3 CLR.) OF AUSTRALIA. 83 (HIGH COURT OF AUSTRALIA.] WILCOX . . . 4 F APPELLANT ; AND DONOHOE C c F t 3 x . RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Beer Excise Act 1901 (No. 7 of 1901), secs. 4, 8—Excise Tariff Schedule—Making W,C, or A. beer without a licence—Liquor below dutiable standard when brewed—Subsequent 1905. smerease in alcoholic strength—Not part of process of making. aay Sypvey, Appeals to High Court—Special leave—Supreme Court exereising federal jurisdiction <4 96, 97 —Less than appealable amount involved—A ppeals from State Courts exercising original federal jurisdiction—Judiciary Act 1903 (No. 6 of 1903), secs. 35, 38, Gritith C.F, 39. O'Connor JJ. The appellant, not having a brewer's licence, brewed a liquor containing a lower percentage of proof spirit than the standard fixed for excisable beer by the Bxcise Tariff, 1902, and the liquor having been bottled and stored on the appellant's premises, the contents of some bottles were subsequently found, on analysis by the Customs authorities, to have increased in alcoholic strength to @ point above the standard. 'The increase could only be accounted for as the result of a secondary fermentation in the bottles, which was no part of the process of brewing, and which every reasonable precaution had been taken to prevent. Held, that the maker was not guilty of the offence of making beer without a licence, within the meaning of sec. 8 of the Beer xcise Act 1901. The appellant was prosecuted by the Customs authorities in a Court of summary jurisdiction under sec. 134 (c) of the Hacise Act 1901, and was con- victed, and fined. He obtained a rule nisi for a statutory prohibition from the Supreme Court. The matter then came before a Judge in Chambers, exercising the powers of the Supreme Court under sec. 114 of the Justices Act 1902 (N.S.W.), who, without going into the merits, discharged the rule on the ground that he had no jurisdiction to entertain an application for a prohibition against a Court exercising federal jurisdiction. Held, that the Judge had jurisdiction, inasmuch as the appellant was entitled under sec. 137 of the Hxcise Act 1901, to apply to the Supreme Court for a statutory prohibition, instead of appealing direct to the High Court under sec. 35 of the Judiciary Act 1903. H.C. oF A. 1905. WILcox v. Dononor. HIGH COURT The writ of prohibition referred to in sec. 38 of the Judiciary Act 190, which confers on the High Court exclusive jurisdiction in ' matters in whi a writ of mandamus or prohibition is sought against an officer of the Com wealth or a federal Court" is the prerogative writ for the control by t Superior Courts of inferior Courts exceeding their jurisdiction, and does no include the statutory writ of prohibition in New South Wales, which is reality a form of appeal. Ex parte Stelling, 1904, 4 8.R. (N.S.W.), 201, over-ruled on this point, Held, further, that, as the amount involved was less than the appealabl amount, special leave to appeal to the High Court was necessary, but th under the circumstances it should be granted as a matter of course. The words Court or a Judge of a State" in sec. 39, sub-sec. 2 (b) of the Judiciary Act 1903 do not include a Judge sitting in Chambers, exercising th jurisdiction of the Supreme Court. Decision of Pring J., 30th June, 1905, discharging rule nisi for a prohibiti reversed. AppraL from a decision of Pring J. sitting in Chambers. In this case the appellant was prosecuted by the respondent, a Customs officer, for making beer without being licensed to so, under the Beer Excise Act 1901, contrary to the provisions sec. 8 of that Act. The proceedings were by information befor a police magistrate, taken under sec. 134, sub-sec. (¢) of the Excise Act 1901. The magistrate convicted the appellant, and imposed a fine of £5 and costs. The appellant then obtained from the Supreme Court a rule nisi fora prohibition, but on the matter coming before Pring J., sitting in Chambers, in the exercise of the powers of the Supreme Court, under sec. 114 of the Justices Act 1902, the rule was discharged. The learned Judge consider that he was bound by the decision of the Full Court in Hx parte Stelling (1), that the State Court had no jurisdiction to entertain an application for a prohibition to a Court exercising federal jurisdiction. He therefore declined to consider the appeal on the merits. 4 From this decision the present appeal was brought, without leave. " The facts are stated in the judgment of Grifith C.J. Blaclket, for the respondent, took the preliminary objection thai the decision appealed from was one from which no appeal lay (1) (1904) 4.8.R. (N.S. W.}, 201. 3 CLR.) OF AUSTRALIA. without special leave, and that special leave had not been H.C. or A obtained. Less than £300 was involved. Sec. 35 of the Judiciary Act 1903 is exhaustive, and that does not give an appeal in such eases except by special leave. [He referred to Parkin v. James (1)] See. 39 must be read subject to sec. 35. The appellant might have appealed from the magistrate direct to the High Court, but having chosen to appeal to the Supreme Court, under sec. 137 of the Ewcise Act 1901, he can carry the matter no further without special leave. The magistrate was exercising original federal jurisdiction. Pring J. was exercising the jurisdiction of the Supreme Court under the Justices Act 1902, sec. 114. In that capacity he is not a "Court or Judge" within the meaning of sec. 39 sub-sec. 2 (a) of the Judiciary Act 1903. Special leave being necessary, this was not a case in which it would have been granted if asked for. There was a mere question of fact to be decided. [GrirritH C.J.—That would have been an excellent reason for refusing special leave to appeal if the learned Judge had really decided the matter. In reality he did not decide it on the merits, because he was of the opinion that he had no jurisdiction to entertain it. The appellant was entitled to appeal on the merits to the Judge, and, by special leave, to the High Court from him.] It was only a question of fact that would have been decided if it had been heard. The appellant has made his election and should abide by the result. Armstrong, (with him Pitt), for the appellant. This is an appeal from one Judge of the High Court to the Full Court: sec. 34 of the Judiciary Act 1900. Sec. 35 only applies to judgments from which there was an appeal to the Queen in Council. The decision appealed from does not come within that class. There would have been no appeal to the Privy Council except by special leave. In any case sec. 39 sub-sec. 2 (b) applies, and there is an appeal to the High Court as of right. This was a decision of a tribunal from which an appeal lay to the Supreme Court, not only by (1) 2C.L.R., 315, 1905. aay, Wicox w Donouoer. H. C. or A. 1905. Se Witcox v Doxonor. HIGH COURT virtue of the Justices Act 1902, but at common law: Ex park Baillie (1); Ex parte Pilley (2). [He referred also to sec. 20 of the Judiciary Act 1903.) See. 137 of the Excise Act 1901 completely answers Ex pan Stelling (8). f If the Court is of the opinion that it is necessary, I ask noy for special leave. The appellant has never had his appeal heard and, so long as Ex parte Stelling stands, he is debarred having it heard by the Supreme Court. Blacket in reply. GrirritH C.J. The point taken by Mr. Blacket is an important one, and has been mooted once or twice already. It will, therefor be just as well for us to give a definite statement of our opi on the point now. This is in form an appeal from a decision of. Pring J., sitting in Chambers. The case of Parkin v. James ( decided that an appeal lies from him, as a Judge of the Sup Court exercising the jurisdiction of the Supreme Court, to Court. But that right is controlled by the Judiciary Act 19 The Judge's decision is a decision of the Supreme Court exerci federal jurisdiction. Sec. 35 (1) provides that:—" The appella j jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgment whether given or pronounced in the exercise of federal jurisdic tion or otherwise and to no others, namely :' Then paragraph (a) (1) prescribes the condition that the judgment must be one "given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of three hundred pounds: or (2) " which involves directly or indirectly any claim, demand, 0 question, to or respecting any property or any civil right amount- ing to or of the value of three hundred pounds; or (3) affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptey or insolvency." This case does not fa (1) 5S.C.R. (N.S. W.), 17. (3) (1904) 4 S.R. (N.S.W.), 201. (2) (1903) 3 S.R. (N.S.W.), 8. (4) 2C.L.R., 315. a 3 C.LR.]} OF AUSTRALIA. within any of those categories. Then paragraph (b) provides for 4. ©. or A. an appeal from :—" Any judgment, whether final or interlocutory, and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal" ; and (c) "any judgment of the Supreme Court of a State given or pro- nounced in the exercise of federal jurisdiction in a matter pending in the High Court." The result is that an appeal does not lie as of right from the Supreme Court of a State exercising federal jurisdic- tion any more than when it is exercising its ordinary jurisdiction. Tn any matter in which less than £300 is involved special leave to appeal must be obtained from this Court. The question is whether that section is controlled by sec. 39 which confers federal jurisdiction on State Courts, and provides, inter alia, sec. 39 (2) (b) that "whenever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court." Now, in one sense, this applies to the present case, because Pring J. was a Judge of a State,and an appeal lies from his decision to the Supreme Court of the State. But it is clear that the "Court or Judge" referred to means some Court or Judge other than the Supreme Court, and does not apply to the case of a Judge exercising the powers of the Supreme Court or to the Supreme Court otherwise constituted. Therefore paragraph (b) does not apply here, and there is no appeal from the decision in question except by special leave. Under these circumstances we are asked for special leave. If the matter had been a trivial one, very likely we should have refused to grant it. But as a matter of fact His Honor declined jurisdiction. It is clear also that the appellant was entitled to have his appeal heard, and to have it heard by Pring J., unless there was some statutory restriction. But the Judge having refused to entertain the appeal, the appellant is entitled to some redress. He was strictly entitled to appeal direct to this Court, but he adopted the more expeditious process of appeal by special case under the Justices Act 1902. Under these circumstances leave to appeal should be almost a matter of course. Otherwise the appellant loses the appeal given to him by the Constitution. We might content ourselves with declaring that Pring J. had jurisdiction to hear the matter, and remitting it to him with that 1905. os Wutcox v. Dononor. H.C. oF A. expression of our opinion. Certainly we are bound eith 1905. — Wixcox v Donouor. HIGH COURT hear the appeal ourselves or to remit it to the learned Judge. It has become necessary to refer to the case of Ex parte Stelli (1), upon which the decision of the learned Judge proceeded. judgment in that case was founded upon sec. 38 (e) of the Judicia Act 1903 which provides that the High Court shall have exelusiy jurisdiction in " matters in which a writ of mandamus or prohil tion is sought against an officer of the Commonwealth or a fe Court." The learned Judge appeared to have considered that th 7 word " prohibition" was there used in such a sense as to includ a form of appeal in New South Wales which goes by that ni But I have no doubt that in the Judiciary Act 1903 the writ of pro hibition referred to is the prerogative writ by which the Superior Courts control inferior Courts from going beyond their jurisdiction and does not include the writ which is called by that name in New South Wales, but which is in reality only a form of appeal. I ther fore think that see. 38 does not apply. The jurisdiction of Pri J. to hear the appeal was settled in the case of Ah Vick v. Lehi Q). We think, therefore, that special leave to appeal is necessary but that, under the circumstances, it is practically a matter of course to grant it. We therefore grant special leave. Blacket submitted that, as special leave was necessary, securil for costs should have been given by the appellant. The appellant ; should have taken this step before. GrirritH C.J.—This might be regarded as an application fora mandamus. The security would only be nominal, if it were) ordered. ' Armstrong (with him, Pitt), for the appellant. See. 8 of the Beer Excise Act prohibits only the making beer without a licence. The appellant, although nominally convicted and punished for that offence, was only proved guilty of having beer in his pos session without a licence. That is not an offence under the Act, though under the English Acts it is. [He referred to 43 & 44 Vict. c. 20, sec. 10, and 48 & 49 Vict. c. 51, sec. 4.] There was no evi- dence that the liquor when made contained as much as 2 per cent: (1) (1904) 4 8.R. (N.S. W.), 201. (2) 2C.L.R., 593. 3 CLR.) OF AUSTRALIA. of proof spirit. All the evidence points the other way. It was H.C. oF A. admitted that the percentage of alcohol in the liquor could not diminish while in the bottles, so long as the liquor remained sweet, but that it might easily increase. The keeping in bottles was no part of the process of making. It was merely for con- venience in storage, and every precaution was taken to prevent further fermentation. Therefore, the liquor " made" by the appellant was not "beer" within the meaning of the Beer Excise Act and the Excise Tarif? Schedule, and the conviction was bad. Moreover the Government analyst spoke only of " proof spirit." This is a technical term, and there was no evidence that he used it in the sense in which it is used in the Excise Tariff 1902. Blacket, for the respondent. The word "make" in sec. 8 includes every operation of the maker, so long as the liquor is in his possession, ¢.g., maturing, bottling, and so on. It must be taken to mean more than " brew," otherwise that word would have been used. For instance in making wine every process necessary to produce a wine fit for market is part of the making. [Grirrita C.J.—Was keeping in bottles part of the recognized process of making this ale 7] The beer was changed by the keeping. If that is not to be considered part of the process, a man might, without a licence, be able to produce highly alcoholic beer, by brewing it at a low grade, and taking care to leave some ferment in the bottles. It is immaterial at what stage of the process the increase in strength takes place. To leave in the bottles materials which will result in such an increase, is the same as actually adding alcohol. Nobody but the appellant was responsible for the making. He should have taken sufficient precautions to keep his product below the standard, or give up the manufacture, if he does not wish to pay duty. It is no excuse that he took some precautions. The result shows that he did not take enough. [O'Coynor J.—You must not put some special meaning on the word "make" without clear authority from the Act. In the absence of any such authority, surely you must read "make" in the ordinary sense.] If on the appellant's own showing, there must of necessity be 1905. ae Wizcox v. Dononor. H. C. or A. 1905. "—— Witcox v. Dononoe. HIGH COURT an increase in the strength after bottling, the process cann said to be complete before bottling. The intention of the app is immaterial. This is an unavoidable secondary ferment Moreover, there was no evidence that the strength would ine from less than 2 per cent. to the percentage found in some o bottles. That raises a primd facie case against the mal the onus was on him to rebut that presumption. The was therefore entitled on the evidence to find that, at the when the liquor was put into the bottles, it was above standard. The averments in the information are themse evidence: Excise Act, No. 9 of 1901, see. 144, which is incorpor with the Beer Excise Act, No 7 of 1901. 4 (Grirrirx C.J.—It is a question whether the Commony legislature has power to make such a provision The En Parliament has no doubt power to do so, but no English Act § that the person charged is to be deemed to be guilty of the off though they say that the introductory averments are to bet to be proved. However the question does not arise in this There was evidence given by the analyst from wh magistrate might have found the charge proved. [Grirrirx C.J.—It is the duty of the Court, on an appe this kind, to go into the whole case, and not only to see whet there was a fragment of evidence to support the finding.] Blucket referred to Ex parte Ward, and Ex parte Bo Addison's Digest of Criminal and Magistrates Cases, pp. 275, Witkinson Australian Magistrate, 7th ed., p. 703; Ex pi Tully (1). There was more than a mere fragment here, there abundance of evidence to support the finding. [He refe red various portions of the evidence, and to Howarth v Minns(2 Counsel for the appellant were not heard in reply. GrirritH C.J. This is in form an appeal from a deci His Honor Mr. Justice Pring, but it is in substance an from a police magistrate, because His Honor, followin decision in Ex parte Stelling (3), held that he had no juris to entertain the matter, and discharged the rule nisi for a p (1) 21 N.S.W.L.R., 408. (2) 56 L.T., 316. (3) (1994) 4 S.R., N.S.W., 201. 3 CLR.) OF AUSTRALIA. hibition. The matter therefore comes before us as an appeal for H. ©. or A. "the first time. The appellant was prosecuted for the offence of _ making beer without a licence. It appeared at the hearing ' before the magistrate that he was the brewer of a drink called ' "Dandelion Ale." Now, " beer" by see. 5 of the Beer Excise Act ' 1901, under which Act he was prosecuted, means "any liquor ' upon which under the name of beer any excise duty imposed by the Parliament is payable." Under the schedule to the Excise Tariff 1902 beer on which excise duty is payable is stated to be " Ale, Porter, and other Beer, containing not less than 2 per cent. ~ of proof spirit." In order therefore to convict the appellant it was necessary to show that he had made beer containing not less than 2 per cent. of proof spirit. The evidence offered for that purpose was this: Some five or six months after the beer in question was brewed, an inspector went to the appellant's premises, and took away some bottles containing a portion of the beer. On analysis, the beer in some of the bottles was found to contain more than 2 per cent of proof spirit. But the analyst called for the prosecution stated that, when beer which had been bottled five or six months was analysed, the amount of alcohol shown to exist in it at the time of analysis was no evidence of the strength of the liquor at the time when it was brewed. So that, on the prosecutor's own case, there was no evidence to show the alcoholic contents of the liquor when it was brewed. For the defence evidence was given that samples were taken at random from the same brew, and an analysis of their contents showed the presence of less than 2 per cent. of proof spirit; and it was proved both by witnesses for the prosecution and for the defence that it was impossible for the amount of alcohol present in the liquor when brewed to diminish whilst in the bottles. The inference was plain that the beer was stronger in alcohol at the date of analysis, than it was when it was bottled, and that it could not at the time when the bottling took place have contained more than 2 per cent. Under these circumstances the prosecutor failed to prove his case, for there was no evidence that the appellant had made beer containing more than 2 per cent. of alcohol, unless the term "making beer" can be extended to such a degree as to justify 1905. Ss) Wu.cox v. Dononor. Griffith ©.3. H.C. or A. 1905. —— Witcox » Doxonor. Griffith C.J. HIGH COURT holding the brewer responsible for any chemical chan; may have taken place in the liquor after the process of was finished. The evidence was that, unless the brew is perf clear, that is to say, unless the bottles are absolutely freed fp spores of fermentation, all sugar excluded, and the proce sterilization thoroughly successful, there is a prospect secondary fermentation may be set up in the bottles and amount of alcohol will slightly increase. If the legislature intended to make a man responsible for any changes that 1 take place in the liquor after the brewing was complete, it wo have been easy for them to have said so, as was done in by the Act 48 & 49 Vict. ¢. 51, sec. 4, wherein it was laid that the term "beer" in the Inland Revenue Act 1880, forbade unlicensed brewing, should extend to "any liquor wl is made or sold as a description of beer or asa substitute forh and which on analysis of a sample thereof at any time shal found to contain more than two per centum of proof s There is no similar provision in the Beer Excise Act 1 Excise Tariff Act 1902 here, nor is there anything to sug! that the word " make" was intended to import any such ¢ tion. On the facts, therefore, it appears to me that the pro failed to prove that the appellant was guilty of any of under the Statute, and that the appeal should be allowed. Barton J. and O'Connor J. concurred. Appeal allowed with costs. Rule app from discharged. Rule Nisi m absolute to quash the conviction. — Blacket, for the respondent, having been successful on preliminary objection, asked for the costs of that. : GrirritH C.J. Under the circumstances there will be no a as to those costs. Solicitor, for the appellant, F. Y. Wilson. Solicitor, for the respondent, The Crown Solicitor of South Wales. s C.AY