Dowling v Bowie [1952] HCA 63

High Court of Australia Dixon C.J. Williams, Fullagar, Kitto and Taylor JJ. Dowling v Bowie [1952] HCA 63

ORDER Leave to appeal granted. Application to be treated as an appeal. Appeal allowed. Order of the Supreme Court of the Northern Territory discharged. In lieu thereof order that the conviction be quashed.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 19 Dixon C.J.

This was an application for leave to appeal made pursuant to s. 21 of the Supreme Court Ordinance 1911-1936 N.T.. Leave was sought to appeal from an order of the Supreme Court of the Northern Territory dismissing an appeal from a conviction by a Court of Summary Jurisdiction. The matter was argued as if it were a substantive appeal and it was agreed that we should now dispose of it finally on that footing. The appellant as he may be called was convicted under s. 141 of the Licensing Ordinance 1939-1952 N.T. for that he did sell liquor to James Shannon, a person who is a half-caste within the meaning and for the purposes of the Aboriginals Ordinance 1918-1947 N.T.. The conviction follows the material part of sub-s. (1) of s. 141 of the Licensing Ordinance which makes it an element of the offence that the person is a half-caste within the meaning and for the purposes of the Aboriginals Ordinance. The appellant objects that it was incumbent upon the informant, who is the respondent here, to prove each and every part of this element in the offence and that the proof failed that James Shannon was a half-caste within the meaning and for the purposes of the Aboriginals Ordinance. Section 3 of the Aboriginals Ordinance defines "half-caste" to mean any person who is the offspring of parents one but not both of whom is an aboriginal and to include any person one of whose parents is a half-caste. There is in the same section an artificial definition of the word "aboriginal" of considerable length. It extends the term to include half-castes in various circumstances. For example, it extends to a female half-caste not legally married to a person who is substantially of European origin or descent and living with her as her husband. Again it covers a half-caste whose age exceeds twenty-one years and who, in the opinion of the Chief Protector of Aboriginals, is incapable of managing his own affairs and is declared by the Chief Protector to be subject to the Ordinance. The question is not whether it was shown that James Shannon was the offspring of parents one of whom was an aboriginal within this long definition. The objection is that it was not made to appear that under another provision now to be mentioned he had not been taken out of the description. That provision is s. 3A, sub-s. (1) of which enables the Chief Protector, by notice in the Gazette , to declare that any person shall not be deemed to be an aboriginal or a half-caste as the case may be for the purposes of the Aboriginals Ordinance or of any provision thereof. Sub-section (2) provides that upon the publication of any such notice in the Gazette , the person named in the notice shall, to the extent specified therein, cease to be a person to whom the definitions of aboriginal and half-caste in s. 3 apply. Sub-section (3) then empowers the Chief Protector to revoke such a declaration with reference to any particular person. The appellant maintains that to establish the case against him it was necessary for the respondent as informant to offer some affirmative evidence excluding the possibility that James Shannon had been named in a declaration published in the Gazette and unrevoked. Otherwise the respondent would not prove that Shannon was a half-caste within the meaning, and for the purposes of, the Aboriginals Ordinance. The respondent on the other hand contends that, if Shannon were so named, the burden of proving it would lie on the appellant as defendant. The onus of proof of such a fact, says the respondent, would lie upon the defendant because it is a special matter amounting to the exception of a particular individual or individuals from the operation of a general rule.