Scott v Cawsey [1907] HCA 80;

Scott v Cawsey [1907] HCA 80; - HCA 1907 case summary — Zoe

[20]

As to the main question in this case, that is whether the appellant is liable to be penalised as keeper of a disorderly house within the meaning of the Sunday Observance Act 1780 , our duty, looking the Statute in the face, is to determine, (1) whether, at the time he is alleged to have incurred such a liability, he was the keeper of a "house, room, or other place" which was during any part of Sunday opened or used for public entertainment or amusement, and (2) whether persons were admitted to that "house, room, or other place" by "the payment of money, or by tickets sold for money." Now, I have no doubt on either of these queries, answering the first in the affirmative and the second in the negative. The Statute clearly requires that the "house, room, or other place, which shall be opened or used" for the purposes described must be the same house, room, or place to which the public were admitted (to be amused or entertained) on "the payment of money, or by tickets sold for money." That was not so in this instance. The entertainment was beyond question carried on in the large hall, being Fitzgerald's Circus Building, or being in the Circus Building; I do not care which. No one was excluded - that is, all were admitted - to that house or room free. But, as the appellant admitted to Sergeant McManamny, there was a part reserved with chairs (and carpet covered seats) and the tenants, one of whom is the appellant, had men standing at the entrance for the purpose of collecting a small sum from people to go in (i.e. to these chairs and seats) and, as he phrased it, "have comfort." The rest of the audience had to stand or to sit elsewhere. The part reserved was within the large hall, and was reached through the same entrance by which all were admitted, it was lightly railed off and had an opening, but no gate or bar thereat. But the people who paid for this extra privilege of a seat - this "comfort," - had been admitted to hear and see the whole entertainment without charge, and, therefore, before they engaged seats they were on the same footing as the rest of the audience. They could stand and see and hear everything without paying anything. The place in which the entertainment took place was the place of which the appellant was undoubtedly a "keeper," but no charge was made for admission to that place. That is the state of facts established beyond all doubt by the evidence, and Chomley J. does not appear to have found otherwise; but he has come to the conclusion that the reserved portion was a "place" within the meaning of the Act, and as money was charged for admission to it, he held the defendant, now the appellant, liable.

[25]

But it is not pretended in these days that this rule should be so applied that cases, which would be ordinarily included within the meaning of the terms used, should be placed outside it by a forced or strained construction. To use the words of the Judicial Committee of the Privy Council in Dyke v. Elliott; The Gauntlet [9]: - "No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip or a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of." To my thinking, the plain meaning of the words does not render the appellant liable. But if I had any real doubt as to them, I should be guided by the very plain sense of the words of Lord Esher, then Brett J., when in Dickenson v. Fletcher [10], he said: - "Those who contend that a penalty may be inflicted, must show that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty." It is as true now as when Blackstone wrote it, that "The law of England does not allow of offences by construction." It has been urged that the interpretation endorsed by the high authority of Lord Collins leads or will lead to evasion of the Act. What then is meant by an evasion? Chitty L.J. in Attorney-General v. Beech [11] said, in a judgment concurring with that of A. L. Smith L.J., Collins L.J. concurring with both: - "Much was said upon opening the door to evasion. Would these be cases of evasion? Certainly not. Indeed, the whole argument on evasion of the Act is fallacious. The case either falls within the Act or it does not. If it does not, there is no such thing as an evasion." That is much the same thing as Jessel M.R. said in Yorkshire Railway Wagon Co. v. Maclure [12] thirteen years earlier: - "It seems to me our decision in this case will by no means encourage people to evade the Act of Parliament, or enable them to evade it, that is, to do anything which is either expressly or impliedly prohibited by the Act of Parliament."

[31]

Leaving out the reference to Sunday public debates, consideration of which is not material in this case, the following circumstances must concur. The "house, room, or other place" must be opened or used on Sunday for public entertainment or amusement, and there must be a charge for admission to the house, room, or place, either in the shape of direct payment of money or presentation of tickets sold for money. The legislature might, if it thought fit, have declared that any charge for the viewing or listening to or being present at the entertainment would have constituted the house, room, or place a disorderly house or place, but they have not done that. They have declared in very clear language that the circumstance which shall constitute a house, room, or place opened or used on Sunday for public entertainment or amusement a disorderly house or place is the charge for admission into the house, room, or place which is then so opened and used. If it is once established that the public are admitted into the house, room, or place free of charge the action must fail. There is nothing in the Act to prevent the managers of the entertainment from making a charge to any member of the public after his free admission into the house, room, or place for special advantages in the way of more comfortable or more exclusive seats or a better view of the performance. As to this, Williams v. Wright [14] is directly in point. That was an action against the printer and publisher of the "Times" for penalties under the same Act. The offence charged was under sec. 3 for advertising a Sunday evening concert in the Queen's Hall, London. The defendant pleaded that the advertisement was not the advertisement of a public entertainment or amusement within the meaning of the Act, alleging that it was not the advertisement of a public entertainment or amusement to which persons were admitted by the payment of money. It became necessary, therefore, to establish that there was a charge for admission to the entertainment. The plaintiff proved that he had gone to the concert and had paid 1/- for a ticket. The ticket had on it: -

[60]

This is in perfect accordance with the statement of the Supreme Court of the United States in Johnson v. Southern Pacific Co. [21], which I cite because it so well represents my own views. One question was whether a locomotive engine was a "car" within the meaning of a penal Statute. Fuller C.J., in delivering the unanimous judgment of the Court, said: - "It is settled that "though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal as well as other Statutes; and they are not to be construed so strictly as to defeat the obvious intention of the legislature". United States v. Lacher [22]." The learned Chief Justice quotes a passage from a judgment of Mr. Justice Story in United States v. Winn [23], referring to the rule that penal Statutes are to be construed strictly, in which that learned Judge said: - "I agree to that rule in its true and sober sense; and that is, that penal Statutes are not to be enlarged by implication, or extended to cases not obviously within their words and purport. But where the words are general, and include various classes of persons, I know of no authority, which would justify the Court in restricting them to one class, or in giving them the narrowest interpretation, where the mischief to be redressed by the Statute is equally applicable to all of them. And where a word is used in a Statute, which has various known significations, I know of no rule, that requires the Court to adopt one in preference to another, simply because it is more restrained, if the objects of the Statute equally apply to the largest and broadest sense of the word. In short, it appears to me, that the proper course in all these cases, is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner, the apparent policy and objects of the legislature." Applying those principles of interpretation to this Act, the defendant has, in my opinion, committed a breach of the first section, and the plaintiff is entitled to hold his judgment as to the penalties for the concert.

[92]

The differentiating fact which makes a lawful entertainment unlawful, as regards any definite place, is payment for admission. It is quite true that the entertainers are not in the reserve, but on the stage; but I cannot regard it as being any the less "used for public entertainment" merely because the music is rendered, and the biograph is worked, on the stage opposite; or because other people not in the reserve are also entertained (though not so satisfactorily). The public are entertained in the reserve, and for money; and it makes no matter that others of the public are entertained in other places in the hall without money. I quite accept the position that the use of one place in this huge hall for entertainment is legal, and that the use of another place is illegal - the distinction lying in the payment for admission to the latter place. I might have had more difficulty in coming to this conclusion if the words of the Act were "used for a public entertainment," implying that the entertainment must be one and indivisible. But the phrasing is simply "used for public entertainment." Here I find the fallacy of the appellant's argument. He says there is no evidence that the reserve was used for "the" entertainment. Quite true, in one sense; but the Act does not require such a fact to be proved. It requires proof merely that the reserve was used for entertainment. If the defendant's contention is right, of course the Act becomes practically a dead letter without any action on the part of the Parliament. Halls and theatres may be opened for entertainments and amusements on Sundays; and those who hold the entertainment will escape penalties by simply leaving a portion of the hall or theatre free of charge. Mr. Schutt, for the defendant, admits that this is the result. If the defendant's contention succeed, a building such as a theatre may be opened, and a performance in the nature of a concert or a ballet-dance may take place on Sunday, provided only that no charge be made for admission (say) to a portion of the "gods."

[94]

I adopt the words of the Earl of Halsbury L.C., in an analogous case, Powell v. Kempton Park Racecourse Co. [32]. In that case, the question was as to a "place ... open kept or used" for betting; but, paraphrasing his Lordship's words so as to meet the present case, I should say that, for the purposes of the Act now in question, every place which is sufficiently definite, and in which the public can be entertained, would satisfy the words of the Act. There is no need to introduce any refinement or subtlety into the crude language of this crude enactment. I feel strongly that men trained in law are ever under a tendency to over-subtlety in matters of verbal interpretation, and that it is necessary for us, again and again, to revert to the ordinary lay attitude. There are no technical associations with this Act. The word "place" is as wide as any word that could be used; and when it is used in the collocation "house, room, or other place ... used for public entertainment," any layman would, I think, conclude that for the purposes of the section it is sufficient if there be a house, or a room, or a part of a hall. Probably, the place in a room or hall would have to be of considerable size; for, otherwise, the public could not be entertained there, or any considerable number of people. Mr. Pigott has urged that the only meaning of "place" in this context is a part of a room. But, without adopting the argument in this extreme form, I think a portion of a room or hall was probably the thing primarily before the minds of those who framed the section. As for the contention that, on the plaintiff's view, every row of seats could be considered as a "place," and there could be a score of "places," some legal and some illegal, within the same room, it does not impress my mind. There may be more difficulty in dealing with the case of a charge for admission to very small portions of a room. But that difficulty does not apply where the reserve for which charge is made takes up, as here, about two-fifths of the room. It is an unpleasant thing to find that one's house or garden or enclosure may possibly be called "a disorderly house or place" - with all the nasty associations which such an expression evokes - but such is the language of the legislature, and it is not for us to alter it. There is nothing that I can find in the Act to indicate that a place cannot be "used for public entertainment" unless both entertainers and entertained are present in that place. The stage of a theatre is usually excluded to the audience; and it could hardly be meant to allow tickets to be issued for the stalls, for the dress circle, for the family circle, for the "gods," simply because the entertainers are not in these places, but on the stage. A man with the lease of a cricket ground may use it for the entertainment of the public by sending up fireworks outside the enclosure, and admitting the public within the enclosure. It is unnecessary to consider the case of a man allowing the public to enter his garden for payment, in order to hear music provided by others outside the garden; for in this case before us the same man provides both the music and the enclosure in which to hear it.

[95]

As for the case of Williams v. Wright [33] the report is unsatisfactory. There is no report of it in the Law Reports or in the Law Journal or in the Law Times . But, so far as I can gather from the report that we have, Mr. Justice Collins was not asked to decide whether a reserved portion of a hall, for admittance to which reserved portion a charge is made, could be treated as a "place" within the meaning of the Act. The charge was made under a different section of the Act - sec. 3 - against the publisher of the Times newspaper for publishing an advertisement of a public entertainment "to which persons are to be admitted by the payment of money." The word "place" is not used in sec. 3; and therefore no question could arise as to the meaning of the word "place" in that case. The ticket said "Admission free, reserved seats 1/-;" and Collins J. came to the conclusion of fact that the charge was for the seat, not for the admission to the entertainment. "The Statute spoke of admission, not to a seat, but to an entertainment." The learned Judge dealt only with two alternatives - admission to a seat and admission to an entertainment. He had not to deal with the third case - admission to a reserve. The plaintiff was not represented by counsel, and the decision turned on the charge being made merely for the seat - just as a charge might be made for the use of an opera glass. There was nothing, in the facts as found, to show any charge for a reserved area. I cannot attach much importance to the statement made in the Encyclop?dia of the Laws of England , "Sunday" page 36. The statement is that the Act is usually evaded e.g., at the Albert Hall, and Queen's Hall, by giving free admission, and charging for "reserved seats." There is not in these words, I think, any clear indication that a definite portion of the hall is set apart for those who pay; and, even if that is the practice, the practice has not been tested in the law Courts. It is also gravely urged that Royalty has been present at such entertainments. This alleged fact does not appear in evidence; and we should not, I presume, take judicial notice of it. Rather than admit the possibility of His Majesty doing even so much wrong as would be involved in helping people to break one of his own laws, it might be proper to presume that, as, in the drama of Euripides, the real Helen was not carried away to Troy, but some wraith or simulacrum of the lady, so the King himself was not present in propriâ personâ at the Queen's Hall on a Sunday. In any case, as Lord Coke informed His Majesty King James the First, the King does not expound the law personally, but through the mouths of his faithful servants the Judges [34]. Baxter v. Langley [35] shows that the point raised by the defendant here, as to the meaning of "place," was raised by the defendant there, amongst other things; but the Court decided in defendant's favour merely on the ground that there was no "entertainment" within the Act, without saying anything against a reserve being a "place." The Judges in England enforce the penalties with regret, and do not hesitate to say so. (See Terry v. Brighton Aquarium Co. ) [36]; and immediately after, and probably in consequence of the Brighton Aquarium Case , the British Parliament specifically authorized the Government to remit the penalties under this Act (38 & 39 Vict. c. 80). The Government of Victoria has also general power to remit such penalties: Public Moneys Act 1890 , sec. 4.

[96]

As for the penalty of £50 for advertising on a screen during the performance, I had much doubt; but I think that it was rightly imposed. Sec. 3 of the Act provides that "any person advertising ... any public entertainment or amusement ... on the Lord's day to which persons are to be admitted by the payment of money ... shall ... forfeit the sum of £50." During the performance, there were thrown on a screen these words: - "Our patrons are respectfully notified that we shall continue these concerts every Sunday night with the same completeness as hitherto but no advertisement will be inserted in the papers. Kindly inform your friends." It is urged that there is nothing in this notice to indicate that payment will be expected for admission. But I cannot find anything in the Act requiring that payment should be actually mentioned in the advertisements. The advertising may be, as in the present case, the act of the entertainer himself, and effected at an entertainment for which payment has been made; and when he announces to his "patrons" that he will "continue these concerts every Sunday night" the audience knows, without being told, that they are to come on the same terms. The words of sec. 3, "to which persons are to be admitted by the payment of money" mean, as in sec. 1, that as a fact persons are to be admitted by the payment of money. I am strongly opposed to improving or altering an Act by implying words that are not there, unless the words are necessarily implied; and the Act does not say that the advertisements must state that there is to be a payment. It is enough that payment is in fact to be made; and, as for the argument that on this construction a newspaper publisher would be rendered liable to the penalty, although he knew nothing about payment being required, I am of opinion that he would not be liable if he did not know about the payment. For criminal offences there must be guilty knowledge - knowledge here that payment will be required unless the Act clearly indicates the contrary. In Reg. v. Sleep [37] a Statute made it an offence to be found in the possession of naval stores marked with the broad arrow. The jury found that there was not sufficient evidence to show that the prisoner knew the stores to be so marked, and the conviction was held bad. (See also Anonymous [38]; Hearne v. Garton [39]). Knowledge of the relevant fact is necessarily implied in Acts creating crimes, unless expressly negatived. I see no reason for differing from the additional view put by Isaacs J., to the effect that, if a charge be made for admission so far as regards a prescribed portion of a room, it is made for admission to the room. But I prefer to rest on the simpler aspect of the case.

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 (13 September 1907)

Parties

Legislation Cited (2)

Cases Cited (1)