Holland v Jones [1917] HCA 26

High Court of Australia|1917-07-01|Before: Putty JJ

ON APPEAL FROM A COURT OF PETTY SESSIONS OF i. VICTORIA.

Var Precautions - Prosecution - Consent of Minister for Defence - Proof - Judicial H. C. ov A.

notice - * Official document" - " Official signature" - Abetting in making 1917.

1916 (No. 10 of 1914 - No. 3 of 1916), sec. 6 - War Precautions Regulations MELBOURNE,

1915 (Statutory Rules 1915, No. 130), regs. 28 (6), 49 - Bvidence Act 1905(No. May 18; 'of 1905), sec. 4, June 13.

Apart from Statute, wherever a fact is so generally known that every ordinary PArtonA:C-J-»

on may be reasonably presumed to be aware of it, a Court judicially ©' Putty JJ. es it, either simpliciter if it is at once satisfied of the fact without more,

r after such information or investigation as it considers reliable and necessary

order to eliminate any reasonable doubt. A Court will, therefore, judicially

who are the Ministers of the Crown and a signature purporting to be

at of a Minister of the Crown and to verify an official document.

na summary prosecution instituted by an officer of the Defence Depart- 'ment for an offence against the War Precautions Act 1914-1916, which by sec. (Ba) is required to be authorized in writing by the Attorney-General or the ter for Defence, in order to prove the authority counsel for the informant ed in evidence the original information in the margin of which were the words " I consent to this prosecution " and a signature of the name of the person who in fact was the Minister for Defence.

'Held, that the document taken as a whole was an " official document " andat the signature was an "official signature," within the meaning of sec. "the Bvidence Act 1905, of which the Court was bound to take judicial OL, XUN, 11

notice, and, therefore, that the authority of the Minister was sufficiently pr ove

Leaflets containing statements likely to prejudice the recruiting o Majesty's Forees were printed by A, and a large number of them were d buted to the public.

Held, that B, who assisted A to print the pamphlets and knew of their bution and was generally closely connected with A, was properly con of the offence of abetting in making such statements created by regs. and 49 of the War Precautions Regulations 1915 (Statutory Rules 1915, 130).

Appxat from a Court of Petty Sessions of Victoria. At the Court of Petty Sessions at Melbourne an information v heard whereby William Percival Jones, a police detective attac' to the Intelligence Branch of the Commonwealth Defence Dey ment, charged that Frederick A. Holland and Norman C. And did, contrary to the War Precautions Act 1914-1916 and the Rx tions thereunder, abet in making statements likely to prej the recruiting of His Majesty's Forces. In order to prove consent of the Minister for Defence as required by sec. 6 (3a) of War Precautions Act 1914-1916, counsel for the informant tende in evidence the original information, upon which there app in the margin the written words "TI consent to this prosecut followed by the written signature "G. F. Pearce," which fact the name of the Minister for Defence. The statements plained of were made in certain leaflets, and the evidence showed tl these leaflets were printed by Anderson and that a large nu m of them had been distributed to the public. Both the defen were convicted, and from the conviction they appealed to the Court by way of order to review, the grounds of appeal D substantially that there was not sufficient or proper evidence 0 written consent to the prosecution, and that there was not sufli or proper evidence that the defendant Holland abetted the mak of statements likely to prejudice the recruiting of His Majesty's Forces. Other material facts are stated in the judgment of Isaacs hereunder.

Magennis, for the appellants. There is no evidence of the con sent in writing of the Minister for Defence. Assuming that judicial

ce is taken of the fact that a certain person is for the time being

ial it must purport on the face of the document to be written s official capacity by the person whose signature it is said to be. Williams v. Silver Peak Mines Ltd. (1). The charge against nd is, in substance, that he distributed the leaflets. But there no evidence of their distribution by him except among the persons wrepared them, whereas it was necessary to show that he took in the distribution to the public.

16 Cohen, for the respondent. The information is an " official 1 ." If ina document to which the official consent of the

fact is the Minister for Defence is appended to a consent, that nt is an " official document " and the signature is an " official

He was entitled to say that he knew ature to be that of the Minister. At common law the

to Ex parte Major (2); Walker v. Jenkins (3) ; Phipson 5th ed., pp. 13, 14.] In order to prove that Holland

y to the making of the statements. The printing is part the statements.

is, in reply, referred to Halsbury's Laws of England, 'vol.

Cur, adv. vult. on A.C.J. My brother Jsaacs will read a judgment in which My brother Gavan Duffy, who is not present, does not

21 C.L.R., 40, at pp. 47, 52. 2) 8 S.R. (N.S.W.), 68. a (e PP. is) 1V.R. (L.), at ) '

Tsaacs J. read the following judgment : - Two points are rai inthis appeal. On behalf of both appellants - Holland and Anders:

it is said the consent of the Minister for Defence to the prosecut was not proved. As to Holland the further contention is made tha there is no evidence that he abetted in " making " the statemen contained in the leaflets which were the subject of the prosecuti

The Police Magistrate arrived at his conclusion that the necessary" consent was established by reading the document in which it said to be contained, and by saying "I am satisfied that the signatur "G. F. Pearce ' following upon the words 'I consent to this prosecu- tion' appearing on the face of the information is the signature G. F. Pearce whom I know to be the Minister for Defence and who signature as such Minister I have seen on many informations whicl

Tt was urged that the Magistrate's personal knowledge out the evidence in the case was legally unavailable, and should not bi regirded, and that without it there was no evidence to prove th consent; and, next, that as the signature "G. F. Pearce" was not accompanied by any form of words purporting to indicate that signature was an official signature the Evidence Act (No. 4 of 1905 sec. 4, did not apply.

In my opinion the contention is not sustainable. It rests upo a misconception of what is meant by " judicial notice." Apart fro the strict rules to which Courts ordinarily adhere when determin controversies between litigants, certain relaxations are recognize and acted on where justice is thereby better served. Dying declara- tions, declarations against interest, and declarations in the co i of duty by persons since deceased, are familiar illustrations. But besides these and similar instances, there are matters of which Court even apart from Statute may require no evidence at a This they do by taking what is called "judicial notice " of the Text-books on evidence make reference to this practice, and giv! precedents. Taylor on Evidence, 10th ed., vol. 1, pp. 3 enumerates a multitude of instances both at common law and statutory. As to executive and judicial officers, it is there stated (p. 15): "The English doctrine on this subject is difficult of definition."

sment the view, and even much of the language, of Greenleaf on nce. At p. 19 of Taylor it is stated that "The Courts will, judicially recognize the political constitution or frame of their Government ; its essential political agents or public officers in its regular administration ; and its essential and regular itical operations and actions. Accordingly, all tribunals notice the heads of departments, and the principal officers of State, her past or present; . . . and, in short" (here quoting from V.C. in Taylor v. Barclay (1) ), "all 'public matters 'h affect the government of the country.'" This has even been <tended to the recognition by the Government of the independence reign peoples : Foster v. Globe Venture Syndicate Ltd. (2).

'he only guiding principle - apart from Statute - as to judicial e which emerges from the various recorded cases, appears to that wherever a fact is so generally known that every ordinary on may be reasonably presumed to be aware of it, the Court ices" it, either simpliciter if it is at once satisfied of the fact hout more, or after such information or investigation as it con- reliable and necessary in order to eliminate any reasonable

basic essential is that the fact is to be of a class that is so lly known as to give rise to the presumption that all persons aware of it. This excludes from the operation of judicial notice are not "general" but "particular" facts, As to " par- ur" facts, even the Judge's own personal knowledge is not to ported into the case: Hurpurshad v. Sheo Dyal (3) and win Bebee v. Busheer Khan (4). To import knowledge of a cular fact in issue would be to import evidence in the strict regarding a matter as to which the Court is supposed to have ledge whatever of its own.

it if the fact is of such " general " character as to give rise to the mption mentioned, then a Judge is justified in " noticing " it. must, however, be fully satisfied of the fact, and must be cautious e that no reasonable doubt exists. To prevent doubt he may

'2Sim., 213, at p. 221. (3) L.R. 3 Ind. App., 259, at p. 286. 2) (1900) 1 Ch., 811. (4) 11 Moo. Ind. App., 213, at p. 221.

heless, the learned author adopts with express acknow- H.C. or A.

seek information in various ways, illustrations of which are in Taylor on Evidence, vol. 1., pp. 21-22. His own knowledge for this purpose, and not as evidence in the real sense, be relied ; as the Magistrate did in the present case. And for this posit authority is, if necessary, found in the judgment of Wills J. in Field (1). It is evident that no exhaustive list can be compil d of things that are open to judicial notice. Ilustrations of tl truism will occur to everyone. That communication is possi by wireless telegraphy is a recent and conspicuous example. Se instances ancient and modern are to be found in Professor Thayei treatise on Lvidence (1898), at pp. 305 and 306.

Applying these observations to the present case, it would be m idle affectation for an Australian Court not to "know " - mor particularly in war time - who is the Minister for Defence. He is. of the Ministers of State for the Commonwealth referred to by 64 of the Constitution. His appointment and public duties matters of universal Australian concern.

In Mighell v. Sultan of Johore (2) the Court accepted as genuit the signature of an official - not a Minister - bit purporting to on behalf of a Minister. That is an d fortiori case, and consequent

if the personality of the Minister is to be judicially noticed, it seem that a signature purporting to be his and to verify an offici document may also be judicially noticed, provided the Court satisfied from the circumstances it is genuine. The act of con in such a case as the present is an official act, the doctrine of R. Verelst (3) is sufficient to establish primd facie that the person act was the proper person to give the consent, and the judicial no taken of a Minister's signature to an official document complet the chain. No doubtit is open to a party to disprove the genuinene s of the signature if he can, and then the Court will not act upon it

The consent in this case incorporates by necessary reference t whole of the charge that is intended to be made, and this reac extenso is plainly an official document, such as is contemplate: sec. 6, sub-sec. 3a, of the War Precautions Act 1914-1916. It com from the possession of the proper official, supposing it to be genuil

(1) 64 L.J.M.C., 158, at p. 160. (2) (1894) 1 Q.B., 149. (3) 3 Camp., 432.

ranch of the Defence Department. His learned counsel, who was cted by the Commonwealth Crown Solicitor, produced the as that of the Minister. There could, consequently, be no nable doubt whatever that tbe consent is an official document,

to the Act, it is partly an extension and partly a modification ecommon law. It extends, or.may by force of an order of the nor-General extend, the number of offices to which the doctrine It also by sec. 4 (c) requires notice to be taken of the person- of the official on the mere production of the judicial or official sument. But in using the term " official signature " or " official ument " the Act does not mean that there must be independent f of the "official" character of either - a course which would oy the efficacy of the enactment : nor does it use any words that the signature or the document must contain any 1 words asserting its official character. If the instrument from its nature or anything contained in it, whether in the or connected with the signature, appears to be of an official iter, and there is nothing to destroy the effect of that appear- there is sufficient to bring it within sec. 4 (c), and that is 1 to establish here that G. F. Pearce is holding the office of for Defence.

as the proper conclusion from the document itself is that ture was appended as an official act, it is to be regarded as signature, and sec. 4 (a) applies. Whatever might have he case as to the signature apart from the Act (see Howell v. s (1) ), it is clear that the Act answers the objection.

| as to Holland's second point. The publication was one 'on the face of it, signed by Holland, and was from its intended for distribution. Holland assisted to print it, niliar with the fact of its almost complete distribution, and erally so closely connected with Anderson that there is ple ground for the inference the Magistrate drew that Holland et in actually making the statements, even interpreting that a (1) 7B. & C., 783.

H.C. or A. in the narrowest way as confined to the actual distribution of | eae pamphlets and assuming the actual distributor is unknown. Horzann 'In my opinion this ground fails also, and the appeal should

Appeal dismissed with costs. Solicitors for the appellants, Loughrey & Douglas.

BLACKHAM AND ANOTHER . . . - .. APPELLANTS DEFENDANTS, AND HAYTHORPE AND ANOTHER 5 . . RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

facts. Rowe The defendants, who were land agents employed by the plaintiff to sell hi

land to the Crown, during the course of their employment acquired the kn ledge that the Crown would in all probability give £5 per acre for the Isaacs, Powers Before the agency was terminated one of the defendants purchased the Sear on his own account for about £2 10s. per acre without disclosing to the plaintiff the fact that there was such a probability. and shortly afterwards sold it the Crown for £5 per acre. :

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)