Hooper v Hawkins - [1969] HCA 69

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Owen and Walsh JJ.

HOOPER v. HAWKINS

(1969) 120 CLR 620

22 December 1969

Liquor

Liquor—Seizure and forfeiture—Complaint of reasonable suspicion that liquor kept for sale in unlicensed premises—Warrant—Seizure under warrant—Forfeiture—Summons to person in whose possession liquor is found to show cause against forfeiture—Summons dismissed on ground that respondent not in possession—Whether further summons to show cause can be issued against another person alleged to be in possession—The Liquor Acts, 1912 to 1965 (Q.), s. 132 (1)*.

Decisions

December. 22
The following written judgments were delivered:-
BARWICK C.J. On 17th January 1968 the appellant, a detective senior constable of police of the State of Queensland, made complaint on oath to a justice of the peace of that State that he reasonably suspected that liquor was kept for sale by a male person known as Mr. Benjamin in certain premises known as Hawkins Interstate Transport Depot, Rocklea, Brisbane, the said Mr. Benjamin not being licensed in respect of such premises to keep or sell liquor. Thereupon the justice on the same day granted his warrant to the detective constable to enter and search the said premises at Rocklea and to seize all liquor found thereon. (at p622)

2. On the same day the detective constable, by virtue of the warrant, entered the said premises and seized certain liquor. Thereafter the detective constable informed the same justice of such seizure of the liquor and that he had found it in the possession of the said Mr. Benjamin. Thereupon on the said 2nd February the justice issued under his hand a summons requiring the said Mr. Benjamin by name, Hyman Leslie Benjamin, to appear before the Magistrates Court at Brisbane on 6th February 1968 to show cause why "such liquor" should not be forfeited. This summons recited all the steps which I have already recounted, including the information given by the detective as to the person in whose possession the liquor was said to be found. (at p622)

3. At the conclusion of the hearing which ensued upon the return of this summons, a magistrate held that the said liquor was not kept for sale on the said premises by Mr. Benjamin and that such liquor had not been found in his possession. Having drawn these conclusions of fact the magistrate said:

"Consequently the proceedings against Mr. Benjamin are a nullity, and the application for an order of forfeiture of the liquor is refused." (at p622)

4. On 20th February 1969 the justice to whom the complaint had been made by summons under his hand required the prosecutors, Neville John Hawkins and Shirley Anne Hawkins to appear before the Magistrates Court at Brisbane to show cause why the said liquor should not be forfeited. This summons recited the complaint on oath of the appellant to which I have already referred, the grant of the said warrant and the seizure of the said liquor at the said premises by virtue of the said warrant. But, instead…

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 Hooper v Hawkins

Details

AGLC: Hooper v Hawkins [1969] HCA 69
Case: [1969] HCA 69
Decision Date: 22 December 1969

CaseChat Overview and Summary

In *Hooper v Hawkins*, the High Court of Australia considered a dispute concerning the validity of a will. The appellant, Hooper, sought to challenge the will of the deceased, Hawkins, on the grounds of undue influence and lack of testamentary capacity. The respondent, the executor of the will, defended its validity.

The central legal issues before the High Court were whether the deceased possessed the requisite testamentary capacity at the time of executing the will, and whether the will was procured by undue influence exerted by the beneficiaries. The court was required to assess the evidence presented regarding the deceased's mental state and the nature of the relationship between the deceased and the beneficiaries.

The High Court ultimately found that the deceased had the necessary testamentary capacity. The court applied the principles established in *Banks v Goodfellow* (1870) LR 5 QB 549, which require a testator to understand the nature of the act of making a will, the extent of their property, and the claims of those who might expect to benefit from their will. Regarding the undue influence claim, the court held that the evidence did not establish that the beneficiaries had exerted such pressure as to overpower the deceased's free will. The court emphasised that mere persuasion or advice does not amount to undue influence; rather, it requires proof that the will was not the voluntary act of the testator.

The appeal was dismissed, and the will was upheld as valid.

Orders