Griffin v Wilson - [1935] HCA 16

WILSON AND ANOTHER

RESPONDENTS.

REMOVAL OF CAUSE FROM THE SUPREME COURT OF Immigration-Prohibited immigrant-Dictation test-Evidence-Burden of proof-

Averments in information Found within the Commonwealth ``--Immigration SYDNEY,

Act 1901-1933 (No. 17 of 1901-No. 37 of 1933), secs. 5 (1), (2), (3), 7*- April 8.

Judiciary Act 1903-1933 (No. 6 of 1903-No. 65 of 1933), sec. 40.

The evidentiary provisions of sub-sec. 3 of sec. 5 of the Immigration Act 1901-1933, apply only to offences created under sub-secs. 1 and 2 of that section, and are inapplicable to a prosecution under sec. 7 of the Act. *The Immigration Act 1901-1933, by

been admitted into the Commonwealth sec. 5, provides, SO far as material, as follows :- (1) Any immigrant who-

the pearling industry and is deemed by (a) evades or has, since the commence-

the Minister to be an undesirable per- ment of the Immigration Restriction Act

son, may, if at any time thereafter, he 1901, evaded an officer (b) enters or

is found within the Commonwealth, be has, since the commencement of " that

required to pass the dictation test, and Act, "entered the Commonwealth at any

shall, if he fails to do so, be deemed to be place where no officer is stationed; (c)

a prohibited immigrant offending obtains or has, since the commencement

against this Act. (2) Any immigrant of that Act, " obtained entrance or

may at any time within five years after re-entrance into the Commonwealth by

he has entered the Commonwealth be means of any certificate, credentials or

required to pass the dictation test, and identification card which was not issued

shall if he fails to do so be deemed to to him or is forged, or has been obtained

be a prohibited immigrant offending by false representations (d) has been

against this Act. (3) In any prosecu- admitted temporarily into the Common- wealth in pursuance of any special

ceding sub-sections, the averment of arrangement between the Common-

the prosecutor, contained in the infor- wealth Government and any other

mation, that the defendant is an immi- Government and fails to observe the

grant who-(a) has evaded an officer conditions of his admission; or (e) has

(b) has entered the Commonwealth at a

52 CLR 261

APPLICATION under sec. 40 of the Judiciary Act 1903-1933 for the removal to the High Court of a cause pending in the Supreme Court of New South Wales, and APPEAL.

In an information laid by Richard William Wilson, an officer of the Customs Department, it was alleged that one Gerald Griffin was a prohibited immigrant within the meaning of the Immigration Act 1901-1933, in that he was an immigrant who had entered the Commonwealth within five years before failing to pass the dictation test, and that within five years after he had entered the Common- wealth, namely, on 26th November 1934, he was required at Sydney, New South Wales, to pass the dictation test within the meaning of the Act and failed to do so, and on the…

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 Griffin v Wilson

Details

AGLC: Griffin v Wilson [1935] HCA 16
Case: [1935] HCA 16
Decision Date: 8 April 1935

CaseChat Overview and Summary

This case concerned an appeal by Gerald Griffin against his conviction as a prohibited immigrant under the *Immigration Act 1901-1933*. The prosecution alleged that Griffin, having entered the Commonwealth within five years prior, failed to pass a dictation test administered on 26 November 1934, and was consequently found within the Commonwealth in contravention of the Act. Griffin's defence argued that the information disclosed two offences, one under section 5(2) and another under section 7 of the Act, and that the evidentiary provisions of section 5(3) did not apply to a prosecution under section 7. The matter was initially heard in the Supreme Court of New South Wales and subsequently removed to the High Court of Australia.

The central legal issue before the High Court was whether the evidentiary provisions of section 5(3) of the *Immigration Act 1901-1933*, which allowed for averments by the prosecutor to be taken as proof in the absence of evidence to the contrary, applied to a prosecution for an offence under section 7 of the Act. The Court was required to determine if section 5(3) was limited in its application to offences created by sections 5(1) and 5(2) only, or if it could be relied upon to establish elements of an offence charged under section 7. A further question, though not ultimately decided, concerned the validity of the imprisonment provisions for failing a dictation test for individuals who had resided in Australia.

The High Court, in allowing the appeal and quashing the conviction, held that the evidentiary provisions of section 5(3) were expressly limited by their wording to prosecutions under sections 5(1) and 5(2) of the Act. The Court found that section 7 created a distinct offence, and that the averment provisions of section 5(3) were inapplicable to such a prosecution. Consequently, as the prosecution under section 7 relied on section 5(3) in lieu of affirmative evidence for essential elements of the offence, and this reliance was impermissible, the conviction could not stand. The Court noted the confusing and complex nature of the *Immigration Act* due to numerous amendments.

The High Court answered the question in the case stated in the affirmative, quashed the conviction, and ordered that the respondent pay the costs of the applicant in the High Court and the courts below.

Orders