R v Goldie; Ex parte Picklum - [1937] HCA 65

GOLDIE AND ANOTHER;

Ex PARTE PICKLUM. Immigration-Prohibited immigrant-" Found within the Commonwealth "-Trans-

portation within the Commonwealth--Aider and abettor-OffenceImmigration Act 1901-1935 (No. 17 of 1901-No. 13 of 1935), secs. 7, 9A (1), (2), 9p-Crimes Act 1914-1932 (No. 12 of 1914-No. 30 of 1932), sec. 5. Aug. 30, 31;

P. was charged upon an information framed under sec. 5 of the Crimes Act 1914-1932 that on 2nd July 1937 at divers places in New South Wales he was knowingly concerned in the commission of an offence by W. in that W., being a prohibited immigrant, was, contrary to the Immigration Act 1901-1935, found showed that W., a Chinese, was a stowaway on the S.S. Willandra and that he came ashore at night with other Chinese, at Geelong, Victoria. That same night P., who in pursuance of an arrangement had proceeded to Geelong, picked up W. and the other Chinese, who he knew had come off the S.S. Willandra, and arranged for them and himself to be driven in a car into New South Wales. Whilst being driven to Botany the car was stopped at Burwood, New South Wales, by the police, and W. failed to pass a dictation test adminis- tered to him by the informant, an officer of customs.

Held, by Latham C.J., Dixon and McTiernan JJ. (Starke and Evatt JJ. dissenting), that P. was not guilty of the offence charged, because the evidence did not establish that at the time and places charged P. was concerned in the entry of W. into Australia or otherwise in the fact of his presence within its

ORDER NISI for prohibition.

Gordon Picklum of Alexandria, Sydney, New South Wales, was charged before Mr. Goldie, a stipendiary magistrate, upon an informa- tion framed under sec. 5 of the Crimes Act 1914-1932, by Herbert

59 CLR 255

Bede Cody, an officer of customs, that " on or about the second day of July 1937, at divers places in the said State you were knowingly concerned in the commission of an offence against a law of the Commonwealth, namely, an offence committed by one Gee Kee Way in that the said Gee Kee Way being a prohibited immigrant was, contrary to the

Immigration Act 1901-1935, being a law of the Commonwealth, found in the Commonwealth in contravention or evasion of the said Act, to wit, at Burwood in the said State on the second day of July 1937."

Picklum was convicted and sentenced to imprisonment for a period of two months.

From that conviction he appealed to the High Court by way of an order nisi for a writ of prohibition directed to the magistrate and the informant.

Further material facts appear in the judgments hereunder. The respondent magistrate, Mr. Goldie, did not appear on the hearing of the application although served with notice thereof.

A. R. Taylor (with him Allen), for the applicant. Sec. 5 of the Crimes Act 1914-1932 does not itself create any substantive offence. If sec. 5 purports…

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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Details

Case: [1937] HCA 65
Decision Date: 26 November 1937

CaseChat Overview and Summary

Gordon Picklum was charged before a stipendiary magistrate with being knowingly concerned in the commission of an offence by Gee Kee Way, a prohibited immigrant, who was allegedly found within the Commonwealth in contravention of the Immigration Act 1901-1935. The alleged offence occurred on 2 July 1937, at divers places in New South Wales. Picklum was convicted and appealed to the High Court by way of an order nisi for a writ of prohibition.

The legal issues before the High Court were whether the evidence established that Picklum was knowingly concerned in Gee Kee Way being found within the Commonwealth in contravention of the Immigration Act, and whether the Immigration Act and Crimes Act, as applied, were within the legislative powers of the Commonwealth Parliament. Specifically, the court considered the meaning of "found within the Commonwealth" and whether Picklum's actions constituted aiding or abetting the commission of the principal offence.

A majority of the High Court, comprising Latham C.J., Dixon and McTiernan JJ., held that Picklum was not guilty of the offence charged. Their reasoning was that the evidence did not establish that Picklum was concerned in Gee Kee Way's entry into Australia or his presence within the Commonwealth. While Picklum was involved in transporting Gee Kee Way within New South Wales, this transportation occurred after Gee Kee Way was already within the Commonwealth. The court concluded that being concerned in a prohibited immigrant's movement within the Commonwealth did not equate to being concerned in their being found within the Commonwealth, as required by the charge. Starke J. dissented, finding that Picklum's actions in assisting Gee Kee Way to enter and be present in the Commonwealth at Burwood meant he was knowingly concerned in the offence. Evatt J. also dissented, believing the evidence supported the conviction.

The majority allowed the appeal and quashed the conviction.

Orders