Martin v Osborne

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.