Christie v Ah Sheung [1906] HCA 41

H.C. oF A. 1906. a)

MELBOURNE,

June 26, 27, Griffith C.J., 'Barton ane O'Connor JJ.

HIGH COURT [1906,

(HIGH COURT OF AUSTRALIA.]

CHRISTIE - . z f di APPELLANT ; INPORMANT, AND AH SHEUNG . ; 'i i : . RESPONDENT. DEFENDANT,

ON APPEAL FROM THE COURT OF PETTY SESSIONS AT MELBOURNE, VICTORIA.

Immigration Restriction Act 1901 (No. 17 of 1901), sec. 7—Prohibited immigrant— Naturalized subject—Bvidence—Finding of Supreme Court on habeas corpus.

On the return of a hadeas corpus to L. to produce the body of A., a Chinese, L. alleged that he held A. under the authority of the Commonwealth Immigration Acts as being a prohibited immigrant. The Judge of the Supreme Court of Victoria who heard the matter found as a fact, upon the affidavits read before him, that A. was identical with a naturalized Victorian subject of the King of that name, and was domiciled in Victoria, and, holding that such Acts did not apply to him, ordered his release. On a subsequent prosecution of A. under those Acts for being a prohibited immigrant found within the Commonwealth :

Held, that such judgment was not admissible evidence upon the question of fact of the identity of A.

AppEaL from a Police Magistrate sitting as a Court of Petty Sessions at Melbourne, Victoria.

Ah Sheung, a Chinese, arrived in Melbourne on board the steamship 7sinam, and was prevented from landing by Charles Lindberg, the captain of the vessel, on the ground that he was a prohibited immigrant within the meaning of the Immigration Restriction Acts, inasmuch as he had failed to pass the dictation test. On 30th March 1906, a writ of habeas corpus issued out of

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found on the evidence before him, which was brought by fiidavit, that Ah Sheung was the same person as a naturalized ctorian subject of the King of that name, and held that for that on Ah Sheung was not an "immigrant" within the meaning 'the Immigration Restriction Acts, and he thereupon ordered the release of Ah Sheung: [Ah Shewng v. Lindberg (1).]

Subsequently Ah Sheung was prosecuted before a Police Magistrate sitting as a Court of Petty Sessions, on the information 'of John Mitchell Christie, charging that he was a prohibited immigrant found within the Commonwealth on 30th March 1906. The defence was set up that the defendant was a naturalized Victorian subject of the King, and the judgment of Cussen J. put in evidence to prove that fact. The Police Magistrate eld that such evidence was admissible and was conclusive, and efused to hear other evidence on the subject, and, following the Jaw as laid down in that judgment, he dismissed the information. _ From this decision the informant appealed to the High Court.

Bryant, for the appellant. The finding by Cussen J. was not lence of the fact that the defendant was a naturalized Vic- subject of the King, and should not have been admitted. Police Magistrate should have received oral evidence as to the question in dispute.

H. Barrett and Arthur, for the respondent. That Ah Sheung yas a naturalized Victorian subject of the King was res judicata. he question of a man's nationality is one of status. It isa right in vem. Therefore, the fact having once been determined by the 'Supreme Court, the determination is binding until upset on ppeal: See Duchess of Kingston's Case (2); Reg. v. Hutchings +

_ Bryant, in reply. Cur. adv. vult.

) (1906) V.L.R., 323; 27 A.L.T., (2) I. Sm. L.C. 11th ed., p. 751, ». (3) 6 Q.B.D., 300.

c

Supreme Court of Victoria commanding Lindberg to have the H. C. or A. dy of Ah Sheung before a Judge of that Court, together with noo the cause of his being taken and detained by Lindberg. Curist:

On the return of the writ before Cussen J., the learned Judge 4, gievxe.

H.C. oF A.

1906. -—— CuristTIE %

Aun Suevne.

HIGH COURT 1906,

GrirritH C.J Magistrate dismissing a charge against the respondent that he was a prohibited immigrant found within the Commonwealth on 30th March 1906. Before the magistrate sufficient primd facie evidence was given to prove that the respondent was a prohibited immigrant in that he had failed to pass the dictation test. The defence set up was that he was a naturalized subject of the King in Victoria. It was admitted that there was a person named Ah Sheung who was a naturalized subject of the King in Victoria, but the identity of the respondent with that person was disputed. In support of the defence a judgment of Cussen J. was tendered in evidence and was admitted, in which that learned Judge had, in a controversy between the respondent and the master of the ship by which he came to Victoria, arrived at the conclusion on the evidence then before him that the respondent was the person named in the letters of naturalization. That judgment on that fact is conclusive only as between the master of the ship and the respondent, but it is clearly inadmissible evidence of the fact as between the Commonwealth or the King and the respondent. The evidence therefore ought not to have been received. It was the duty of the magistrate to ascertain for himself whether the respondent was or was not the person named in the letters of naturalization. If on a re-hearing the magistrate comes to the conclusion on the facts that the respondent is not that person, it will be his duty to convict. Cussen J. was of opinion that, if the respondent was the person named in the letters of naturalization, he was not a prohibited immigrant. But before that question of law can arise it must be ascertained whether the respondent is that person. So far as this case is concerned, the decision of the magistrate is wrong. He con- sidered himself bound by the finding of fact of Cussen J. As to the matter of law, he would naturally follow the opinion of the learned Judge. But on the question of fact he was not bound by the judgment. That judgment was not admissible or relevant as to the question of identity, and the magistrate ought not to have acted upon it. The case must, therefore, go back to the magistrate for re-hearing.

This is an appeal from the decision of a Police

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Appeal allowed. Order absolute. Case ve- H. ©. oF A.

mitted to the magistrate for re-hearing. ee — Curistix

itor, for appellant, Charles Powers, Crown Solicitor for the ne suae di

Bae (HIGH COURT OF AUSTRALIA.] : APPELLANT ; PLAINTIFF, AND HOMPSON axp SEARSON. . —._—._- RESPONDENTS. _ DEFENDANTS, ' ON APPEAL FROM THE SUPREME COURT OF Gs SOUTH AUSTRALIA. (Homserc J.) case turned solely on questions of fact. H.C. or A. judgment of the Supreme Court of South Australia (2nd 1905. 1905) was affirmed. bags ApmLarDE, Nor. 3. Appeal dismissed with costs. Griffith ©.J., - Barton and citor, for appellant, Nesbit. Coney