New Guinea—Adoption of Queensland Criminal Code—Substitution of New Guinea for Queensland in sedition provisions—New Guinea Act 1920 (Cth), s. 14—Laws Repeal and Adopting Ordinance (New Guinea), s. 17—The Criminal Code (Q.), ss. 44, 46, 52. Criminal Law—Publishing seditious words—Intention to excite disaffection against government of New Guinea—"Advisedly" publish—Evidence—Admissibility—Similar facts—Relevant facts—Evidence of accused's political beliefs inadmissible—New trial—Trial before judge without jury—Wrongful admission of evidence prejudicial to accused—Question determined without reliance on inadmissible evidence—The Criminal Code (Q.), ss. 44, 46, 52.

Decision

April 13.
The COURT delivered the following written judgment: -
This is an application by Brian Leonard Cooper for leave to appeal against his conviction in the Supreme Court of the Territory of Papua and New Guinea on a charge that on or about 15th September 1960 in the Territory of New Guinea he "advisedly spoke and published seditious words". The charge was laid under s. 52 of The Criminal Code of Queensland. The Code was adopted as law in the Territory of New Guinea by the Laws Repeal and Adopting Ordinance 1921 made by the Governor-General under s. 14 of the New Guinea Act 1920 (Cth). This Ordinance was still in force when the Commonwealth Parliament enacted the Papua and New Guinea Act 1949, which provided for an administrative union of the Territory of Papua and the Territory of New Guinea. That Act repealed the New Guinea Act 1920, but, by s. 32, provided in effect that, notwithstanding that repeal, all other laws in force at the commencement of the Act in the Territory of Papua or the Territory of New Guinea or both should continue in force in the Territory of Papua, or the Territory of New Guinea, or both, as the case might be. (at p179)

2. What is logically the first ground of the present application may be dealt with very shortly. It was founded on the absence of any reference to the Territory of New Guinea in the Queensland Code. Section 52 of the Code provides, so far as material, that any person who advisedly publishes seditious words is guilty of a misdemeanour and is liable to imprisonment with hard labour for three years, and, for a second offence, to imprisonment with hard labour for seven years. The expression "seditious words" is defined by s. 46 as meaning "words expressive of a seditious intention". Section 44 provides that an intention to effect any of a number of specified purposes is a seditious intention. The only relevant purpose in the list is "to excite disaffection against the government of Queensland as by law established". The words which formed the subject matter of the indictment had no relation whatever to the government of Queensland. They did, as will be seen, have a relation to the government of New Guinea, but it was said that there was nothing to justify a…

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 Fisher v Hebburn

Details

AGLC: Fisher v Hebburn [1961] HCA 16
Case: [1961] HCA 16
Decision Date: 13 April 1961

CaseChat Overview and Summary

The High Court of Australia considered an appeal in *Fisher v Hebburn*, concerning a dispute between the appellant, Fisher, and the respondent, Hebburn. The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the Court was whether the respondent, as the driver of a motor vehicle, owed a duty of care to the appellant, a passenger in that vehicle, and if so, whether that duty had been breached, thereby causing the appellant's injuries. The Court was required to determine the applicable standard of care for a driver towards their passenger and the principles of causation in the context of negligence.

The Court's reasoning focused on the established principles of negligence. It was held that a driver owes a duty of care to their passengers to drive with reasonable care and skill. The Court examined the evidence to ascertain whether the respondent's driving fell below this standard and whether that failure was a cause of the accident. The principles of foreseeability of harm and the directness of the causal link between the breach of duty and the injury were central to the Court's determination.

The High Court allowed the appeal, finding that the respondent had breached their duty of care to the appellant and that this breach caused the appellant's injuries. The matter was remitted to the trial court for the assessment of damages.

Orders