Gabriel v Ah Mook [1924] HCA 42

Gabriel v Ah Mook [1924] HCA 42

Where the prosecution does not complete proof of all facts necessary for conviction and the defendant provides no personal evidence to the contrary, the statutory averment is to be deemed proved under sec. 5(3) of the Immigration Act 1901-1920; therefore, the Magistrate erred in dismissing the complaint.

Parties
Appellant, Informant: Frederick William Edmund Gabriel; Respondent, Defendant: Ah Mook
Jurisdiction
Australia
Judgment Date
06 November 1924
Procedural Posture
Appeal / Appeal From a Court of Summary Jurisdiction of South Australia; Decision of Stipendiary Magistrate
Outcome
Appeal allowed.
Legal Topics
Prohibited Immigrant, Dictation Test, Burden of Proof, Evidence, Averment
Immigration Prohibited Immigrant Dictation Test Burden of Proof Evidence Averment

Case Brief

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Parties

Frederick William Edmund Gabriel

Appellant, Informant

Ah Mook

Respondent, Defendant

Procedural Posture

Appeal / Appeal From a Court of Summary Jurisdiction of South Australia; Decision of Stipendiary Magistrate

Legal Issues

  1. 1 Whether, under sec. 5(3) of the Immigration Act 1901-1920, the averment that Ah Mook entered the Commonwealth within three years before failing to pass the dictation test must be deemed proven absent proof to the contrary by personal evidence of the defendant

Ratio Decidendi

Where the prosecution does not complete proof of all facts necessary for conviction and the defendant provides no personal evidence to the contrary, the statutory averment is to be deemed proved under sec. 5(3) of the Immigration Act 1901-1920; therefore, the Magistrate erred in dismissing the complaint.

Court Disposition

Appeal allowed.

Orders

  • Order of dismissal set aside.
  • Appellant to pay costs of appeal in accordance with his undertaking.