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Berwin v Donohoe

Berwin v Donohoe

Case [1915] HCA 79 14 December 1915

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Criminal Law

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21 CLR 1

[ ] BERWIN DONOHOE A. BERWIN &COMPANY LIMITED DONOHOE

ON APPEAL FROM A COURT OF PETTY SESSIONS OF NEW SOUTH Trading with the Enemy-Attempt- and abetting-Evidence-Consent of

Attorney-General to prosecution--Trading with the Enemy Act 1914 (No. 9 of 1914), secs. 3, 6-Proclamation of 9th September 1914, clause 5-Acts Inter- Sept. 3; Nov. pretation Act 1904 (No. 1 of 1904), sec. 8.

B., the managing director of a company registered in New South Wales, on 25th September 1914 as such director wrote a letter to Amsinck &Co., their business correspondents in New York, as follows :-" " Mr. H. T. Moors " (an

21 CLR 2

American subject) " of Moors' Samoan Trading &Plantations Co. Ltd. is at present in Sydney, and on his arrival here found that 215 bags of cocoa which he had consigned to H. C. Bock " (a German subject who carried on business at Hamburg in Germany) 'had not left Sydney. It is of course impossible to get this cargo away to Germany, and Mr. Moors has therefore consigned this parcel to Messrs. Atkins Kroll &Co., San Francisco. We thought that if there was a good opening for a first class cocoa in New York you might possibly assist in the disposal of same, and it may be advisable for you to get into touch with Messrs. Atkins Kroll &Co. for the purpose of getting samples of this and following lots. Mr. Moors does not know how to communicate with H. C. Bock to tell him of the disposal of the cocoa, and we also think it better to advise you as you would know the safest way of advising Mr. Bock as to the proceeds which are intended for his account and will be held by Atkins Kroll &Co. pending instructions from H. C. Bock." The evidence bore out the statements in this letter. B. also assisted Moors to obtain shipment of the particular lot of cocoa to San Francisco. Moors had told B. that he owed Bock money and intended to leave the proceeds of the cocoa in America at the disposal of Bock. On the several prosecutions of B. and the company of which he was managing director, for that on 25th September 1914 they did, at Sydney, in connection with the shipping of certain goods to San Francisco, to the intent and for the purpose that the proceeds of the sale thereof should during the continuance of the war be placed to the credit of Bock of Hamburg in Germany, attempt to trade with the enemy, the defen- dants were convicted by a Stipendiary Magistrate. On appeal to the High

Held, by Griffith C.J. and Gavan Duffy and Rich JJ. (Isaacs, Higgins and Powers JJ. dissenting), that there was no evidence of an attempt by Moors to trade with the enemy by sending the cocoa to the San Francisco firm which either B. or the company aided or abetted, or of an independent attempt on the part of B.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berwin v Donohoe

Details

AGLC: Berwin v Donohoe [1915] HCA 79
Case: [1915] HCA 79
Decision Date: 14 December 1915

CaseChat Overview and Summary

Berwin, the managing director of a New South Wales company, was convicted, along with his company, of attempting to trade with the enemy. The prosecution alleged that on 25th September 1914, in connection with the shipment of cocoa beans to San Francisco, the defendants intended for the proceeds of the sale to be credited to H. C. Bock, a German subject in Hamburg. The convictions were made by a Stipendiary Magistrate, and the defendants appealed to the High Court of Australia.

The central legal issue before the High Court was whether there was sufficient evidence to support the convictions for attempting to trade with the enemy. Specifically, the court had to determine if the actions of Berwin and his company, in facilitating the shipment of cocoa beans and communicating with business correspondents regarding the proceeds, constituted an attempt to trade with an enemy under the Trading with the Enemy Act 1914 and relevant Proclamations. A secondary issue concerned the sufficiency of the Attorney-General's consent to prosecute.

A majority of the High Court, comprising Griffith C.J., Gavan Duffy and Rich JJ., held that there was no evidence of an attempt by the individual, Moors, to trade with the enemy that Berwin or his company aided or abetted, nor was there evidence of an independent attempt by Berwin or the company. They reasoned that the actions taken, including a neutral individual arranging for the payment of a debt to an enemy in a neutral country, did not necessarily amount to an attempt to trade with the enemy. The majority also indicated that if a neutral person uses the postal service to ask their agent in their own country to pay a debt there to an enemy, this would not constitute an attempt to trade with the enemy.

The majority allowed the appeals, finding that there was no evidence upon which the Magistrate could properly convict. Consequently, it was unnecessary for them to rule on the sufficiency of the Attorney-General's consent to prosecute. In contrast, Isaacs, Higgins, and Powers JJ. dissented, with Isaacs J. arguing that any step taken in Australia, by any person, as part of a process that would constitute trading with the enemy if fully carried out, is itself an attempt to trade with the enemy. The dissenting judges also found the Attorney-General's consent to be sufficient.

Orders