Myerson v. Collard

25 CLR 154
(1918) 24 ALR 306

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(Judgment by: Isaacs and Rich JJ., ) Court:

Judges: Barton J

Isaacs JHiggins 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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Judgment by:
Isaacs and Rich JJ.

The validity of par. 1 of the regulation was at first challenged, but, that objection having been withdrawn, it is unnecessary to say anything about it formally. It must not, however, be assumed that as at present advised we entertain any doubt on the matter.

Then, assuming the whole regulation valid, the next question is its interpretation. Does it require that there shall be what is sometimes called mens rea, before an offence is committed? In other words, did the Governor-General in Council, as the legislating authority, intend that no one should be deemed to contravene its provisions so long as he was honestly ignorant, that is (with reference to this case for example), that the goods seized were those of a soldier's dependent? The answer to that question, to quote the words of Lord Atkinson speaking for the Judicial Committee in Bruhn v Rex ( [1909] A.C. 317 ), at p. 324, "depends upon the terms of the Statute or ordinance creating the offence." In the present instance, having regard to the terms of the regulation itself, to its subject matter, to the difficulty, amounting in many cases almost to impossibility, of proving guilty knowledge prior to seizure, to the futility, if such proof were necessary, to which the regulation would probably be reduced, and having regard also to the fact that the enacting authority knew of the statutory provision prohibiting any prosecution without the consent of the Government authorities, the regulation should be read as a simple prohibition of the act itself. The absence or presence of knowledge as an element in the act might influence the Crown as to instituting a prosecution, or in the event of a prosecution might affect the mind of the tribunal in awarding the punishment.

The next question is as to whether on this reading of the regulation there was in fact a breach of its provisions. The material portion for this purpose consists of the words any furniture "belonging" to any female dependent. Mrs. Collard was a female dependent, that is, of a member of the Forces, and the articles seized were furniture. The problem is, were they furniture "belonging to" her? What this part of the regulation speaks of are "furniture" and "wearing apparel" later on in par. 2 grouped together under the generic term "articles." Now these are physical objects, and not juristic rights in respect of them. When we speak of physical objects as belonging to a person, without any qualifying expressions, the primary natural meaning is that they are his own absolute property, and not that he has, instead of the objects themselves, a mere option which he may never exercise or a mere contractual right to own them on conditions which he may yet elect not to undertake. This is stated in unequivocal language by Lord Macnaghten in Heritable Reversionary Co v Millar ( (1892) A.C., 598 ), at p. 621. The reference to "bills of sale" and to "hire-purchase agreements" is not a qualification of this meaning. In the case of a "bill of sale" the property is in truth the property of the mortgagor, and the mortgagor is under a fixed liability to pay the debt and clear the property. A hire-purchase agreement of the Lee v Butler ( [1893] 2 Q.B. 318 ) type is analogous; but one of the Helby v Matthews ( [1895] A.C. 471 ) type is not. The expression "hire-purchase agreement" is certainly not conclusive in favour of enlarging the meaning of the words "belonging to." If it has any definite meaning it tends the other way, because "hire-purchase agreement," strictly interpreted, would mean an agreement by which the parties agreed as definitely to "purchase" as to "hire." But without giving it that strict meaning, and treating the phrase as equivocal, it leaves the words "belonging to" untouched by any restrictive context. They must therefore be given their primary natural meaning. The result is that unless the facts show these articles of furniture or some of them to have been Mrs. Collard's, the regulation was not infringed.

The furniture in question consisted of two groups, one of which may be called the Hale group, and the other the Davidson group. The Hale group is shown to have been hired by Mrs. Collard on a hire-purchase agreement, which gave her a mere option to purchase and which did not bind her to purchase, and which, moreover, expressly provided that until she did elect to purchase and did pay the full price the property remained in Hale & Co Clearly these chattels did not "belong to" Mrs. Collard ( Belsize Motor Supply Co v Cox ( [1914] 1 K.B. 244 ), and cases there cited, and also McEntire v Crossley Brothers Ltd ( [1895] A.C. 457 )). As to the Davidson chattels it is not so clear. The actual written agreement is not in evidence, and there are some expressions which are to the effect that Mrs. Collard "bought" the goods from Davidson. But the evidence also shows that it was on "the time-payment system," which, as is well known, is at least consistent with the ownership remaining in the so-called "seller" until payment in full. The payment in full did not take place till 8th August, the day of the sale. The seizure or taking possession occurred on 2nd August. The act of seizure was not a continuous act, but an act done once and for all ( Jones v Biernstein ( [1899] 1 Q.B. 470 ), per Channell J.-which decision was affirmed ( [1900] 1 Q.B. 100 )).

This being a case where, apart from credibility, this Court must exercise its own mind upon the facts, we are not satisfied with the proof of ownership. Criminal responsibility should be established beyond reasonable doubt. The purchase, no doubt, was by written agreement, and it should have been produced or accounted for by the prosecution. That would have been the best evidence, and so vital a fact should not be left to conjecture where direct proof is possible. To say that goods are "sold" or "brought" does not settle the matter, even if believed. Those words do not necessarily connote immediate transfer of property. It is all a question of intention as appearing from the terms of the contract. The contract of sale may stipulate that property is not to vest in the purchaser-that is, even where it is a real purchase and not a mere option of purchase-until payment in full (see per Lord Chelmsford in Shepherd v Harrison (L.R. 5 H.L. 116), at p. 127, approving Moakes v Nicolson (19 C.B. (N.S.) 290)). And when to this serious doubt are added the admission that the sale was on "the time-payment system" and the circumstance of haste and unusual circumspection in obtaining payment while the sale was in progress, we are very far from being satisfied that the property legally "belonged to" Mrs. Collard at the moment it was seized. To say the least, the ownership of the goods is certainly left in reasonable doubt.

On the whole we are of opinion that this appeal should succeed on the one ground, that the property was not shown to be property "belonging to" Mrs. Collard at the time of seizure.