Griffin v Wilson

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.