by the plaintiffs' invention and of the proved commercial utility of the invention, it cannot be said that the defendants have established the invalidity of the plaintiffs' patent.
I agree therefore that the appeal should be dismissed.
RICH J. I agree that the appeal should be dismissed.
Appeal dismissed with costs. Solicitors, for the appellants, Snowden, Neave &Demaine. Solicitors, for the respondents, F. B. Waters.
COURT OF AUSTRALIA.] Limited &Cth
BERNASCONI,
APPEAL FROM THE CENTRAL COURT OF PAPUA. Constitutional Law - -Powers of Commonwealth legislation as to territory acquired by
Commonwealth - Indictable offence- Trial by jury-Appeal from Central Court of Papua-The Constitution (63 &64 Vict. c. 12), secs, 80, 122 Papua Act 1905 (No. 9 of 1905) secs. 5, 6, 43-Criminal Code (Qd.) (63 Vict. No. 9, MELBOURNE, Sched. 1), secs. 339, 604-Ordinance No. XI. of 1889 (British New Guinea), March 11, sec. 21-Ordinance No. VII. of 1902 (British New Guinea) - Ordinance No. VII. of 1907 (Papria)-Ordinance No. VIII. of 1909 (Papua), sec. 1.
The power of the Commonwealth Parliament conferred by sec. 122 of the Gavan Duffy and Constitution to make laws for the government of a territory, whether that power is exercised directly or through a subordinate legislature, is not restricted by the provision in sec. 80 of the Constitution that the trial indictment of any offence against any law of the Commonwealth shall be by jury.
By sec. 21 of Ordinance No. XI. of 1889 of British New Guinea it was provided that trials of persons accused of crimes and offences cognizable in the Central Court should be by the Chief Magistrate sitting alone. Ordinance No. VII. of 1902 of British New Guinea provided that the Queensland
wealth' include laws made either directly by the Commonwealth Parliament itself or indirectly by an authority to which the Parliament has delegated the power of making laws. The Par- liament can delegate only such powers as it has itself, and if sec. 80 applies to all laws which the Parliament makes, it also applies to all laws made by a delegated authority. The fact that law made by the Parliament is applicable to only a particular part of the Commonwealth does not make that law any the less a law of the Commonwealth. Sec. 339 of the Queensland Criminal Code of 1899, which creates the offence with which the accused was charged, derives its efficacy from the Papua Act 1905, and is therefore a law of the Commonwealth.
[ISAACS J. Ought not sec. 80 to be read as a qualification upon Chapter III. of the Constitution just as sec. 55 is to be read as a limitation upon sec. 51 (II.) ?]
It is submitted that sec. 80 should not be SO read. The language of that section is plain and unambiguous, and there is no reason for imposing any limitation upon the words "any law of the Commonwealth." A law made under sec. 122 of the Constitution is…
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
R v Bernasconi [1915] HCA 13
Case
[1915] HCA 13
Decision Date
CaseChat Overview and Summary
The case of *R v Bernasconi* involved an appeal from a conviction in the Central Court of the Territory of Papua. The appellant, Bernasconi, had been tried and convicted of an assault occasioning bodily harm without a jury. The central dispute concerned whether the appellant was entitled to a trial by jury under section 80 of the Australian Constitution, which mandates trial by jury for offences against laws of the Commonwealth. The High Court of Australia was required to determine the applicability of section 80 to laws governing territories acquired by the Commonwealth.
The legal issues before the High Court were twofold. Firstly, whether section 80 of the Constitution, which stipulates that the trial on indictment of any offence against a law of the Commonwealth shall be by jury, applied to offences committed within a territory governed by legislation enacted under section 122 of the Constitution. Secondly, if section 80 did not apply, the Court considered the merits of the appeal against the conviction itself, including the admissibility of certain evidence and the sufficiency of the evidence to support the conviction.
The High Court, in dismissing the appeal, reasoned that section 122 of the Constitution, granting the Commonwealth Parliament power to legislate for the government of territories, is not restricted by the provisions of Chapter III of the Constitution, including section 80. Griffith CJ and Isaacs J both held that section 80 applies only to laws enacted by the Commonwealth Parliament in its capacity as the legislature for the self-governing parts of the Commonwealth, and not to laws made for territories, which are considered subordinate. Therefore, the absence of a jury trial in Papua did not contravene section 80. The Court also found that the evidence admitted at trial was either not objected to or was legitimately elicited, and that the evidence, despite some exaggeration, sufficiently supported the conviction for aggravated assault.
Consequently, the appeal was dismissed. The Court treated the case as a general appeal on the merits, despite the initial reservation of specific questions of law, due to the unique circumstances of the first appeal from Papua and the absence of established procedural rules. The sentence imposed was also deemed not excessive given the nature of the offence.