Li Wan Quai v Christie - [1906] HCA 42

LI WAN QUAI CHRISTIE

RESPONDENT. INFORMANT,

ON APPEAL FROM THE COURT OF GENERAL SESSIONS AT

MELBOURNE, VICTORIA. Immigration Restriction Act 1901 (No. 17 of 1901), secs. 3 (k), 5 - Prohibited immi-

grant-Member of crew of vessel-Desertion-Absence from muster - Evasion of an officer-Autrefois acquit-Appear to Court of General Sessions of Victoria- Power of amendment-Justices Act 1890 (Vict.), (No. 1105), secs, 133, 185.

A member of the crew of a vessel, not being a public vessel of any govern- ment, who, in a port in the Commonwealth, deserts that ship and is absent from a muster of the crew made in pursuance of sec. 3 (L:) of the Immigration Restriction Act 1901, is an immigrant who has evaded an officer, within the meaning of sec. 5 of that Act.

The true test whether a plea of autrefois acquit or of autrefois convict is a sufficient bar in any particular case is whether the evidence necessary to support the second charge would have been sufficient to procure a legal con- viction upon the first.

On an appeal to a Court of General Sessions of Victoria from a conviction by a Court of Petty Sessions, the former Court has, under the Justices Act 1890 (Vict.), power to make all proper amendments although the written infor- mation is defective.

APPEAL from the Court of General Sessions at Melbourne.

The ship Changsha arrived in Melbourne in October 1904, one Li Wan Quai, a Chinese, being a member of the crew. On the 22nd October 1904, when the vessel was about to leave, the crew

3 CLR 1126

was mustered at the direction of Orlando O'Brien, an officer of Customs, but Li Wan Quai was not present, having left the ship. Li WAN QUAI

On 31st October 1905, Li Wan Quai was found in Melbourne by J. M. Christie, a detective of Customs, and on the following day the dictation test was put to him. On 28th November 1904 an information had been issued by which Christie charged that Li Wan Quai, on or about 22nd October 1904, at Melbourne, being one of the crew of the vessel Changsha when she arrived at the Port of Melbourne, was in the opinion of Orlando O'Brien, an officer of Customs at that Port, a prohibited immigrant within the meaning of the Immigration Restriction Act 1901 and was not present when the crew was mustered by the master of the said vessel when required SO to do by the said officer before the master of the said vessel was permitted to leave the said port." On this information Li Wan Quai was brought before the Court of Petty Sessions at Melbourne on 8th November 1905, was con- victed of the offence therein charged, the conviction following the language of the information, and was sentenced to imprisonment for 14 days.

From this conviction Li Wan Quai appealed to the Court of General Sessions, and the appeal was heard on 15th December 1905. It being contended…

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.

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Details

Case: [1906] HCA 42
Decision Date: 29 June 1906

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Court of General Sessions at Melbourne. The appellant, Li Wan Quai, a Chinese crew member of the ship Changsha, had been convicted under the Immigration Restriction Act 1901. The initial conviction by the Court of Petty Sessions was quashed on appeal to the Court of General Sessions on the grounds that the information disclosed no offence and the court refused to amend it. A subsequent conviction by the Court of Petty Sessions, following a new information, was affirmed by the Court of General Sessions, leading to the present appeal.

The legal issues before the High Court included whether Li Wan Quai was a prohibited immigrant, specifically whether he had evaded an officer within the meaning of section 5 of the Immigration Restriction Act 1901. The court also had to consider the applicability of the plea of autrefois convict (or res judicata) in light of the prior quashed conviction, and whether the Court of General Sessions had erred in refusing to amend the initial information.

The High Court held that Li Wan Quai, by deserting his ship and being absent from a mandatory muster of the crew, was a person who had evaded an officer. This meant the dictation test could be lawfully applied to him at any time thereafter, even more than twelve months after his entry into the Commonwealth, rendering him a prohibited immigrant. Regarding the plea of autrefois convict, the court applied the test that the evidence necessary to support the second charge must have been sufficient to procure a legal conviction upon the first. It found that the charges in the two informations were not substantially the same, as one related to entering the Commonwealth and the other to being found within the Commonwealth at a later date, and therefore the plea failed. The court also noted that while the Court of General Sessions had the power to amend the defective information, its refusal did not necessarily mean the appellant had been in jeopardy, particularly as the original information disclosed no offence.

The appeal was dismissed, with the High Court affirming the conviction of Li Wan Quai as a prohibited immigrant found within the Commonwealth.

Orders