Preston v Donohoe

This case concerned appeals by the masters of two steamships, C.F. Preston and E. Gordon, who had been convicted and fined for being the masters of vessels from which a prohibited immigrant had entered the Commonwealth contrary to the Immigration Restriction Acts. The prohibited immigrant in question was a member of the crew who was absent from a muster conducted in the presence of an immigration officer. The officer formed an opinion that this absent crew member would be a prohibited immigrant under subsection (a) of section 3 of the Immigration Restriction Act 1901, as amended, but for the exception provided for ship's crew in subsection (k).

The legal issues before the High Court were whether the absent crew member was correctly deemed a prohibited immigrant, whether the proviso in subsection (k) of section 3 applied to a prosecution against the master of the ship under section 9, and whether any defects in the information laid against the masters were curable by amendment. The court was also asked to consider if the Immigration Restriction Act conflicted with the Imperial Merchant Shipping Act.

The Court reasoned that the proviso in subsection (k) of section 3 was intended to create an artificial rule of evidence applicable in prosecutions under section 9, allowing an officer to form an opinion about a missing crew member's status as a prohibited immigrant. The Court interpreted the proviso to mean that the officer must form an opinion that the person in question would, if called upon, fail to pass the dictation test, as any other construction would defeat the legislative intent. The Court held that once the officer applied their mind to the relevant question, their opinion could not be questioned in a prosecution founded upon it. Furthermore, the Court found that any defects in the information, such as failing to specify the date of entry or the particular class of prohibited immigrant, were curable by amendment under sections 65 and 115 of the Justices Act (N.S.W.) 1902, as the evidence supported the conviction. The Court also concluded there was no conflict between the Commonwealth and Imperial legislation.

Consequently, the High Court held that, in the absence of evidence to the contrary, the magistrate was bound to find that the absent crew member was a prohibited immigrant who had entered the Commonwealth contrary to the Act, and that the masters' convictions were therefore correct. The appeals were dismissed.