Richardson v. Austin
(1911) 12 CLR 463(1911) 17 ALR 324
[1911] HCA 28
(Judgment by: O'Connor J)
Richardson
v Austin
Judges:
Griffith CJ
Barton J
O'Connor J
Judgment date: 15 June 1911
Judgment by:
O'Connor J
The conviction which is under review in this case is founded on s 25 of the "Markets Act 1890." In my opinion, the history of previous legislation throws no light whatever upon the question we have to decide. The prosecutor, in framing his information, properly alleged that the sale did not take place in the defendant's dwelling house or shop. It is well settled that if the doing of an act is made an offence, except it is done under certain stated circumstances, the fact that it was not done under those circumstances must be alleged in the information, and proved by the prosecution. The prosecutor therefore took upon himself the burden of proving that the sale did not take place in the defendant's shop. Now, I have no doubt that the finding of the Magistrates that the sale did take place in the defendant's shop was correct, and therefore, apart altogether from the questions of law which have been raised, the conviction cannot stand; but as the questions raised are of some importance, I will add my reasons for the conclusion that the place where the sale took place was rightly found by the Magistrates to be a shop. It is unnecessary to define exhaustively what is a shop; but there are certain incidents of this particular business which it seems to me cannot be left out of consideration in determining whether the place of sale was a shop or not. Speaking generally, the defendant's premises were a collection of coveredin places, at the rear of other buildings fronting a public street, there being an entrance from the public street, and openings from a right of way on either side. The business carried on was that of an auctioneer on a somewhat large scale. The place is called by the auctioneer himself in his advertisements "The Exchange." As a matter of fact, it was his permanent place of business. The portion of the premises in which butter was sold, butter being the subject of the prosecution, was separated from the rest of the premises; there a permanent store of butter was kept, principally the defendant's own property, and there large quantities, amounting to over a ton a week, were sold, some of the sales being by retail. The auction sales of butter and other produce were held apparently two or three times a day on one day, and, as I understand, very frequently during the week. Now, under these circumstances, it is quite clear that the place was a place for the sale of goods; goods were stored there for the purpose of being sold, and some of them were sold by retail. It seems to me that you have there everything that characterises a shop, and the question is whether the additional use to which the place was put in any way detracts from that character. It was held in Wiltshire v Willett, 11 CB.N.S 240, by Erle, C.J, that a sale by commission and a sale by auction in a place did not take away from that place the character of a shop. In that respect that decision has been followed and approved by the Master of the Rolls and the court of Appeal in Haynes v Ford, (1911) 1 Ch 375, 27 T.L.R 416. I think it is therefore quite clear that the building in which the butter, the subject of the charge, was sold was in all essentials a shop within the meaning of s 25, and therefore the prosecution must fail on that question of fact.
But apart from that, a question is raised as to the interpretation of s 25. Mr Davis, in the course of his very careful argument, showed clearly enough that there is an ambiguity in the use of the word "places," because it may be read in two ways, either as the appellant contends, the word "public" must be supplied before "places," or, as the respondent contends, the words "in any of the" must be supplied before "places." The question is which words should be supplied. The form of expression is elliptical, and something must be supplied. The question is, which of those words should be supplied? If, as Mr Davis contends, the words to be supplied are "in any of the," then an offence is committed if the sale takes place in any place, public or private, which is not the defendant's shop or dwelling house. If the appellant is correct in his contention, then unless the sale takes place in a public place not being the defendant's dwelling house or shop, no offence is committed. Mr Davis' principal argument, as I gather it, was put in this way. The main body of the section protects the right of market against any sale in any place whether public or private. When the remedy is given it ought to be read as being coextensive with the right given. It appears to me that does not follow. We must remember what is the nature of the remedy given. The nature of the remedy given is a penal prosecution and summary conviction. It may very well be that the Legislature intended to give a right to protection against every form of sale which would interfere with a market, amounting to a disturbance of the market at common law - rights open to be enforced in the ordinary Courts, but did not intend to furnish a complete remedy, enforceable by Magistrates on summary conviction. The principle upon which a section of this kind is to be interpreted seems to me to be of some importance. In a case where the interpretation is doubtful, there was no doubt at one time a much more rigid interpretation of criminal Statutes than there is now. The modern rule is I think well laid down by James, LJ, in The Gauntlet, LR 4 P C. 184. At p 191 he says -
It was much pressed in the court below, and again before their Lordships, that the Statute being a penal, or, as it was phrased, a highly penal one, it was to be construed strictly. It appears to their Lordships necessary to say a few words as to this topic, which is so often pressed in argument. No doubt, all penal Statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included, if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal Statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.
That I think is the rule which I may describe as the modern rule by which we are to be guided in interpreting a penal Statute. Now, one fair way of looking at the meaning of this section is this - What is the scope of the legislation, and will the construction which is contended for carry it beyond that scope? The scope of the legislation is clearly to protect the market, and if the protection of the market may be carried out fairly and adequately by the protection of the market from sales in public places round about the market, or in the neighbourhood of the market, it appears to me that that is all the protection which the Act taken as a whole contemplated. In Haynes v Ford, (1911) 1 Ch 375, 27 T.L.R 416, although the decision there was on a Statute somewhat different in its wording, I think that principle of interpretation as to the intention of the Act was applied. Cozens-Hardy, M.R , with regard to a section very similar, says -
It was reasonably plain that the general intention of s 10 was to protect the market against what might be called itinerant vendors, people who sold their goods in alleys or lanes or other open spaces, and the section also prevented them from selling in any room which they might hire for the purpose at an inn or a warehouse.
That is a special provision which does not occur in this case. Now, if we look at the words of the Act under consideration in this case, the prohibition is against selling in any of the "streets lanes entries or other public passages." All those are public places, sales in which would be likely to affect the carrying on of a market which is authorised by the Act to be established, and to go beyond that would be to take a step much further than is necessary for that purpose. It appears to me that one of the strongest arguments against Mr Davis' contention is that if it were adopted it would carry the Act beyond the protection required, and would have the effect of prohibiting all sales of every kind of produce in a place which was not a dwelling house or shop. Many illustrations may be given of how this would operate. One was suggested by the learned Chief Justice in the course of his judgment. It appears to me that, applying the principles laid down in The Gauntlet, LR 4 P C. 184, the fair interpretation of this section, according to its scope and the rest of the provisions of the Act, is to restrict the prohibition of sales to places of the same kind as "streets lanes entries or other public passages." In my opinion, therefore, the proper word to be supplied before "places" is "public," and not the words for which Mr Davis contended.
The proper interpretation of the section, therefore, being that there can be no offence unless the sale is in a public place not being a dwelling house or shop, it is quite clear this sale was not in a public place within the meaning of the Statute. The words "public place" are general words, and the sense in which they are used is to be gathered only from the subject-matter with which the Legislature was dealing when using them. A public place for the purpose of the offence dealt with in R v Wellard, 14 QBD. 63, was one thing; a public place in the case of Re Brian, 2 NSW SR (L.) 125, where the offence charged was betting, was quite another matter. Here "public places" must be interpreted with reference to the object of the Statute, which is to protect a market. If the appellant's premises are to be described as a public place, then every shop which attracts a large number of persons is a public place. Places which may be given by way of illustration in Melbourne and Sydney would occur readily where there is a great stream of people continually, while the places are open, going backwards and forwards all day. It would hardly be contended that a shop, because it was largely attended, could be included in the term "public places" within the meaning of the section. On that ground, which is a question of fact, I think the defendant must succeed.
I would like to add to what has been said by the learned Chief Justice with regard to the case of Weedon v Davidson, 13 ALR 87, that some expressions were used there which perhaps went beyond the necessity of the occasion, and which I think have been misunderstood. Looking at my own judgment there I find that I said that the remedy given by this penal section was in substitution for the remedies under the old law. I think that is strictly accurate; I did not intend to convey by that that it was to be substituted to the exclusion of every other remedy. But if my words bear the construction contended for, I think they go too far. There is no reason why the old remedy for the protection of a market by an action for the disturbance of the market should not exist at the same time as the new remedy.
For these reasons I am of opinion that the learned Judge on the review took an erroneous view of the case, and the appeal must be allowed.