Lee Fan v Dempsey - [1907] HCA 54

COMPLAINANT,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Vagrancy-Idle and disorderly person-" No visible lawful means of support"-

Police Act 1892 (W.A.) (55 Vict. No. 27), sec. 65 1. PERTH,

The Police Act 1892 (W.A.), sec. 65 (1), provides that "every person who Oct. 28, 31.

shall commit any of the next following offences shall be deemed an idle and disorderly person,

and shall on conviction be liable to imprisonment

1Every person having no visible lawful means of support who being thereto required by any Justice, or who having been duly summoned for such purpose or brought before any Justice, shall not give a good account of his means of support to the satisfaction of such Justice." Held, that the sub-section was intended to create an offence cognizable immediately by a Justice upon the accused person being brought before him and charged with the offence named, and that no preliminary or extra-judicial investigation by a Justice into the existence of lawful means of support is required before the formulation of the charge. Upon prima facie proof of the absence of lawful means of support, the onus falls upon the accused to prove the existence of such means to the satisfaction of the Justice. Wilson v. Benson ( (1905) V.L.R., 229; 26 A.L.T., 144), and Wilson V. Travers, ( (1906) V.L.R., 734 28 A.L.T., 56), overruled. THE appellant was brought before a magistrate and charged with being a person having no visible lawful means of support. Evidence was given for the prosecution that the appellant

5 CLR 311

haunted gambling houses in the Chinese quarter of Perth, and H. lived on his pay as a fighting man hired by a certain Society to prevent evidence being given in gambling prosecutions. The defence also produced evidence of lawful means of support; but the magistrate found appellant guilty of the charge "and thereby deemed to be an idle and disorderly person," and sentenced him to four months' imprisonment with hard labour. He appealed to the General Quarter Sessions on questions of fact; but Burnside J. dismissed the appeal. From this decision an appeal was brought by special leave to the High Court.

Penny, for the appellant. The requirements of sec. 65 1 of Police Act 1892 were not complied with in the proceedings before the magistrate; no preliminary account of himself was required of appellant by any justice before his arrest, and no proof of the appellant's having failed to satisfy any such justice was given at the hearing: Police Offences Act 1890 (Vict. No. 1126), sec. 40 (1); Wilson v. Benson (1); Wilson v. Travers 2. The preliminary inquiry is an administrative proceeding, and he can- not be arrested and charged with an offence until the inquiry is decided against him.

Thomas, for the respondent. Wilson v. Benson (1), and Wilson v. Travers (2), were wrongly decided. Sec. 65 (1) of the Western Australian Act constitutes the offence of being an idle and disorderly…

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 Lee Fan v Dempsey

Details

AGLC: Lee Fan v Dempsey [1907] HCA 54
Case: [1907] HCA 54
Decision Date: 31 October 1907

CaseChat Overview and Summary

The case of *Lee Fan v Dempsey* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Western Australia. The appellant, Lee Fan, had been convicted under section 65(1) of the *Police Act 1892* (W.A.) of being an idle and disorderly person, specifically for having no visible lawful means of support. The conviction followed evidence presented by the prosecution that the appellant frequented gambling houses and was paid by a society to prevent evidence being given in gambling prosecutions, while the defence also presented evidence of lawful means of support.

The central legal issue before the High Court was the interpretation of section 65(1) of the *Police Act 1892* (W.A.). Specifically, the court had to determine whether a preliminary, extra-judicial investigation by a Justice into the existence of lawful means of support was required before a charge could be formulated, or if the offence could be cognizable immediately upon the accused being brought before a Justice and charged. This question arose due to differing interpretations of similar provisions in Victorian legislation, as established in *Wilson v. Benson* and *Wilson v. Travers*, which the appellant argued should be applied.

The High Court, in dismissing the appeal, held that section 65(1) was intended to create an offence where, upon prima facie proof of the absence of visible lawful means of support, the onus shifts to the accused to provide a satisfactory account of their means to the Justice. The Court reasoned that the requirement to give a good account of one's means was not a prerequisite to laying a charge, but rather a condition precedent to conviction on the charge of being an idle and disorderly person. The procedure followed in Western Australia, where the accused is brought before a Justice, evidence of lack of visible lawful means is presented, and the accused is then called upon to satisfy the Justice regarding their means, was deemed correct. The Court explicitly overruled *Wilson v. Benson* and *Wilson v. Travers* to the extent they were inconsistent with this interpretation, finding that the Victorian court's construction would render the provision unworkable and contrary to the legislative intent of providing a summary means of dealing with persons lacking visible lawful support.

Orders