testator who died before that day, the beneficial interest in any
land or in the income therefrom is for the time being shared among a number of persons, all of whom are relatives of the settlor or testator by blood, marriage, or adoption, in such a way that they are taxable as joint owners under this Act, then, for the purpose of their joint assessment as such joint owners, there may be deducted from the unimproved value of the land, instead of the sum of £5,000 as provided by paragraph (b) of sub-sec. 2 of sec. 11 of this Act, the aggregate of the following sums, namely:- In respect of each original share in the land under the settlement or will-(a) the sum of £5,000, or (b) the sum which bears the same proportion to the unimproved value of the land as the share bears to the whole, whichever is the less." The term "original share in the land" is defined to mean "the share" (the word "the" appears to be redundant) ' of one of the persons specified in the settlement or will as entitled to the first life or greater interest thereunder in the land or the income therefrom, or to the first such interest in remainder after a life interest of the wife or husband of the settlor or testator."
In the present case the appellants are trustees for nine persons who are joint owners of the estate. The question is whether those nine persons are joint owners of original shares in the land within the meaning of the definition. The testator gave the land in question for the benefit of his daughter for life with remainder to those nine persons, who are her children, in equal shares. Can they say that they are holders of original shares in the land Are they "persons specified in the settlement or will as entitled to the first life or greater interest ? ? Of course they are not. Are they persons entitled ' to the first such interest in remainder after a life interest of the wife or husband of the testator": The answer to that is, No. They are, therefore, not within the exemption, but within the general rule as to joint owners; and there is no more to be said about it.
BARTON J. I am of the same opinion.
ISAACS J. I agree, and will only add one or two words. Sub- sec. 8 of sec. 38 defines "original share in the land " as being,
first, " the share of one of the persons specified in the as entitled to the first life or greater interest thereunder in the land or the income therefrom." That might be an estate in fee held by several persons jointly. The next is the share of one of the persons specified in the will as entitled "to the first such interest in remainder after a life interest of the wife or husband of…
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.
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Details
AGLC
Brown v The King [1913] HCA 70
Case
[1913] HCA 70
Decision Date
CaseChat Overview and Summary
The case of *Brown v The King* concerned an appeal from the Supreme Court of New South Wales to the High Court of Australia. The appeal arose from a criminal trial where the appellant, Thomas Edwin Brown, was convicted of murder. The central dispute revolved around alleged misdirections by the trial judge and the admissibility of certain evidence.
The legal issues before the High Court included whether the trial judge erred in disallowing a question regarding a statement made by a witness to the deceased shortly after the fatal injury, whether the accused could be cross-examined on a statement made under section 405 of the *Crimes Act 1900* (NSW) after giving sworn evidence under section 407, the correctness of the trial judge's direction to the jury on the meaning of reasonable doubt, and whether the judge had wrongly instructed the jury that they could only return a verdict of guilty or not guilty of murder.
The High Court, in allowing the appeal, found that the trial judge had misdirected the jury by stating they could not return a verdict other than guilty or not guilty of murder. The Court held that under section 23(2) of the *Crimes Act 1900* (NSW), a jury on a murder trial is entitled to acquit of murder and find the accused guilty of manslaughter if the act causing death does not amount to murder but does amount to manslaughter. The Court also indicated that a direction defining reasonable doubt as one that would influence a person in the ordinary affairs of life was a misdirection, and that statements made to the deceased shortly after the infliction of a mortal wound might be admissible as part of the res gestae if substantially contemporaneous. The Court determined that once an accused person gives sworn evidence, they are subject to cross-examination, with the sole limitation being the prohibition on questioning their previous character or antecedents without leave, as stipulated in section 407(1)(b) of the *Crimes Act 1900* (NSW).
The High Court reversed the decision of the Supreme Court of New South Wales and ordered a new trial.