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Maher v Musson

Maher v Musson

Case [1934] HCA 64 20 December 1934

Appeal

Statutory Construction

Remedies

Criminal Law

Statutory Interpretation

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52 CLR 100

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Customs and Excise-Illicit spirits-Knowledge of accused-Whether ingredient of

offence-Onus probandi-Distillation Act 1901-1931 (No. 8 of 1901-No. 3 of 1931), sec. 74 (4)* SYDNEY, Nov. 26, 27;

Held, by Rich, Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that a person charged with an offence under sec. 74 (4) of the Distillation Act 1901- 1931, is entitled to be discharged if he proves that he neither believed nor had reason to believe that the spirits in respect of which he is charged were illicit.

CASE STATED.

George Francis Willoughby Musson, a chemist, was charged under sec. 74 (4) of the Distillation Act 1901-1931, on an information laid by James Bernard Maher, an officer of the Customs Department, that on 18th June 1934 at Sydney, he did have in his custody illicit spirits, namely, about one half-gallon of rectified spirit. It was not disputed that Musson had received the spirit, the subject of the charge, and that he had it in his possession. He, however, swore that he did not suspect that the spirit was illicit, and that he had received it from a third party upon the recommendation of a friend of long standing whose probity he had never had cause to, and did not, doubt. The spirit had, in fact, been stolen from a distillery before it came into the possession of the defendant.

his custody or under his control any 1931, provides " No person shall-

(4) Receive, carry, convey, or

illicit spirits knowing them to be illicit conceal, or have upon his premises or in

52 CLR 101

The magistrate dismissed the information. He said that his opinion was that mens rea, or knowledge that the spirit was illicit, was not a necessary ingredient of an offence under sec. 74 4. But, he continued, the facts proved in the case were that the illicit spirit was purchased, and in view of sec. 74 (7) as to purchase, where knowledge was necessary, and in view of the fact that he had held that on the evidence he could not say the defendant had such know- ledge, he did not think, in all the circumstances, that he should convict merely because the defendant was, upon those facts, charged under sec. 74 (4).

From this decision the informant appealed to the High Court by way of case stated.

Other material facts appear in the judgments hereunder. [Subsequently to the hearing of the appeal the magistrate informed the Court, in response to an inquiry therefrom, that in dismissing the information he did not act under the provisions of sec. 556A of the Crimes Act 1900 (N.S.W.).]

Sugerman, for the appellant. The only question which arises is whether upon a charge brought under the provisions of sub-sec. 4. of sec. 74 of the Distillation Act 1901-1931, knowledge is an ingre- dient of the offence. The magistrate was in error in taking into consideration the fact that, upon the facts,…

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 Maher v Musson

Details

AGLC: Maher v Musson [1934] HCA 64
Case: [1934] HCA 64
Decision Date: 20 December 1934

CaseChat Overview and Summary

The High Court of Australia heard an appeal by James Bernard Maher, an officer of the Customs Department, against a decision of a magistrate who dismissed an information against George Francis Willoughby Musson. Musson, a chemist, was charged under section 74(4) of the *Distillation Act 1901-1931* for having illicit spirits in his custody. It was not disputed that Musson possessed the spirits, which had been stolen from a distillery. Musson testified that he did not suspect the spirits were illicit and had acquired them based on the recommendation of a trusted friend.

The central legal issue before the High Court was whether knowledge that the spirits were illicit was a necessary ingredient of the offence created by section 74(4) of the *Distillation Act 1901-1931*. The magistrate had dismissed the information, stating his opinion that *mens rea*, or knowledge of the illicit nature of the spirits, was not a necessary element of the offence under that subsection, but he did not convict due to the specific facts and circumstances of the case. The appeal concerned the interpretation of the statutory provision and the onus of proof regarding the defendant's knowledge.

A majority of the High Court, comprising Rich, Dixon, Evatt, and McTiernan JJ., held that a person charged under section 74(4) is entitled to be discharged if they can prove they neither believed nor had reason to believe that the spirits in question were illicit. While acknowledging that revenue statutes can sometimes displace the presumption of *mens rea*, the majority found that the language of section 74(4) and the nature of the offence did not necessitate an absolute prohibition. They reasoned that it would be an absurdity to penalise an innocent carrier or possessor of spirits whose illicit character they could not reasonably have known, and that the statute did not require such a strict interpretation. Starke J. dissented, taking the view that the prohibition in section 74(4) was absolute in its terms and, given the subject matter of the Act, should be interpreted as such.

The High Court remitted the case to the magistrate. The majority found that it was open to the magistrate to acquit the accused if he was satisfied that the accused reasonably believed the spirits were not illicit, but it was unclear from the magistrate's decision whether he had considered this defence or placed the onus of proof accordingly. The appellant was ordered to pay the costs of the appeal.

Orders