oun Yo. Is { 44 HL J. Green, Gort, Print, Mab, ae eee IN THE HIGH COURT OF AUSTRALIA. Tea Mg REASONS FOR JUDGMENT. FERRY _ Vv. = BASLEY. r ~ yopeamwe. ° RICH AcCods This is an appeal by way of Order Nist to Review granted by ir Justice Starke on Sth May 1941 from the decision of the Court of Petty Seesions,Perth, whereby the appellant was convieted and fined on a charge that she on the 2nd April 1941 et West Perth did without lawful excuse have in her possession a Girqular headed "warning" hut undated advocating unlew- ful dnotrines contrary to Regulation; 7 (a) National segurity(subversive ; Associgtions) Regulations Nou, 109 aad 152 of 1940 National Seoubity Act 1939 see, 10 (&) and sontenaed to pay a fine of 250 with £4/7/- coats. The ruke aisi was granted on two groutds t+ (1) Taat the doouent or warning marked *a" referred to in the tronseript of progecdings batore the Stiptadkery Magistrate did not advocate snyunlawful avateine oF any dogtring or principle whatevever 'prejudicial to the Comuonwéalth or the efficient pro- seoution of the war ¢ontrary to National Seourity Regulations 1940 Wo,209 as smended by 1940 Mos 162, {2) That there was no evidense or no suffidient evidence that the Appellant hed in her possession the anid dogument marked "A". 'The evidenge in the gase before the Magtetraté was thatthe Police . nade a searoh at the appellant's premiags and there found a moter car. In answer to o question whether the moter cay was her property,she replied "It ie» X will get you the keys. Aoparentiy, the keys gould not be found, the @ar was forobbly openéd. The car was searched in the presence of the accus- ed and her husband and 0 book and two typewritten documents wore found in it. The Police Constable showed the do¢unents te the appellant and asked her 'are these your property?" She replied "Yes", One of the documents was Exhibit A. Tha Polige Uonstable also asked the husband in her presenée if Exhibit 4 was his, He replied "No and disé@laimed any kmowledge of it. 'The appellant also gald that she hed typed the doguments herself. No evidence was given by or ou behalf of the appellant. On this evidense the Magistrate convicted the appellant. The appeal before this Court. was argued on the two grounds stated im the order nisi. On behalf of the appellent My Hill put up a valiant fight in a hopeless cause. In support of the first ground he ¢ontended there was no advecasy and no doetrine or principle advoeated within the meaning of the vegulation. a perugal of Exhibit A shows that it was intended to be communi~ fated tnsued o tranteitted by gubtie and seeset moans for the purpose of as causing industriel unyest and stirring up strife. Te doeunent tw question gives instrustion (teashing) and direstions in aid of these pui- poues. and it advances argusents ond opinions in favour of divest action. This constitutes advogating doctrines or pringiples within the meaning of tha regulations. Mr Hili's argument in support of the seeond ground was that the appellant was not in possession of Exhthit A and he relied on Moors ov. Burke,26 CLR. 2653 But the facts in that case are xttwketiog altogether different from those in the pregent case. The facts before the Magistrate are that the appellant was the owner of Exhibit A and had goutrol of it. It was in the motor ear belonging to her of which she gahd she had the keys. 'these facte warranted the finding by the Magis- trate that the document was in the appellant's possession within the mean~: ing of regulation f(a). Without attempting any exhaustive or exclusive definition I am ef opinion that the word "pess¢ssion" in the sontext in Which it is used is satisfied if e person ie in effegtive control of the property ox article in question go thet he dan get it into his hands whenever he wishes, Agtual wanual possession is not essential, In gases "when possession is doubtful 14 is attashed by law to the title" mumiiny «Ys Maxgrett»1804 2 Q.B, 16 at p.28y Butler ov. ewla,1052 { VeleR, 62 at pe66. Have the defendant admitted that the doqument was hey property. For these reasons I am of epinion that the rule nisi should be @igaharged with gosta ingluding the sosts of and ingidentel to the application for the rule nisi, BEGRY V_BASLEY, JUDGMENT. STARKE J. I agree, But I desire to mention two matters, There was some evidence before the Magistrate that a sian named Simpson, who resided apjarently with the appeliant and her husband, had been appointed an Organiser of the Communist Party and had in his possession another docusent which contained, inter alia, the same statements as were contained in the document mentioned in the charge aguinst the appellant. The Court pays no attention to these matters. They are not relevant to any offence with which the appeliant was charged. Then as regards possession, Jothing we have said depurts in any way from iloors v Burke (26 C.L.R, 265). In this Case there was, in my opinion, ampie evidence to warrant the Magistrate's finding that the document mentioned in the charge was in the appellant's possession, that is, in her power and control, It is quite unnecessury to express any opinion upon tue question mf whether possession oi the document should be presumed from aer ownership of it; a person might have the right to possession of a document and still not have possession of it, r { } i EILEEW VIOLET PERRY v. WILLIAM THOMAS BASLEY. SUDGYENT, WILLIAMS J. I agree that the order nisi should bé discharged, The document or warning marked Exhibit A. contained plain evidence that it was intended to be cirdulated amongst the appellant's confederates and it is therefore @ circular or pamphlet within the meaning of the regulation. The first ground taken in the order nisi must fail. The document advocates the unlawful doctrineg because it recommends and urges these confederates to provoke industrial unrest amongst the masses by subtle means; and so advocatesa doctrine or teaching which is unlawful because strikes and other results of such unrest are prejudickel to the defence of the Commonwealth and the efficient prosecution of the war. As to the second ground there was ample evidence on which the Magistrate could find that the document was in the appellant's possession. It was admittedly her property and was just as much under her control as if it was in her physical possession because it was in a car which she claimed to be hers and to which she had access at will.