Holland v Jones

[1917] HCA 26

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Cons

Uonuam.Verda

Mutemeri v

Estates Pty Cheesman

Ltd V Carbon

(1998) 100

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(1991)72

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23 C.L.R.] OF AUSTRALIA.

149

[HIGH COURT OF AUSTRALIA.]

HOLLAND AND ANOTHER

A p p e l l a n t s ;

D e f e n d a n t s ,

A N D

JONES ..

R e s p o n d e n t .

I n fo rm a n t ,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF

VICTORIA.

War Precautions—Prosecution— Consent of Minister for Defence—Proof—Judicial

H. C. OF .A.

notice—“ Official document” — “ Official signature”— Abetting in nmking

1917.

statements prejudicial to recruiting—Evidence— IFar Precautions Act 1914­

1910 (No. 10 of 1914—No. 3 of 1910), sec. 0— IFar Precautions Regulations Melbocirne,

1915 (Statutory Rules 1915, No. 130), reg's. 28 (6), M ~Evidence Act 1905 (A'o.

May

18;

4 of 1905), sec. 4.

June 13.

Apart from Statute, wherever a fact is so generally known that every ordinary person may bo reasonably presumed to be aware of it, a Court judicially

’

Daff.v JJ.

notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. A Court will, therefore, judicially notice who are the Ministers of tho Crown and a signature purporting to be that of a Minister of tho Crown and to v'erify an official document.

On a summary prosecution instituted by an officer of the Defence Depart­ ment for an offence against the War Precautions Act 1914-1916, which by sec. 6 (3.v) is required to bo authorized in writing by the Attorney-General or the Minister for Defence, in order to prove the authority counsel for the informant tendered in evidence the original information in the margin of which were written the words “ I consent to this prosecution ” and a signature of the name of the person who in fact was the Minister for Defence.

Held, that the document taken as a whole was an “ official document ” and that the signature was an “ official signature,” within the meaning of sec. 4 of tho Evidence Act 1905, of which the Court was bound to take judicial

voL. xxiit.

11

150 HIGH COURT

[1917.

H. C. OF A. notice, and, therefore, that the authority of the Minister was sufficiently proved.

1917.Leaflets containing statements likely to prejudice the recruiting of His Majesty’s Forces were printed by A, and a large number of them were distri­

H oi.land

buted to the public.

V.

J ones.Held, that B, who assisted A to print the pamphlets and knew of their distri­ bution and was generally closely connected with A, was properly convicted of the offence of abetting in making such statements created by regs. 28 (6) and 49 of the War Precautions Regulations 1915 (Statutory Rules 1915, No. 130).

A p p e a l from a Court of Petty Sessions of Victoria.

At tjie Court of Petty Sessions at Melbourne an information was heard whereby William Percival Jones, a police detective attached to the Intelligence Branch of the Commonwealth Defence Depart­ ment, charged that Frederick A. Holland and Norman C. Anderson did, contrary to the War Precautions Act 1914-1916 and the Regula­ tions thereunder, abet in making statements likely to prejudice the recruiting of His Majesty’s Forces. In order to prove the consent of the Minister for Defence as required by sec. 6 (3a) of the IPar Precautions Act 1914-1916, counsel for the informant tendered in evidence the original information, upon which there appeared in the margin the written words “ I consent to this prosecution,” followed by the written signature “ G. F. Pearce,” which was in fact the name of the Minister for Defence. The statements com­ plained of were made in certain leaflets, and the evidence showed that these leaflets were printed by Anderson and that a large number of them had been distributed to the public. Both the defendants were convicted, and from the conviction they appealed to the High Court by way of order to review, the grounds of appeal being substantially that there was not sufficient or proper evidence of the written consent to the prosecution, and that there was not sufficient or proper evidence that the defendant Holland abetted the making of statements likely to prejudice the recruiting of His Majesty’s Forces.

Other material facts are stated in the judgment of Isaacs J. herennder.

Magennis, for the appellants.

There is no evidence of the con­

sent in writing of the Minister for Defence.

Assuming that judicial

23 C.L.R.]

OF AUSTRALIA.

notice is taken of the fact that a certain person is for the time being H- C. of A.

Minister for Defence, it is only of his “ official signature ” that the

Courts are required to take judicial notice under sec. 4 of the Evidence

H ollaud

V.

Act 1905. The information is not an “ official document ” within

JOXES.

the meaning of that section. In order that a signature should be official it must purport on the face of the document to be written in his official capacity by the person whose signature it is said to be. See Williams v. Silver Peak Mines Ltd. (1). The charge against Holland is, in substance, that he distributed the leaflets. But there is no evidence of their distribution by him except among the persons who prepared them, whereas it was necessary to show that he took part in the distribution to the public.

II. I. Cohen, for the respondent. The information is an “ official document.” If in a document to which the official consent of the Minister for Defence is required a signature of the name of the person who in fact is the Minister for Defence is appended to a consent, that document is an “ official document ” and the signature is an “ official signature.” There was sufficient evidence before the Magistrate of the consent of the Minister. He was entitled to say that he knew the signature to be that of the Minister. At common law the Magistrate was entitled to take judicial notice of this signature. [He referred to Ex parte Major (2) ; Walker v. Jenkins (3) ; Phipson on Evidence, 5th ed., pp. 13, 14.J In order to prove that Holland abetted in the making of the statements it was sufficient to show that he took part in printing the leaflets. He did an act which led

ultimately to the making of the statements. The printing is part

of making the statements.

Magennis, in reply, referred to Halshury's Laws of England, 'vol. XIII., p . 497.

Cur. adv. vult.

June 13,

B.4RTON A.C. J. My brother Isaacs will read a judgment in which 1 concur.

My brother Gavan Duffy,' who is not present, does not

deliver a' judgment.

(1) 21 C.L.R., 40, at pp. 47, 52.

(2) 8 S.R. (N.S.W.), 68.

(3) 1 V.R. (L.), 9.

152 HIGH COURT

[1917.

H. C. or A.

I saacs J. read the following judgm ent;—Two points are raised in this appeal.

1917.On behalf of both appellants—Holland and Anderson

H

o l l a n d—it is said the consent of the Minister for Defence to the prosecution

V.

was not proved.

As to Holland the further contention is made that

J o n e s .

Isaaos J.there is no evidence tha t he abetted in “ making ” the statements

contained in the leaflets which were the subject of the prosecution. The Police Magistrate arrived a t his conclusion that the necessary consent was established by reading the document in which it was said to be contained, and by saying “ I am satisfied that the signature ‘ G. P. Pearce ’ following upon the words ‘ I consent to this prosecu­ tion ’ appearing on the face of the information is the signature of G. F. Pearce whom I know to be the Minister for Defence and whose signature as such Minister I have seen on many informations which have come before me.”

I t ŵ as urged tha t the Magistrate’s personal knowledge outside the evidence in the case was legally unavailable, and should not be regarded, and that without it there was no evidence to prove the consent; and, next, that as the signature “ G. F. Pearce ” was not accompanied by any form of words purporting to indicate that the signature was an official signature the Evidence Act (No. 4 of 1905), sec. 4, did not apply.

In my opinion the contention is not sustainable.

I t rests upon

a misconception of what is meant by “ judicial notice.” Apart from the strict rules to which Courts ordinarily adhere when determining controversies between litigants, certain relaxations are recognized and acted on where justice is thereby better served. Dying declara­ tions, declarations against interest, and declarations in the course of duty by persons since deceased, are familiar illustrations. But beades these and similar instances, there are matters of which the Court even apart from Statute may require no evidence at all. This they do by taking what is called “ judiciaj notice ” of them. Text-books on evidence make reference to this practice, and give precedents. Taylor on Evidence, lOth ed., vol. i., pp. 3-22, enumerates a multitude of instances both at common law and statutory. As to executive and judicial officers, it is there stated (p.

15):

“ The English doctrine on this subject is difficult of definition.”

23 C.L.R.J OF AUSTRALIA.

153

Nevertheless, the learned author adopts with express acknow­

H. C. o r A.

ledgment the view, and even much of the language, of Greenleaf on

1917.

Evidence. At p. 19 of Taylor it is stated that “ The Courts will,

H o l l a n d

V.

too, judicially recognize the political constitution or frame of their J o n e s .

own Government; its essential political agents or public officers

Isaacs J.

sharing in its regular administration; and its essential and regular political operations and actions. Accordingly, all tribunals notice

. . . the heads of departments, and the principal officers of State, whether past or present; . . . and, in short ” (here quoting from Skadwell V.C. in Taylor v. Barclay (1)), “ all ‘public matters which affect the government of the country.’ ” This has even been extended to the recognition by the Government of the independence of foreign peoples : Foster v. Globe Venture Syndicate Ltd. (2).

The only guiding principle—apart from Statute—as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court “ notices ” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it con­ siders reliable and necessary in order to eliminate any reasonable doubt.

The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not “ general ” but “ particular ” facts. As to “ par­ ticular ” facts, even the Judge’s own personal knowledge is not to be imported into tlie case ; Hurpurshad v. Sheo Dyal (3) and MePthun Behee v. Busheer Khan (4). To import knowledge of a })articular fact in issue would be to import evidence in the strict sense regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.

Hut if the fact is of such “ general ” character as to give rise to the presumption mentioned, then a Judge is justified in “ noticing ” it. He must, however, be fully satisfied of the fact, and must be cautious to see that no reasonable doubt exists. To prevent doubt he may

(1) 2 Sim., 213, a t p. 221.(3) L.K. 3 Ind. App., 259, at p. 286.

(2) (1900) 1 Ch., 811.

(4) 11 Moo. Ind. App., 213, at p. 221.

154 HIGH COURT

[1917.

H. C. OF A. seek information in various ways, illustrations of which are found

in Taylor on Evidence, vol. i., pp. 21-22. His own knowledge may for this purpose, and not as evidence in the real sense, be relied on,

H

o l l a n d

V.

J o n e s .as the Magistrate did in the present case. And for this position

Isaacs J.authority is, if necessary, found in the judgment of Wills J. in E. v. Field (1). It is evident that no exhaustive list can be compiled of things that are open to judicial notice. Illustrations of this truism will occur to everyone. That communication is possible by wireless telegraphy is a recent and conspicuous example. Several instances ancient and modern are to be found in Professor Thayer's treatise on Evidence (1898), at pp. 305 and 306.

Applying these observations to the present case, it would be mere idle affectation for an Australian Court not to “ know ”—more particularly in war time—who is the Minister for Defence. He is one of the Ministers of State for tlie Commonwealth referred to by sec. 64 of the Constitution. His appointment and public duties are matters of universal Australian concern.

In Mighell v. Sidtan of Johore (2) the Court accepted as genuine the signature of an official—not a Minister—but purporting to be on behalf of a Minister. That is an d fortiori case, and consequently, if the personality of the Minister is to be judicially noticed, it would seem that a signature purporting to be his and to verify an official document may also be judicially noticed, provided the Court is satisfied from the circumstances it is genuine. The act of consent in such a case as the present is an official act, the doctrine of R. v. Verelst (3) is sufficient to establish primd facie that the person acting was the proper person to give the consent, and the judicial notice taken of a Minister’s signature to an official document completes the chain. No doubt it is open to a party to disprove the genuineness of the signature if he can, and then the Court will not act upon it. The consent in this case incorporates by necessary reference the whole of the charge that is intended to be made, and this read in extenso is plainly an official document, such as is contemplated by see. 6, sub-sec. 3a, of the War Precautions Act 1914-1916. It comes from the possession of the proper official, supposing it to be genuine.

(1) 64 L..J.M.0., 158, at p. 160.

(2) (1894) 1 Q.B., 149.

(3) 3 Camp., 432.

23 C.L.R.] OF AUSTRALIA.

155

The prosecutor is a police detective attached to the Intelligence Branch of the Defence Department.

R- C. o f a .

His learned counsel, who was

instructed by the Commonwealth Crown Solicitor, produced the H

o l l a n d

V.

consent as that of the Minister. There could, consequently, be no

J o n e s .

reasonable doubt whatever that the coasent is an official document, Isaacs J.

and that the signature is appended as an official signature.

As to the Act, it is partly an extension and partly a modification of the common law. It extends, or may by force of an order of the Governor-General extend, the number of offices to which the doctrine applies. It also by sec. 4 (c) requires notice to be taken of the person­ ality of the official on the mere production of the judicial or official document. But in using the term “ official signature ” or “ official document ” the Act does not mean that there must be independent proof of the “ official ” character of either—a course which would destroy the efficacy of the enactment ; nor does it use any words showing that the signature or the document must contain any special words asserting its official character. If the instrument either from its nature or anything contained in it, whether in the body or connected with the signature, appears to be of an official character, and there is nothing to destroy the effect of that appear­ ance, there is sufficient to bring it within sec. 4 (c), and that is enough to establish here that G. F. Pearce is holding the office of Minister for Defence.

Then, as the proper conclusion from the document itself is that the signature was appended as an official act, it is to be regarded as an official signature, and sec. 4 (a) applies. Whatever might have been the case as to the signature apart from the Act (see Howell v. IVilkins (1)), it is clear that the Act answers the objection.

The first point therefore fails. which was, on the face of it, signed by Holland, and was from its own terms intended for distribution. Holland assisted to print it, was familiar with the fact of its almost complete distribution, and was generally so closely connected with Anderson that there is ample ground for the inference the Magistrate drew that Holland did abet in actually making the statements, even interpreting that

(1) 7 B. k 0., 783.

156 HIGH COURT

[1917.

H. C. OF A. in the narrowest way as confined to the actual distribution of the

pamphlets and assuming the actual distributor is unknown.

H o l l a n d

In my opinion this ground fails also, and the appeal should be

V.

J o n e s .

dismissed with costs.

Appeal dismissed iviih exists.

Solicitors for the appellants, Loughrey & Douglas.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor

for the Commonwealth.

B. L.

[HIGH COURT OF AUSTRALIA.]

BLACKHAM AND ANOTHER

Ap p e l l a n t s ;

D e p e n d a n t s ,

A N D

HAYTHORPE AND ANOTHER

R espo n d en ts .

P l a in t if f s ,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

H. C. O F A.

Principal and Agent— Purchase by agent from principal—Non-disclosure of material

1917.

.Ad e l a id e , The defendants, who were land agents employed by the plaintiff to sell his

land to the Crown, during the course of their employment acquired the know­

June

1.

ledge that the Crown would in all probability give £5 per acre for the land.

Isaacs, Powers and Rich JJ.Before the agency was terminated one of the defendants purchased the land

on his own account for about £2 10s. per acre without disclosing to the plaintiff the fact that there was such a probability, and shortly afterwards sold it to the Crown for £5 per acre.