Criminal Prosecution-Evidence-Unlawful association-Solicitation of con- H. C.
tributions therefor-Proof-Averments in information-Documentary evidence Nature and scope of " averments"-The Constitution (63 &64 Vict. c. 12), secs. 51 (XXXIX.), 61-Crimes Act 1914-1932 (No. 12 of 1914-No. 30 of 1932), secs. 30A 1 (a)*, 30D*, 30R*--Judiciary Act 1903-1927 (No. 6 of 1903-No. 9 of 1927), secs. 68, 79-Justices Act 1902-1931 (N.S.W.) (No. 27 of 1902-No. 17 of 1931), sec. 78 (1).
The defendant was charged under sec. 30D of the Crimes Act 1914-1932 that he was the publisher of a newspaper which contained a solicitation of contribu- tions of money for an unlawful association, namely, the Communist Party of Australia, whereby he was deemed to have solicited contributions of money for the said association. To establish that the solicitation alleged was made on behalf of the Communist Party, averments in the information were relied upon as constituting prima facie proof under sec. 30R of the Crimes Act. The information averred that the newspaper in question was the official organ of *The Crimes Act 1914-1932 pro-
among the States, or which is, or pur- vides -By sec. 30A: (1) The follow-
ports to be, affiliated with any organ- ing are hereby declared to be unlawful
ization which advocates or encourages associations, namely :-(a) Any body
any of the doctrines or practices speci- of persons, incorporated or unincor-
fied in this paragraph." By sec. 30D :- porated, which by its constitution or
1Any person who-(a) gives or propaganda or otherwise advocates or
contributes money or goods to an encourages-(i) the overthrow of the
unlawful association or (b) receives or Constitution of the Commonwealth
solicits subscriptions or contributions by revolution or sabotage ; (ii) the
of money or goods for an unlawful overthrow by force or violence of the
association, shall be guilty of an offence. established government of the Com-
Penalty Imprisonment for six months. monwealth or of a State or of any other
48 CLR 488
the Communist Party, and that the defendant published the newspaper, which contained a solicitation of contributions of money for an unlawful association, namely, the Communist Party of Australia, in the following terms Prepare for August First.-Sydney.-The August 1st conference was held in the Trades Hall on Monday 27th June, at 8 p.m. Eighty dele- gates attended, representing sixty-four organizations. decided to hold a monster anti-imperialist war demonstration on International Day against imperialist war, August 1st.
Prominent speakers from fraternal organizations and the central committee will address the demon- strators. A central campaign committee
was set up, while all delegates were given certain definite tasks and will report to conference. Central committee will meet every Monday night Hall. All working-class organizations not already represented are requested to appoint two delegates to conference, and individual workers are requested to attend and help build a mighty mass demonstration against imperialist war. Funds are urgently needed for the above task. Rush them in imme- diately.-W. H. Nugent, Campaign Secretary." It did not appear by whom…
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 Hush; Ex parte Devanny [1932] HCA 64
Case
[1932] HCA 64
Decision Date
CaseChat Overview and Summary
The case of *R v Hush; Ex parte Devanny* involved a prosecution against the defendant, Francis Harold Devanny, who was charged under section 30D of the *Crimes Act 1914-1932* with soliciting contributions of money for an unlawful association, namely the Communist Party of Australia. The alleged solicitation occurred through the publication of the newspaper *Workers' Weekly*, of which Devanny was the publisher. The prosecution relied on averments within the information, as permitted by section 30R of the *Crimes Act*, to establish that the newspaper was the official organ of the Communist Party and that it contained the offending solicitation. The High Court of Australia was required to determine the validity of this prosecution.
The central legal issues before the High Court were whether the averments and evidence presented sufficiently established the offence charged, and the proper scope and application of section 30R of the *Crimes Act*. Specifically, the Court had to consider whether the averments could, in themselves, prove the meaning of the published material and the nature of the organisation for which funds were solicited, particularly when that material was documentary evidence. Furthermore, the Court was asked to consider whether the extensive and detailed nature of the averments constituted an abuse of the process of the court, given the procedural rules governing evidence and informations in summary proceedings.
The High Court, by a majority, held that the averments and evidence did not establish the offence. The Court reasoned that while section 30R of the *Crimes Act* made averments prima facie evidence, it did not operate to establish a meaning for a written document that was contrary to the meaning the Court itself found in that document. In this instance, the Court found that the published material, while soliciting funds, did so for a "central campaign committee" and not directly for the Communist Party of Australia as an unlawful association. Additionally, the Court, per Evatt J., found that the information, with its numerous evidentiary averments, constituted an abuse of process, particularly in light of sections 68 and 79 of the *Judiciary Act 1903-1927* and section 78(1) of the *Justices Act 1902-1931* (NSW).
Consequently, the rule nisi for prohibition was made absolute, quashing the conviction and prohibiting further proceedings under the conviction. The majority found that the prosecution had failed to prove that the solicitation was for the unlawful association as required by the charge.