Moss v Donohoe - [1915] HCA 61

RESPONDENT. INFORMANT,

ON APPEAL FROM A STIPENDIARY MAGISTRATE OF Trading with the Enemy-Act prohibited by repealed Proclamation-Trading with

neutral carrying on business in enemy country-Attempt-Evidence-Summary conniction-Trading - with the Enemy Acts 1914 (No. 9 of 1914-No. 17 of 1914), secs. 2, 3-Imperial Proclamation of 5th August 1914-Acts Interpretation Act 1904 (No. 1 of 1904), sec. 8-Crimes Act 1914 (No. 12 of 1914), sec. 7.

A company incorporated in the United States of America, and having its head office at New York, had branch houses at Rotterdam in Holland and at Hamburg in Germany. The company's business was the sale and export of gin, which was manufactured for it in Holland by independent distillers. Before the outbreak of the war it was the company's practice to send the gin in bulk to its warehouse at Hamburg, where it was bottled and packed, and whence it was exported. M., a resident in Australia, who had dealt with the company for many years, was convicted before a Stipendiary Magistrate of an attempt, by means of a letter addressed and posted to the company at Hamburg in Germany on 11th August 1914, to trade with the enemy. On appeal to the High Court,

Held, by Isaacs, Gavan Duffy, Powers and Rich JJ. (Griffith C.J. dissenting), that on the evidence the Magistrate might properly find that the letter was an order by M. to the company which then in fact and as M. believed was carrying on business in Germany to supply goods, that M. intended the order to be executed in the ordinary course of the business they were carrying on there, and that he expected to receive the goods in Australia; that on such

20 CLR 616

a state of facts the sending of the letter was an attempt to do an act forbidden by the Imperial Proclamation of 5th August 1914; and that such an attempt was an attempt to trade with the enemy within the meaning of sec. 3 of the Trading with the Enemy Acts 1914, and was punishable summarily under that section by virtue of sec. 8 of the Acts Interpretation Act 1904 and sec. 7 of the

Held further, by Griffith C.J., that the provisions of sec. 8 of the Acts Interpretation Act 1904 and sec. 7 of the Crimes Act 1914 that any attempt to commit an offence against any Act is an offence against the Act itself have no retrospective operation SO far as regards attempts made before the pass- ing of the Act creating the offence.

APPEAL from a Stipendiary Magistrate of New South Wales.

At the Central Police Court at Sydney, before a Stipendiary Magistrate, an information was heard whereby John Thomas Tamplin Donohoe charged that on or about 11th August 1914 Laurence Edward Moss and Lawrance David Phillips did, by means of a letter of that date addressed to Messrs. Udolpho Wolfe Co., Hamburg, Germany, attempt to trade with the enemy. Moss, having been convicted, appealed to the…

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 Moss v Donohoe

Details

AGLC: Moss v Donohoe [1915] HCA 61
Case: [1915] HCA 61
Decision Date: 17 September 1915

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning the conviction of Laurence Edward Moss by a Stipendiary Magistrate for attempting to trade with the enemy. The charge stemmed from a letter Moss posted on 11th August 1914 to a company with a branch in Hamburg, Germany, during the early stages of World War I. The prosecution alleged this letter constituted an attempt to trade with the enemy, an act prohibited by an Imperial Proclamation and the Trading with the Enemy Acts 1914.

The central legal issues before the High Court were whether the letter constituted an attempt to trade with the enemy under the relevant legislation and Proclamation, and whether such an attempt, made before the Act's passage, was retrospectively punishable. Specifically, the court had to determine if the appellant intended to obtain goods from the enemy country, if the sending of the letter was an act prohibited by the Proclamation in force at the time, and if the provisions regarding attempts to commit offences applied retrospectively to acts predating the legislation.

A majority of the High Court, comprising Isaacs, Gavan Duffy, Powers, and Rich JJ., held that the Magistrate was entitled to find that the letter was an order to the company, which Moss believed was operating in Germany, and that he intended for the order to be fulfilled in the ordinary course of that business, expecting to receive the goods in Australia. This conduct was deemed an attempt to trade with the enemy, punishable under the Trading with the Enemy Acts 1914, as interpreted by the Acts Interpretation Act 1904 and the Crimes Act 1914. Griffith C.J., dissenting, argued that the evidence did not affirmatively establish an intention to obtain goods from Hamburg, and that the attempt provisions of the Acts Interpretation Act and Crimes Act lacked retrospective operation for offences committed before the enactment of the Trading with the Enemy Act.

The appeal was dismissed with costs, with the majority upholding the conviction and the dissenting judgment finding the appeal should be allowed.

Orders