Berwin v Donohoe

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.