R v Martin [1939] HCA 39

62 C.L.R.] OF AUSTRALIA. 457

[HIGH COURT OF AUSTRALIA.]

THE KING AGAINST

MARTIN AND ANOTHER ;

Ex parte WAWN.

Constitutional Law—Freedom of inter-State trade, commerce and intercourse—State H.C. or A. lottery legislation—Acceptance of money for transmission to another State in 1939, respect of purchase of ticket in lottery lawfully conducted in that State—Prohibition = "7 —Object of legislation—Discrimination—The Constitution (63 & 64 Vict. c, 12) SYDNEY, sec. 92—Lotteries and Art Unions Act 1901-1929 (N.S.W.) (No. 34 of 1901— Dee. 19.

No. 9 of 1929), sec. 21. Latha Rich, 7 By sec. 21 of the Lotteries and Art Unions Act 1901-1929 (N.S.W.) it ig Pion, Evatt

provided : " Whosoever sells or offers for sale or accepts any money in respect MeTiernan JJ. of the purchase of any ticket or share in a foreign lottery shall be liable to

a penalty." A foreign lottery is defined by sec. 19 of that Act to mean any

lottery conducted outside the State of New South Wales and whether legal

in the place where it is conducted or not.

The applicant, as agent of a company carrying on business at Hobart, Tasmania, accepted in Sydney a sum of money for transmission to his Tasmanian principal and to be applied by that company in purchasing and forwarding to the informant a ticket in a lottery lawfully conducted in Tasmania, The applicant was convicted of an offence under the first-mentioned section.

Held, by Starke, Dizon, Bvatt and McTiernan JJ. (Latham C.J, and Rich J. dissenting), that the provisions of sec. 21 of the Lotteries and Art Unions Act 1901-1929 (N.S.W.) do not contravene sec. 92 of the Constitution ; therefore 'the applicant was properly convicted. So held, by Starke, Hvatt and McTiernan JJ., on the ground that the case was governed by R. v. Connare; Bx parte Wawn, (1939) 61 C.L.R. 596 ; and, by Dizon J., on the ground that, although the transaction was of an inter-State character, sec. 92 of the Constitution gives no protection to a transaction against a law the application of which is independent of any characteristic which enters into the description of trade, 'of commerce or of intercourse and of any element of inter-State movement 'or communication.