Martin v Osborne [1936] HCA 23

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en Sie" . Ay 'chips ype Lid (988) 3] 3 VR (HIGH COURT OF AUSTRALIA.] MARTIN F . i 'i : B . . APPELLANT ; Inrormant, AND OSBORNE. " i . - . . RESPONDENT. DEFENDANT, ON APPEAL FROM THE SUPREME COURT OF VICTORIA. Evidence—Similar facts—Relerance—Admissibility—Person charged with driving H,0, or A. commercial vehicle while unlicensed—Proof that passengers. were carried for 1936, reward—Proof of acts on preceding days—Carriage of passengers proved—No = ~~

evidence of payment—Transport Regulation Act 1933 (Vict.) (No. 4198), secs. 5, MELBOURNE,

45, 47.

The respondent was charged with driving a commercial passenger vehicle without its being licensed under the Transport Regulation Act 1933. In order to prove that the passengers on the day in question were being carried for reward the informant, on whom the onus of proving this fact lay, tendered evidence of the conduct of the defendant in carrying passengers between the same termini on the two preceding days. There was no direct evidence on any occasion of the payment of any money by the passengers.

Held that the evidence was admissible'to show that the defendant was 'operating the car regularly for the carriage of passengers between the two termini and (Starke J. dissenting) was sufficient to make it improbable that the passengers were not carried for reward.

Per Evatt J. :—Where a question in issue is whether, on a particular occasion, the proved acts of a party were accompanied by the performance by such party of a further act, it is permissible to show that such party was, at or about the time in question, engaged in a special kind of business, line of conduct, or manner of living according to the exigencies of which the proved acts would ordinarily be accompanied by the performance of the further act in issue so as to constitute a typical instance of the business, line of conduct or manner of living in which the party was so engaged. Provided that the business, line 'of conduct or manner of living is of such a character as to render it very highly