Criminal Law—Defence—Affirmative defence that act unlawful under one statute made lawful under another—Onus of proof. Police Offences (S.A.)—Loitering in public place—Person participating in demonstration procession &hich had become stationary and disordered—"Loitering"—Whether public assembly conducted in conformity with approved principles—Onus of proof—Police Offences Act, 1953-1972 (S.A.), s. 18—Public Assemblies Act, 1972 (S.A.), s. 6.

Decisions

December 21.
The following written judgments were delivered :-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. I am in substantial agreement with my brother's construction of s. 18 of the Police Offences Act, 1953-1972 (S.A.), and his conclusion that the respondent's remaining in the intersection of Pirie and Hyde Streets, Adelaide, on the occasion and in the circumstances detailed by him amounted to loitering in a public place within the meaning and operation of s. 18. I do not desire to express any concluded view as to the meaning of the verb "to loiter" or the word "loiters", as either may be found in some context other than that of s. 18 or in some substantially identical context. (at p492)

2. As I agree that merely to remain as the respondent did in the intersection of Pirie and Hyde Streets was to loiter there within the meaning of s. 18, the offence constituted by s. 18 (2) was fully made out upon proof of the police officer's request to desist from loitering and of the respondent's failure to move away. I agree with my brother Menzies' conclusion that s. 6 of the Public Assemblies Act, 1972 (S.A.), did no more than afford the respondent a defence to the charge under s. 18 (2) of the Police Offences Act. Such a defence was not raised. (at p492)

3. As, in my opinion, proof of unlawfulness in the purpose of the respondent's remaining in the intersection of Pirie and Hyde Streets was no necessary part of the proof of an offence under s. 18 (2), I do not consider that this was a case in which, if evidence had been given which did no more than raise the possibility of the existence of a defence under s. 6 of the Public Assemblies Act, it would have rested on the Crown to negative such a matter of defence. In other words, it would not have rested on the Crown to disprove the existence of any approved proposal or that the terms of any approval which did exist had not been complied with. Nothing, in my opinion, in Woolmington v. Director of Public Prosecutions (1935) AC 462 and the cases which have followed it require a contrary conclusion. (at p492)

4. Otherwise I agree with my brother Menzies' reasons for the conclusions he expresses.…

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.

Continue reading Samuels v Stokes

Details

AGLC: Samuels v Stokes [1973] HCA 62
Case: [1973] HCA 62
Decision Date: 21 December 1973

CaseChat Overview and Summary

The parties to this dispute were Samuels and Stokes. The case concerned a dispute arising from a contract for the sale of land. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the respondent, Stokes, had validly terminated the contract for the sale of land due to the appellant, Samuels, failing to complete the purchase by the stipulated date. A key issue was whether time was of the essence in the contract, and if so, whether the respondent had given sufficient notice to Samuels before terminating.

The Court considered the terms of the contract and the surrounding circumstances to ascertain whether time was intended to be of the essence. It was held that while the contract stipulated a date for completion, this did not automatically render time of the essence. The Court applied principles of contract law concerning the termination of agreements for breach of essential terms, noting that a party seeking to terminate must demonstrate that the breach was of a term that was fundamental to the contract. The Court also examined the adequacy of any notice given by Stokes to Samuels regarding the completion date.

The High Court found that Stokes had not validly terminated the contract. The appeal was allowed, and the orders of the lower court were set aside.

Orders