R v Regos

(1947) 74 CLR 613
[1947] ALR 308
(1947) 21 ALJ 110

---

(Decision by: Rich J)

R
vRegos

Court:

Judges: Latham CJ

Rich JStarke J
Mctiernan J

Legislative References:
Judiciary Act 1903-46 - s 72
Black Marketing Act 1942-46 - The Act
National Security Act 1939 - The Act
Defence (Transitional Provisions) Act 1946 - The Act
Acts Interpretation Act 1901-1941, s 48 - The Act
National Security Act 1939-1943 - The Act

Case References:
R v Edmundson - (1859) 28 LJ MC 213
Anderson v Anderson - (1895) 1 QB 749
Thorman v Dowgate Steamship Co Ltd - (1910) 1 KB 410
Thames & Mersey Marine Insurance Co Ltd v Hamilton, Fraser & Co - (1887) 12 App Cas 484
Tillmanns & Co v SS Knutsford Ltd - (1908) 2 KB 385
Mudie & Co v Strick - (1909) 100 LT 701
SS Magnhild v McIntyre Bros & Co - (1920) 3 KB 321
Kempley v R - [1944] ALR 249

Hearing date: 19 May 1947
Judgment date: 9 June 1947

---

Decision by:
Rich J

Prosecutions upon indictments gave rise to this case, which was stated pursuant to s 72 of the Judiciary Act 1903-1946 at the instance of Regos and Morgan, who were accused of offences against the Black Marketing Act and found guilty on a count in the indictment for omitting to keep proper books and accounts as required by reg 49 of the National Security (Prices) Regulations. On behalf of the accused it was submitted to the learned judge at the trial that the eighth count, which is the material count in the indictment, did not disclose an offence under the Black marketing Act. The ground of this submission was that this Act did not specifically make the omission to keep books and accounts an offence, and that the general words authorizing the Governor-General to add to the category of black-marketing offences should be restrained by construction and, properly restrained, did not extend to keeping or failing to keep proper books and accounts. The concluding portion of s 3 of this Act, which follows a list of specific offences, provided that black marketing shall include "any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing." S 17(a) of the Black Marketing Act empowered the Governor-General to make regulations not inconsistent with the Act declaring any act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing. The contention is that the words "any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations" should not be literally interpreted but should be construed as related only to things of the same kind as are enumerated in the list of specific offences. In other words, it was argued that the general words should be construed as applying ejusdem generis with the particular instances which preced them. If so construed the accused say that the power would not cover the omission to keep books and accounts. Proceeding on the contrary assumption the Governor-General by reg 3 of the Black Marketing Regulations declared it to be black marketing to do or omit to do any act in contravention of reg 49 of the National Security (Prices) Regulations. The eighth count of the indictment was laid under these provisions. The learned judge, although disposed to think that a restrictive construction of the relevant words in s 3 might be adopted, decided that a restriction could not be placed upon them narrow enough to exclude what was done by reg 3 of the Black Marketing Regulations. His Honour accordingly allowed the count to stand and in the event both accused were convicted. The argument for a narrow interpretation of the power begins by calling attention to the extravagance of the supposition that it was intended that any contravention of any regulation contained in the two stout volumes the sight of which has become so familiar to the Court might be converted into black marketing and so became punishable under the drastic penal clauses of that statute. From this beginning the argument proceeds to an examination of the specific offences defined by paras (a) to (i) of s 3. The ingenuity of counsel was employed in extracting from the elements of these offences some logical category which by a judicious use of the ejusdemgeneris rule would exclude an offence of improper bookkeeping and accounting. Having listened carefully to the argument I am clearly of opinion that it cannot be done. The rule invoked is nothing but a guide of construction, and nothing could be clearer than that the intention of the legislature was to enable the Executive to amplify the list of black-marketing offences as experience and judgment might dictate. No doubt it is true that no one contemplated the use of the power to cover the whole field of National Security by regulation, but it is apparent that the draftsman felt unsure about the sufficiency of his list and trusted to the wisdom and discretion of the Executive to add to it when necessary. A reason for feeling unsure on such a subject is to be found in the extraordinary ingenuity and resource of those who seek to defeat or evade a control relating to rationing of goods or the repression of a rise in price in goods or services. Primarily one might conjecture that the power was directed to everything that helped in the suppression or detection of offences against the regulation of the distribution and price of goods and services. I doubt very much whether there are any materials in this legislation for restricting the meaning of s 3 by construction: but however that may be I am quite clear that a restriction cannot be placed upon the provisions so narrow that it puts it beyond the power of the Executive to establish contravention of reg 49(1) of the National Security (Prices) Regulations as black-marketing offences. The commonest experience shows that failing to keep books, "cooking" books or destroying books is found by an offender against trading laws to be necessary to the concealment of his offences and is a usual precaution taken by those who have traded unlawfully whether the law is that of black marketing or of war-time controlling. I therefore answer Question 1 in the affirmative. The second point taken by the accused by way of appeal is the same as that covered by the case of Ferguson and Morgan. It is in the instant case the second question. For the reasons I have given in the Ferguson and Morgan's case, the question should be answered in the negative.