Moss v Donohoe

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.