Myerson v. Collard

25 CLR 154
(1918) 24 ALR 306

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(Decision by: Barton J.) Court:

Judges:
Barton JIsaacs J
Higgins J
Gavan Duffy J
Powers J
Rich J

Hearing date: 30 July 1918; 31 July 1918; 12 August 1918
Judgment date: 12 August 1918

Sydney

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Decision by:
Barton J.

This is an appeal from the Court of Quarter Sessions at Sydney, exercising Federal jurisdiction. That Court was itself acting on appeal from the decision of a Stipendiary Magistrate sitting in the Police Court. By agreement the appeal was heard on the depositions taken at the last-named Court. The Magistrate convicted and fined the now appellant on the information of the respondent of having during the continuance of the present state of war, that is, on 8th August 1917, taken possession, under a warrant to distrain, dated 1st August, of certain articles of furniture not exceeding in value PD50 "belonging to" the complainant, the wife of a soldier on active service, she being a female dependent for her support upon the soldier's pay. In point of fact the seizure took place some days before the 8th. In the prosecution an order was made for payment to the complainant of PD14 as the value of the articles of which possession had been taken. Statutory Rules 1916, No. 283, provide in reg. 8 a new regulation, No. 12, which runs as follows:

"12. (1) No person shall, under a bill of sale, or writ of execution or other process issued by a Court, or by way of distress, or under the provisions of a hire-purchase agreement made prior to the first day of June, 1916, or to the enlistment of a member of the Forces, whichever last happens, seize or take possession of-

(a)

any chattels which are used by any female dependent of that member of the Forces to support or assist in supporting herself or any of the family of the member; or

(b)

any furniture or wearing apparel belonging to any such member or female dependent: Provided that if the furniture and wearing apparel belonging to the member and his female dependents exceed in value PD50, any articles may be seized and taken possession of under due authority of law if the articles remaining are not less in value than PD50.

(2) In any prosecution for an offence against this regulation an order may be made for the return of any articles seized or taken possession of in contravention of this regulation, or for payment of their value."

The Chairman of Quarter Sessions, while confirming the conviction, reduced the penalty, which now stands at PD15. The regulation in question was made under the War Precautions Act 1914-1916. In view of s. 6 (3) of that Act it was a ground of appeal that "the clause of the regulation providing that the value of the goods seized might be ordered to be repaid is ultra vires and beyond the power to make this regulation." That ground was amended, by leave, so as to read, after the word "is," as follows: "not within the powers granted by the War Precautions Act." But during the hearing of the appeal before us the whole ground of ultra vires was abandoned.

Three questions were raised in argument. The first of them may be discussed without particular quotation of the evidence. It was, to put it shortly, that proof of mens rea was essential. It had been practically admitted by the respondent that such proof did not exist. The seizure and sale were conducted by an agent of the now appellant and in his absence. There was nothing to show that the appellant either knew or had good grounds for knowing that the facts constituting the offence existed. In the case of Duncan v Ellis ( 21 C.L.R. 379 ), in considering s. 226 of the Factories and Shops Act 1915 (Vict.), we adopted the principle laid down by Wright J. in Sherras v De Rutzen ( [1895] 1 Q.B. 918 ), at p. 921, namely, that the presumption that mens rea is an essential ingredient in every offence "is liable to be displaced either by the words of the Statute creating the offence or by the subject matter with which it deals," and that both must be considered. In the three classes of cases which are exceptions to the presumption the first, says his Lordship, is a class of acts "which...are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty." I do not discuss the second and third classes, because this case seems to me to come very clearly within the first. So far from being criminal, the acts prohibited are such as in times of peace are in general lawful. It is in the public interest that it has been prescribed that the belongings of absent soldiers and their female dependents should be protected from certain processes and proceedings which otherwise would be within the power of creditors. The object of the regulation is perfectly obvious, and it is impossible to say that it was not made in the public interest. Also the intention of the supplementary legislature is made plain by the second paragraph of the regulation. If there could be no "contravention" unless the person charged took possession with knowledge that the furniture belonged to the dependent, then only a person with such knowledge could be ordered to return the goods or their value, and a taker without such knowledge could not be ordered to return the dependent's goods. It is inconceivable that the supplementary legislature had any such intention. Without discussing the matter at length, I am of opinion that the appeal fails as to this ground.

The second question argued was as to the meaning of the word "belonging" in par. (b) of the new reg. 12 (1). It was contended for the appellant that this word must be read in its ordinary sense, and for the respondent that it holds a special sense which is satisfied by the proof of any interest, or at any rate, of some interest entitling the dependent to possession of the goods. I see nothing in the phraseology of the regulation to justify the respondent's contention on this head, and no context was cited which expanded the ordinary meaning of the terms used. The words relating to a "hire-purchase agreement" have not that effect. The expression is indefinite, and to alter the natural and usual meaning of "belonging" it would have to be read as a definite protection of articles the property in which has not passed under such an agreement. I am unable to give it that definite meaning in a provision which should be strictly construed. Besides, an ambiguous expression cannot be held to control the otherwise clear meaning of the term to be interpreted. When pars. (a) and (b) are compared, it is seen that the supplementary legislature has drawn a distinction between the terms used to denote the respective causes of possession. In the one case it is the use of chattels as a means of livelihood. Ownership is not there prescribed. Mere use is sufficient. In the other-which is the present case-it is required that the goods belong to the dependent. "Use" is a term evidently employed here in its ordinary sense, and "belonging" must, I think, be read in its ordinary sense too, as denoting goods of which the dependent has the beneficial ownership.

The remaining question is the third. The appellant contends that the respondent, who had to prove ownership of at least some part of the goods, had not done so. We have to deal with the facts by way of review, forming our own judgment as to their weight. There is no question as to credibility. The furniture was as to part covered by an agreement with a firm of S. J. Hale & Co Ltd This is in evidence. It was plainly a letting on hire with an option to purchase; for the option a sum of ten shillings was to be paid, and the agreement said: "such sum shall not be credited to the rent payable hereunder until and unless a purchase of the said chattels be effected hereunder." See Belsize Motor Supply Co v Cox ( [1914] 1 K.B. 244 ). The rent payable was for the hire to the respondent, she being designated "the hirer" and Hale & Co being designated "the owners." Throughout the agreement there is no sign of any other relationship. There was provision for retaking possession on default in payment of any of the weekly instalments of "rent or hire," or on bankruptcy, or on any execution or distress, or on failure to perform the hirer's stipulations, or on the hirer's suffering any act, including a judgment, which might prejudice the owners' rights of ownership. The chattels were only to become the property of the hirer when the amount of rent received by the owners, together with the ten shillings for the option to purchase, should equal the total value of the chattels as set out in the schedule. Until then the chattels were to remain the property of the "owners." It is not contested that this agreement was still current at the time of the seizure under warrant to distrain. No doubt a document may be called a hire-purchase agreement when its terms as written really amount to a purchase by instalments. But in this instance there is obviously only a hiring unless and until the hirer becomes the purchaser by her own act. It is clear that no ownership was proved in respect of this portion of the goods.

The remainder of the goods consisted of a green leather suite obtained from a firm of Davidson & Co The respondent said:"Some of the furniture was my own, and some I had under a hire-purchase agreement. The green leather suite-a seven-piece suite-belonged to me-a dining-room suite I bought at Davidson & Co 's, and paid PD7 12s. 6d. for it. I also had some goods from S.J. Hale & Co on a hiring agreement." A Mr. Crowe, secretary to Davidson & Co Ltd , gave evidence on behalf of the respondent, then complainant. He said:"I know Mrs. Elizabeth Collard, to whom we sold a seven-piece dining-room suite on the time-payment system, but it was fully paid up on the day of the sale, the 8th August I think. ...That seven-piece suite would cost anyone PD7 12s. 6d. to buy, and that is what she paid for it." As to the day of the sale he said:"I went to our office in Oxford Street with Mrs. Collard, and then I went back to the sale. She had some money with her, a ten pound note. ...She told me she had borrowed that money...and I suggested that she came along and pay our account, but she did not tell me what she had borrowed it for. We did not leave to go to the office until Levy" (the auctioneer) "had said he intended to sell. I brought Mrs. Collard back; we were away only a very short time." It appears, then, that when the intention to sell was announced Mr. Crowe took the respondent to Davidson's office, she having a ten pound note with her, and then they went back to the sale. It is also plain that Crowe's principals had an account against her in respect of the green leather suite on the day of the sale and before it. There is no evidence that the PD7 12s. 6d. had all been paid before the seizure, and the sale took place several days after the seizure. Then was she at the time of the seizure the owner of these goods which she had procured "on the time-payment system"? Crowe says "it," that is, the price, was fully paid up on the day of the sale, and therefore not till then. Is the word "bought" used by the respondent, or the word "sold" used by Crowe, sufficient to show that the property in these goods had passed to the respondent before the seizure? I am much inclined to think that when Mrs. Collard said she had "bought" them she was referring to the transaction after the seizure-in fact on the day of the sale-when she accompanied Crowe to his office. What does "the time-payment system" mean as a colloquial term? Is it used to denote a system under which ownership begins at the time of the agreement, or a system under which ownership begins when the time payments are completed? It may mean either. I confess that I am left in doubt on this point. It is obvious that there was an agreement, but its terms, which were most likely written, were not disclosed by the respondent in her evidence in chief. In fairness it must be said that they were not elicited on cross-examination. But it was for her, as the complainant, to disclose them. If I felt myself at liberty to say what I take "the time-payment system" to mean in the great majority of such transactions, the task would be less difficult. But I am not sure that I am at liberty to do so. The matter seems to me to be evenly balanced. An inference is open in either direction. On the whole I cannot say that the inference in one direction outbalances that in the other. But the proceeding on which the evidence was taken was a quasi-criminal one, and the evidence for the prosecution must be plain and clear, or the prosecution cannot succeed. I cannot conclude that the respondent has proved property so as to satisfy me on this portion of her case. But if the Davidson suite did not belong to her at the time of the seizure, she fails altogether, and I feel myself driven to conclude that she has failed. I am unable to say that when a person declares that he bought on the time-payment system it is in any way clear that he shows that he acquired the property at the time of the agreement.

I think therefore that the appeal ought to be allowed, and the conviction and order quashed.