Preston v Donohoe [1906] HCA 43

Preston v Donohoe [1906] HCA 43

The statutory presumption in s3(k) applies to prosecutions against a ship's master under s9, such that when a crew member is absent at muster and the officer forms the requisite opinion, that person is deemed a prohibited immigrant; the master is liable. Defects in the information concerning time and class are curable by amendment and did not cause prejudice. There is no repugnancy with the Imperial Merchant Shipping Act; both regimes can operate concurrently.

Parties
Applicant: C. F. Preston; Applicant: E. Gordon; Respondent: Donohoe; Respondent: The Crown
Jurisdiction
Australia
Judgment Date
29 June 1906
Procedural Posture
Appeal (prohibition Application) / Judgment After Hearing Motion to Make Rule Nisi Absolute
Outcome
Appeal dismissed; conviction affirmed.
Legal Topics
Prohibited Immigrants, Dictation Test, Liability of Shipowners, Evidentiary Presumptions, Defective Informations, Statutory Construction
Immigration Law Criminal Law Statutory Interpretation Prohibited Immigrants Dictation Test Liability of Shipowners Evidentiary Presumptions Defective Informations +1 more

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Parties

C. F. Preston

Applicant

E. Gordon

Applicant

Donohoe

Respondent

The Crown

Respondent

Procedural Posture

Appeal (prohibition Application) / Judgment After Hearing Motion to Make Rule Nisi Absolute

Legal Issues

  1. 1 Whether absence of a crew member at muster makes them a prohibited immigrant per Immigration Restriction Act 1901 s3(k)
  2. 2 Whether the master's liability is engaged under s9 for such absence
  3. 3 Whether defect in information (failure to specify time, nature of prohibited immigrant) is fatal

Ratio Decidendi

The statutory presumption in s3(k) applies to prosecutions against a ship's master under s9, such that when a crew member is absent at muster and the officer forms the requisite opinion, that person is deemed a prohibited immigrant; the master is liable. Defects in the information concerning time and class are curable by amendment and did not cause prejudice. There is no repugnancy with the Imperial Merchant Shipping Act; both regimes can operate concurrently.

Court Disposition

Appeal dismissed; conviction affirmed.

Orders

  • Appeals dismissed.