpate himself by proof that he honestly believed on reasonable grounds that the officer was not on duty. As the present Chief Justice said in Proudman v. Dayman [2] : - "It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence". After discussing the matters which may properly be considered in determining whether the presumption that the rule, as stated, applies to statutory offences, his Honour proceeded: - "There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also" [1] . From these observations it is clear that the mere circumstance that guilty knowledge is not an ingredient of a particular offence does not necessarily mean that the defence of honest mistake on reasonable grounds is not open.

(1895) 1 Q.B. 918. 2. (1941) 67 C.L.R. 536, at p. 540. 3. (1941) 67 C.L.R., at pp. 540, 541.

Upon a consideration of s. 141, we are of the opinion that such a defence has not been excluded by the terms of that section. The obvious purpose of the section may tend at first sight to support the contrary view, but when it is found that the section relates not only to the sale of liquor but also to the giving or supply of it, that it is directed not only to publicans but also to any person in the Northern Territory and that the class of person in relation to whom the offence may be committed constituted, at the date of the enactment, a comparatively large and yet indeterminate and variable class, there cannot be attributed to the section an intention to exclude the defence of honest belief based on reasonable grounds. This view is reinforced by the fact that the new section, which differs so substantially in operation from that which it replaced, prescribes stringent penalties which cannot, according to the express terms of the section, be reduced or mitigated in any circumstances.

The learned judge, after much reflection, reached the conclusion that the belief held by the applicant was not based on reasonable grounds. He says that, "in the long run, the grounds of the appellant's belief were that Shannon was a more or less regular customer of the Parap Hotel and was there treated by the appellant and others engaged in serving liquor as a half-caste who had been exempted, the reason for so treating him being that the appellant believed he had seen Shannon's name on a list of exempt persons ". We do not think that this is an accurate statement of the ground advanced by the appellant for his belief that Shannon was an exempt person. It is true that the appellant, in his written statement, agreed with the police officer that he had said at the hotel that he thought he had recollected that he had seen Shannon's name on a list, and that he was so certain that he had seen his name on one of the lists that he went with the police officer to examine them. But the lists came into prominence at this stage not as the basis of the appellant's belief but as documents which though not necessarily complete, might have established that Shannon was, in fact, an exempt person. It is a strange thing that if a belief that Shannon's name was on the lists was the substantial ground for the appellant's belief that he was an exempt person, he did not swear to this at any stage of his evidence. Indeed, at no stage of his evidence did he say that he believed he had seen Shannon's name on the list, so that if such a belief was the ground of the defence of honest belief on reasonable grounds there was no evidence to establish it. The defendant did, however, say that after he was asked by the police officer if he knew whether Shannon was an unexempt person, he replied that he was sure he was not, and then said "we will go and have a look at my list". They then checked through the lists which were available at the hotel and failed to find Shannon's name. Even if the appellant had sworn that he believed he had seen Shannon's name on one of the lists, it is difficult to see how, as the learned judge on appeal appears to have thought, this belief could have constituted any reason why over a period of years not only the appellant, but also other persons had served Shannon with liquor in the Parap Hotel. There is, indeed, no evidence that this was so, and the finding that this was the reason would not be supportable on the facts as they appear in the transcript. Moreover, such a finding would in no way dispose of the evidence of the appellant, who appears to have been acceptable as a witness, that he had over a period of years seen Shannon at other hotels in Darwin where he appeared to have been drinking. If, as appears to have been the case, Shannon frequented hotels in Darwin over a period of years and there purchased and consumed liquor openly, the appellant may well have had reasonable grounds for his belief that Shannon was an exempt person. There is evidence that, in fact, Shannon did obtain liquor over a long period openly at different hotels and it would not be unreasonable for the appellant to assume that those concerned were acting lawfully. In these circumstances, we are of the opinion that there is sufficient evidence that the belief which the appellant was held both by the magistrate and the learned judge on appeal to have entertained was based on reasonable grounds.

For these reasons leave to appeal should be granted, the appeal allowed and the conviction quashed.

I agree with the judgment of the Chief Justice and I have nothing to add.

I agree that the appeal should be allowed, for the reasons stated by the Chief Justice.

High Court of Australia Dixon C.J. Williams, Fullagar, Kitto and Taylor JJ. Dowling v Bowie [1952] HCA 63

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