CTHHCA

Zanetti v Hill

[1962] HCA 62

High Court of Australia|1962-07-01|Before: Owen JJ

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Court

High Court of Australia

Decision date

1962-07-01

Before

Owen JJ

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto, Menzies and Owen JJ. Zanetti v Hill [1962] HCA 62

[2]

By s. 65 of the Police Act, 1892-1952 W.A. (55 Vict. 27) (cf. 1954 Vol. 6 Reprinted Statutes) it is provided that 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; there follow ten paragraphs each stating a set of conditions exposing the "person" to the liability imposed by the section. The first of those is the provision under which this case arises. It is as follows: "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." By virtue of ss. 29 and 33 of the Justices Act, 1902-1961 W.A. the reference to a justice must be taken to refer to two justices or a stipendiary magistrate. The nine other paragraphs refer to situations which fall short of some definite or specific single prohibited act which is made the offence but like the first they refer to the manner of life led or the like, to wandering, to begging, to the possession of disguises, to associating with certain undesirable classes of people. It is scarcely necessary to say that this description of legislation is traceable back to Tudor times. Of course there is a very long history extending through periods not like our own: perhaps it is enough to refer to Holdsworth's History of English Law, vol. IV, 2nd ed. (1937) p. 387 et seqq.

[14]

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 [1] ; and although I do not commit myself to everything that was said by Richards J. in Taylor v. Lenthall [2] 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 [3] ), 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 or £50 - 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.

[16]

It is hardly necessary to emphasize, fifty years and more after the decision in Lee Fan v. Dempsey [1] , 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 [2] . 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 [1] ; Ex parte Ferguson; Re Alexander [2] . 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.

[20]

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 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 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 betting ticket had been stolen from him. The appellant said he didn't see how the respondent could afford £10 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 in his possession when arrested on 11th July 1961.

[28]

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: (1) 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 [1] . 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" [2] . 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 [3] ) 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" [4] . 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" [1] .

Zanetti v Hill - [1962] HCA 62 - HCA 1962 case summary — Zoe