Lee Fan v Dempsey

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.