R v Hush; Ex parte Devanny

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.