Russell v Gale

[1928] HCA 21

40 C.L.R.] OF AUSTRALIA.

58T

[HIGH COURT OF AUSTRALIA.]

RUSSELL .

A ppe l l a n t

:

I n fo r m a n t ,

GALE . .

.

R e s p o n d e n t .

D e p e n d a n t ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Licensing—Liquor—Sale of “ beer ” without a licence—“ Fluid capable of producing

H. C. OF A.

intoxication”—Proof—Definition of liquor—Popular meaning—Liquor Act

1928.

1912 (N.-S.W.) {No. 42 of 1912), secs. 3, 43.

The Liquor Act 1912 (N.S.W.), sec. 3, defines “ liquor” as meaning and

S y d n e y ,

including “ wine, spirits, beer, porter, stout, ale, cider, perry, or any spirituous

Aug 9.

or fermented fluid whatever, capable of producing intoxication.”

Knox C.J.,

Held, that the W'ords “ wine, spirits, beer, porter, stout, ale, cider, perry,”

must be construed according to their ordinary popular meaning, and that and Starke J J .

the words “ capable of producing intoxication ” in the definition qualify only

the words “ any spirituous or fermented fluid whatever.”

Decision of the Supreme Court of New South Wales [Long Innes J . ) :

Ex parte Russell; Re Oale, (1928) 45 N.S.W.W-N. 56, reversed.

Appea l from the Supreme Court of New South Wales.

The appellant, Alexander Russell, a sergeant of police, charged the respondent, Harold Gale, before a Stipendiary Magistrate with having sold “ liquor, to wit beer, without holding a hcence imder the Liqitior Act No. 42 of 1912 authorizing the sale thereof.” The charge was dismissed by the magistrate on the ground that the evidence was insufficient to satisfy him that the article in question was “ beer capable of producing intoxication.”

o88 HIGH COURT

[1928.

H.C. OF A. From this decision Russell appealed to the Supreme Court of New

1928.South Wales by way of special case stated under sec. 102 of the

R u s s e l lJustices Act 1902 (N.S.W.), the question for determination being

V.

G a l e ,whether the magistrate’s decision was erroneous in point of law.

The special case was heard by Long Innes J., who answered the question submitted in the negative, affirmed the magistrate’s decision and ordered the appellant to pay the costs of the appeal: Ex parte Russell; Re Gale (1).

From the judgment of Long Innes J. the informant now, by special leave, appealed to the High Court.

Weigall K.C., S.-G. for N.S.W., and R. M. Kidston, for the appellant, were not called upon.

Street, for the respondent. The words “ capable of producing intoxication ” are attached to each of the Liquors specifically named in the definition of “ liquor ” in sec. 3 of the Liquor Act 1912. Though wine, beer, &c., usually are intoxicating liquors, that is not always the case—e.g., ginger beer and currant wine are non-intoxicating liquors. Consequently it was necessary for the prosecution to prove that the “ beer ” alleged to have been sold in this case was “ beer capable of producing intoxication,” and, as this was not done, the charge against the defendant was properly dismissed.

K nox C.J. I think that the words “ capable of producing intoxication ” in the definition of “ Hquor ” in sec. 3 of the Liquor Act No. 42 of 1912 qualify only the words “ any spirituous or fermented fluid whatever.” The other words “ wine, spirits, beer, porter, stout, ale, cider, perry,” construed according to their ordinary popular meaning, all denote fluids generally recognized as being capable of producing intoxication, and therefore, if applied to them, the words “ capable of producing intoxication ” are entirely superfluous. In my opinion the appeal should be allowed.

I saacs J. I agree.

(1) (1928) 45 N.S.W.W.N. 50.

40 C.L.R.J OF AUSTRALIA.

589

H ig g in s J. I agree that this appeal should be allowed. The

a. C. OF A.

words “ capable of producing intoxication ” used in the definition

1928.

of “ hquor ” in sec. 3 are naturally and grammatically attached,

R ttsseix

V.

not to “ wine, spirits, beer, ”&c., but to the general words “ or any G a l e .

spirituous or fermented fluid whatever ” ; and if a fluid other than

Higgins J .

wine, spirits, beer, &c., is spirituous or fermented, it must be shown to be “ capable of producing intoxication.” These latter words are by no means superfluous in their proper context. As for “ wine, spirits, beer,” &c., it is no answer to say that there is what is called “ unfermented wine ” or “ ginger beer ” : we must take such words in their ordinary vernacular sense, uti loquitur vulgus; and in the ordinary vernacular sense they refer to intoxicating drinks.

Gavan D u f f y J.

I agree that the appeal should be allowed.

Sta r k e J.

I agree that the appeal should be allowed.

Appeal allowed. Order of Long Innes J. discharged. Case remitted to the magistrate to he dealt with in accordance with the decision of this Court. Appellant to pay costs of appeal in pursuance of his under­ taking.

Sohcitor for the appellant, J. V. Tillett, Crown Sohcitor for New South Wales.

Sohcitor for the respondent, E. R. Abigail.

J. B.