R v Martin; Ex parte Wawn

This case concerned an appeal to the High Court of Australia following the conviction of Victor Aubrey Wawn in New South Wales for accepting money in respect of the purchase of a ticket in a foreign lottery, contrary to section 21 of the *Lotteries and Art Unions Act 1901-1929* (N.S.W.). Wawn, acting as an agent for a Tasmanian company, had accepted money in Sydney for the purpose of purchasing and forwarding a ticket in a lottery lawfully conducted in Tasmania. The applicant sought a writ of prohibition on the grounds that the New South Wales legislation, in prohibiting such transactions, contravened section 92 of the Australian Constitution, which guarantees freedom of inter-State trade, commerce, and intercourse.

The central legal issue before the High Court was whether section 21 of the *Lotteries and Art Unions Act* was rendered invalid by section 92 of the Constitution, specifically in its application to transactions of an inter-State character. The applicant argued that the acceptance of money for transmission to another State for the purchase of a lottery ticket constituted inter-State trade, commerce, or intercourse, and was therefore protected from prohibition by the Constitution. The State of New South Wales, intervening in the proceedings, contended that the legislation was a uniform suppression of lotteries and did not discriminate against inter-State commerce, and that the case was indistinguishable from a previous decision, *R. v. Connare; Ex parte Wawn*.

A majority of the High Court, comprising Starke, Dixon, Evatt, and McTiernan JJ., held that section 21 of the Act did not contravene section 92 of the Constitution and that Wawn had been properly convicted. Starke, Evatt, and McTiernan JJ. found the case to be governed by the principles established in *R. v. Connare; Ex parte Wawn*. Dixon J., while acknowledging the inter-State nature of the transaction, reasoned that section 92 does not protect a transaction from a law whose application is independent of any characteristic that defines trade, commerce, or intercourse, or any element of inter-State movement. He concluded that the New South Wales Act prohibited lotteries based on their aleatory nature, not on any aspect of commerce or inter-State movement, and therefore operated validly. Latham C.J. and Rich J. dissented, adhering to their previous reasoning in *R. v. Connare*. The Court dismissed the appeal and discharged the order nisi, with no order made as to the intervener's costs.