R v Wilkinson; Brazell, Garlick and Coy, Ex p [1952] HCA 6

High Court of Australia Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. R v Wilkinson; Brazell, Garlick and Coy, Ex p [1952] HCA 6

ORDER Order allowed in each appeal as follows: Appeal allowed with costs. Order absolute. Conviction set aside. In lieu thereof information dismissed with ten guineas costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 7, 1952 Dixon, McTiernan, Fullagar and Kitto JJ.

These are appeals from convictions by a Court of Petty Sessions exercising Federal jurisdiction. Federal jurisdiction was exercised because the defendants, among other defences, set up s. 92 of the Constitution as an answer to the prosecutions. There are three defendants, who are the appellants, and three informations. The informations were for offences under s. 11 (3) of the Marketing of Primary Products Act 1927-1940. The material part of that sub-section provides that every producer (an expression which by force of various definitions covers a grower of potatoes declared to be a commodity) who, except in the course of trade or commerce between the States sells or disposes of or delivers any commodity, in respect of which a board has been appointed, to a person other than the board, and every person other than the board who, except as aforesaid, buys accepts or receives any such commodity from a producer shall be guilty of an offence.

Potatoes have been declared a commodity and a board has been appointed with respect to them. The defendant Brazell grows potatoes near Dorrigo in New South Wales. The defendants Coy and Garlick are partners who carry on business at Dorrigo as produce agents. The offence of which Brazell was convicted was disposing of certain potatoes contrary to the sub-section. The offence of which Coy and Garlick were each convicted was receiving the same potatoes from Brazell, a producer, contrary to the sub-section. The offences were laid as taking place at Dorrigo on 10th June 1950.