Evidence-Similar facts-Relevance-Admissibility-Person charged with driving
commercial vehicle while unlicensed-Proof that passengers were carried for reward-Proof of acts on preceding days-Carriage of passengers proved-No evidence of payment-Transport Regulation Act 1933 (Vict.) (No. 4198), secs. 5, MELBOURNE, 45, 47.
The respondent was charged with driving a commercial passenger vehicle without its being licensed under the Transport Regulation Act 1933. In order to prove that the passengers on the day in question were being carried for reward the informant, on whom the onus of proving this fact lay, tendered evidence of the conduct of the defendant in carrying passengers between the same termini on the two preceding days. There was no direct evidence on any occasion of the payment of any money by the passengers.
Held that the evidence was admissible to show that the defendant was operating the car regularly for the carriage of passengers between the two termini and (Starke J. dissenting) was sufficient to make it improbable that the passengers were not carried for reward.
Per Evatt J. Where a question in issue is whether, on a particular occasion, the proved acts of a party were accompanied by the performance by such party of a further act, it is permissible to show that such party was, at or about the time in question, engaged in a special kind of business, line of conduct, or manner of living according to the exigencies of which the proved acts would ordinarily be accompanied by the performance of the further act in issue so as to constitute a typical instance of the business, line of conduct or manner of living in which the party was so engaged. Provided that the business, line of conduct or manner of living is of such a character as to render it very highly
improbable that on the occasion in question the performance by the party concerned of the further act in issue would not accompany his proved acts.
R. v. Makin, (1893) 14 L.R. (N.S.W.) 1; 9 W.N. (N.S.W.) 129; (1894) A.C. 57, R. v. Armstrong, (1922) 2 K.B. 555, R. v. Hall, (1887) 5 N.Z.L.R. 93, R. v. Ball, (1911) A.C. 47, and R. v. G. J. Smith, (1915) 11 Cr. App. R. 229,
Decision of the Supreme Court of Victoria (Gavan Duffy J.) reversed.
APPEAL from the Supreme Court of Victoria.
Before the Court of Petty Sessions at Melbourne the respon- dent, Horace Osborne, was charged on the information of Charles Frederick Roper Martin, under sec. 45 of the Transport Regula- tion Act 1933 (Vict.), that on 1st November 1935 he was the driver between Ballarat and Melbourne of a commercial passenger vehicle which operated on a public highway, to wit, the Western Highway, without the commercial vehicle being licensed in accord- ance with the Transport Regulation Act 1933. "A commercial passenger vehicle is defined in sec. 5 of the Act as meaning any motor car
which is used or intended to be used for carrying passengers for reward…
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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AGLC
Martin v Osborne [1936] HCA 23
Case
[1936] HCA 23
Decision Date
CaseChat Overview and Summary
The appellant, the informant, charged the respondent with driving an unlicensed commercial passenger vehicle. The dispute centred on whether passengers were being carried for reward, a key element of the offence under the *Transport Regulation Act 1933* (Vic.). The informant sought to prove this by tendering evidence of the respondent's conduct on the two preceding days, which the respondent objected to. The Supreme Court of Victoria had ruled this evidence inadmissible and found the remaining evidence insufficient to establish the charge. The informant appealed to the High Court of Australia.
The legal issues before the High Court were twofold: first, whether the evidence of the respondent's activities on the two days prior to the alleged offence was admissible to prove that passengers were carried for reward on the day in question; and second, if admissible, whether this evidence, when considered with the evidence from the day of the alleged offence, was sufficient to justify the magistrate's finding that passengers were carried for reward. The *Transport Regulation Act 1933* placed the onus on the informant to prove passengers were carried for reward, but shifted the onus to the defendant once this was established.
The majority of the High Court, comprising Dixon and Evatt JJ. (with Latham C.J. agreeing), held that the evidence of the respondent's conduct on the preceding days was admissible. They reasoned that this evidence was relevant to demonstrate a regular course of conduct or a business operation, making it highly improbable that the passengers were not carried for reward. This principle, they explained, allows for the admission of similar fact evidence when it establishes a pattern of behaviour or a specific line of business, thereby increasing the probability of the fact in issue. The Court found that the evidence, including the respondent's actions in picking up and dropping off passengers, handling luggage, and the presence of a notice advertising a motor service, collectively pointed towards a commercial operation, and that alternative hypotheses, such as voluntary carriage or a transport club, were too improbable to be reasonably considered. Starke J. dissented, finding that while the evidence might suggest a regular transport service, it was not sufficient to exclude other rational hypotheses, such as the voluntary carriage of friends or a joint adventure, and therefore did not prove the passengers were carried for reward.
The High Court allowed the appeal, setting aside the decision of the Supreme Court. The order nisi was discharged, and the appellant was ordered to pay the respondent's costs of the appeal to the High Court.