Gabriel v Ah Mook - [1924] HCA 42

ON APPEAL FROM A COURT OF SUMMARY JURISDICTION Immigration-Prohibited immigrant-Evidence-Burden of proof-Averment in

information-Evidence given by prosecution-Immigration Act 1901-1920 (No. 17 of 1901-No. 51 of 1920), sec. 5.

Where, on a prosecution under sub-sec. 2 of sec. 5 of the Immigration Act 1901-1920, the prosecution proves some only of the relevant facts and does not complete them SO as to enable the tribunal to come to a conclusion one way MELBOURNE, or the other as to the averment contained in the information that the defendant is an immigrant and has entered the Commonwealth within three years before failing to pass the dictation test, the averment is, under sub-sec. 3, to be deemed to be proved in the absence of proof to the contrary by the personal Gavan Duffy

Adelaide Steamship Co. v. The King, (1912) 15 C.L.R. 65; (1913) A.C. 781; 18 C.L.R. 30 Symons v. Schiffmann, (1915) 20 C.L.R. 277, and Schiffmann V. Whitton, (1916) 22 C.L.R. 142, distinguished.

APPEAL from a Court of Summary Jurisdiction of South Australia.

At the Police Court, Adelaide, before a Stipendiary Magistrate, an information was heard whereby Frederick William Edmund Gabriel charged that Ah Mook was an immigrant and was on 16th May 1924 required to pass the dictation test and failed to do SO and that Ah Mook entered the Commonwealth within three years before

34 CLR 592

failing to pass such dictation test and was therefore a prohibited

immigrant offending against the Immigration Act 1901-1920 and was on 11th May found within the Commonwealth in contravention of the said Act. After evidence had been given on behalf of the Crown, the Special Magistrate dismissed the information, his reasons being as follows :- In this case the prosecution has averred that the defendant is an immigrant and that he failed to pass the dictation test within three years of entering the Commonwealth, The prosecution has led evidence to show that he is an immigrant. There is also evidence on the question as to when he entered the Commonwealth. Certain questions were put to him, his answers to which were not satisfactory. He said he had been in Australia thirty-five years and three years in the shop of Ah Fong. He said he was twenty-nine years of age. There is evidence that Ah Fong came along and stated that he (Ah Mook) was thirty-five years of age and had been twenty-nine years in Australia. There is some evidence for the Court to consider as to whether he had been in the Commonwealth three years. I am of opinion that I must follow the cases in the High Court cited by Mr. Smith -Adelaide Steamship Co. v. The King 1, Attorney-General of the Commonwealth V. Adelaide Steamship Co. 2, Symons v. Schiffmann 3 pue Schiffmann v. Whitton 4 "and this is a case which falls within those decisions. I hold that the prosecution is bound to rely on the evidence it has given alone. There is evidence that…

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 Gabriel v Ah Mook

Details

AGLC: Gabriel v Ah Mook [1924] HCA 42
Case: [1924] HCA 42
Decision Date: 6 November 1924

CaseChat Overview and Summary

The case of *Gabriel v Ah Mook* involved an appeal to the High Court of Australia from a decision of a Stipendiary Magistrate in South Australia. The appellant, an officer of the Home and Territories Department, had laid a complaint against the respondent, Ah Mook, alleging he was a prohibited immigrant. The complaint averred that Ah Mook was an immigrant, had failed a dictation test on 16 May 1924, and had entered the Commonwealth within three years prior to failing that test.

The legal issue before the High Court was whether the Stipendiary Magistrate had erred in dismissing the complaint. Specifically, the court had to determine the application and effect of section 5(3) of the *Immigration Act 1901-1920*, which provided that certain averments in the information, including that the defendant is an immigrant and has entered the Commonwealth within three years before failing a dictation test, are deemed to be proved in the absence of proof to the contrary by the personal evidence of the defendant. The Magistrate had dismissed the complaint, finding that while there was evidence of the respondent being an immigrant and failing the test, the evidence regarding the date of entry was insufficient and contradictory, and therefore he was bound by previous High Court decisions to disregard the deeming provision in section 5(3).

The High Court reasoned that the previous decisions relied upon by the Magistrate applied only when the prosecution presented all relevant facts relating to an averment and the conclusion drawn from those facts was adverse to the averment. However, if the prosecution presented only some facts and was unable to complete the proof, those precedents did not apply. The Court held that section 5(3) of the *Immigration Act* was directly applicable to the circumstances of the case. The Magistrate had incorrectly disregarded this provision, despite the respondent not providing any personal evidence to the contrary.

Consequently, the High Court allowed the appeal, set aside the Magistrate's order of dismissal, and deemed the averment regarding the respondent's entry into the Commonwealth within the relevant period to be proved. The appellant was to pay the costs of the appeal in accordance with his undertaking.

Orders