R v Sharkey

(1949) 79 CLR 121

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(Judgment by: LATHAM CJ)

Between: THE KING
And: SHARKEY

Court:

Judges:
Latham CJRich J
Dixon J
McTiernan J
Williams J
Webb J

Subject References:
Constitutional Law (Cth.)

Judgment date: 7 October 1949

Melbourne

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Judgment by:
LATHAM CJ

The duty of the Court in this matter is to determine questions of law which arose on a trial of Laurence Louis Sharkey before the Supreme Court of New South Wales for an offence against s. 24D of the Crimes Act 1914-1946. Sharkey was found guilty and Dwyer J., acting under the Commonwealth Judiciary Act 1903-1948, s. 72, postponed judgment and sentence and reserved four questions of law for the consideration of the High Court. It is the function of the High Court to hear and determine these questions and the Court may, in a case such as the present, where judgment has been postponed, set aside a verdict and order a verdict of not guilty to be entered, order a new trial or make such other order as justice requires - Judiciary Act 1903-1948, s. 73. (at p134)

2. Section 24D of the Crimes Act provides that "Any person who writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence." Sharkey was charged with uttering specified words which were alleged to be seditious. Section 24B (2) provides that "Seditious words are words expressive of a seditious intention." Section 24A (1) is as follows: -

"Subject to subsection (2) of this section an intention to effect any of the following purposes, that is to say -

(a)

to bring the Sovereign into hatred or contempt;

(b)

to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom;

(c)

to excite disaffection against the Government or Constitution of any of the King's Dominions;

(d)

to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;

(e)

to excite disaffection against the connection of the King's Dominions under the Crown;

(f)

to excite His Majesty's subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or

(g)

to promote feelings of ill-will and hostility between different classes of His Majesty's subjects so as to endanger the peace, order or good government of the Commonwealth, is a seditious intention."

Section 24A (2) provides that it shall be lawful for any person to do certain things in good faith in pointing out mistakes of the Sovereign or errors or defects in Governments or Constitutions & c., or to excite His Majesty's subjects to attempt to procure by lawful means alteration of the laws and to seek to remove matters producing or having a tendency to produce feelings of ill-will and hostility between different classes of His Majesty's subjects.

1. In this case the validity of these provisions has been challenged, and the first question reserved by Dwyer J. for the consideration of this Court is - "Whether ss. 24A, 24B and 24D of the Crimes Act 1914-1946 are invalid and ultra vires the Constitution of the Commonwealth of Australia?" (at p134)

3. Section 24A has no operation apart from ss. 24B and 24D. Sections 24A and 24B define the offence created by s. 24D. Section 24A specifies kinds of evidence which are to be treated as sufficient to prove a seditious intention. If words express such an intention (s. 24B) the person uttering them is guilty of the offence created by s. 24D. Thus the question of validity which arises is whether s. 24D is valid in so far as it creates offences which can be shown to have been committed by the evidence specified in ss. 24A and 24B. (at p135)

4. In this case the Crown relied only upon pars. (b), (c), (d) and (g) of s. 24A (1) and the jury was directed exclusively with reference to these paragraphs. Thus, strictly, only the validity of these paragraphs comes into question. In my opinion, substantially the same considerations, so far as validity is concerned, apply to all the pars. of s. 24A (1). (at p135)

5. In Burns v. Ransley (1949) 79 CLR 101 a case heard recently at Brisbane, I have stated my opinion as to the meaning of "disaffection" in s. 24A, and I do not here repeat my reasons for that opinion. In that case I also gave reasons for my opinion that the provisions of these sections which relate to the protection and maintenance of the existing Commonwealth Government and the existing departments and officers of the Government in the execution of their powers are valid. The reasoning upon which this conclusion is based applies equally in respect of all the matters referred to in the various paragraphs of s. 24A, all of which, in my opinion, are related to the legal and political organization of the Commonwealth. (at p135)

6. Paragraph (a) refers to the Sovereign. The Commonwealth of Australia is described in the preamble to the Commonwealth of Australia Constitution Act 1900, an Act passed by the Imperial Parliament, 63 & 64 Vict. c. 12, as an "indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established." Section 51 (xxxix.) of the Constitution confers power upon the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to "Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth." Laws which are directed to the protection and maintenance of the legal and political organization of the Commonwealth and of the Commonwealth in its legal and political relations may properly be enacted under this power. (at p135)

7. The Sovereign is part of both the legal and the political constitution of the Commonwealth. Section 1 of the Commonwealth Constitution expressly vests the legislative power of the Commonwealth in a Federal Parliament consisting of the King, a Senate and a House of Representatives. The executive power of the Commonwealth is vested in the King and is exercisable by the Governor-General as the King's representative - Constitution, s. 61. To use the words of Dean Roscoe Pound, "The sovereign is the symbol of an ordered society." These facts support par. (a) of s. 24A and also the provision in par. (b) with respect to exciting disaffection against the Sovereign. (at p136)

8. The Government and Constitution of the United Kingdom and the Houses of Parliament of the United Kingdom are also part of the legal and political constitution of the Commonwealth and the preservation of their integrity and authority is part of the protection and maintenance of the Commonwealth itself. As already stated, the Commonwealth Constitution is a statute enacted by the Parliament of the United Kingdom, and the Statute of Westminster 1931 adopted by the Commonwealth Parliament by the Statute of Westminster Adoption Act 1942 still preserves the legislative powers of the Parliament of the United Kingdom with respect to the Commonwealth. Section 4 of the Statute of Westminister provides that no Act of the Parliament of the United Kingdom passed after the commencement of the statute shall extend or be deemed to extend to part of the law of the Dominion unless it is expressly declared in that Act that the Dominion has requested and consented to the enactment thereof. This section expressly recognizes the legislative authority with respect to the Commonwealth of the Crown and Parliament of the United Kingdom and provides for the manner in which that authority is to be exercised. Accordingly, the prohibition of the utterance & c. of words intended to effect the purpose of exciting disaffection against the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom (par. (b) of s. 24A) are laws which are authorized by s. 51 (xxxix.) of the Constitution. (at p136)

9. The Commonwealth of Australia is a political organization which is associated with other Dominions by political conventions which are recognized both by the King's Dominions and internationally. The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs, a subject with respect to which the Commonwealth Parliament has power to pass laws - Constitution, s. 51 (xxix.). The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth. The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other Dominion may reasonably be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions. This fact is sufficient to authorize the provision contained in par. (c) of s. 24A in relation to the offence created by s. 24D. (at p137)

10. Paragraph (d) of s. 24A refers to exciting disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth. This is a matter with which I have already sufficiently dealt in Burns v. Ransley (1949) 79 CLR 101 . (at p137)

11. Paragraph (e) relates to the exciting of disaffection against the connection of the King's Dominions under the Crown. What has been said with reference to par. (c) applies also to par. (e). (at p137)

12. Paragraph (f) relates to exciting His Majesty's subjects to attempt to procure the alteration otherwise than by lawful means of laws of the Commonwealth. This provision is plainly connected with the protection of the authority of the Commonwealth itself and its agents and is justified by the Constitution, s. 51 (xxxix.). (at p137)

13. Paragraph (g) provides that it shall be a seditious intention to "promote feelings of ill-will and hostility between different classes of His Majesty's subjects so as to endanger the peace, order or good government of the Commonwealth." This provision has been attacked on the grounds that the power of the Commonwealth, whether legislative, executive or judicial, is limited by the Constitution, and it is contended that the words contained in par. (g) refer generally to peace, order and good government in relation to any matter whatever within the geographical limits of the Commonwealth. If the words are so construed, it is argued, the provision is beyond the legislative power of the Commonwealth. The Commonwealth Parliament has no general power to preserve peace, order and good government by the enactment of criminal law (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd. (1914) AC 237; (1913) 17 CLR 644 ). Thus par. (g) operating, in conjunction with ss. 24B and 24D, to create a criminal offence of endangering by seditious words peace, order and good government in relation to any matter whatever in Australia, is, it is argued, beyond Federal legislative power. (at p137)

14. I can see no reason why the words should be construed in the manner suggested. The reference in par. (g) to endangering the peace, order or good government of the Commonwealth should be read as a reference to that peace, that order and that government which the Commonwealth may lawfully protect, maintain or undertake; that is, to peace, order and good government as lawfully established under the Constitution. In my opinion there is no ground whatever for treating these words as intended to cover everything, lawful or unlawful, which the Commonwealth by any of its organs may attempt to accomplish. The "good government" of the Commonwealth can only be a government in accordance with law. Similar considerations apply to the words "peace and order." In the reasons for judgment in Burns v. Ransley (1949) 79 CLR, at p 106 I have referred to the significance and importance of preventing such disloyalty as would "endanger the peace, order and good government of the Commonwealth" - words which, in my opinion, should be understood in the sense stated. (at p138)

15. For these reasons I am of opinion that the question whether ss. 24A, 24B and 24D of the Act are invalid should be answered in the negative.

2. The second question submitted to this Court is "Whether there was evidence that the accused uttered the words alleged in the indictment?" (at p138)

16. The charge was that the accused on 4th March 1949 at Sydney did utter seditious words, namely: -

"If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis. I support the statements made by the French Communist leader Maurice Thorez. Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me. I believe the Soviet Union will go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of Communists is to struggle to prevent war and to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power but if fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force." (at p138)

17. These words were published in the "Daily Telegraph" newspaper on 5th March 1949 as a statement by Sharkey. The accused called no witnesses. The evidence for the prosecution was that J. D. McGarry, a reporter on the "Daily Telegraph," spoke to Sharkey on the telephone and asked him whether he would make a statement for publication with respect to "Communist policy in Australia in the event of the invasion of Australia by Communist forces." Sharkey was the General Secretary of the Communist Party and said that he could speak for the party. The reporter told Sharkey that Thorez in France had said that if France was invaded Communists in France would welcome the invaders if they came from Soviet Russia. Sharkey said that he would prefer to make a prepared statement on the following day, but he discussed the subject with McGarry, who typed out what he considered was a fair precis of the statement made. He read it over to Sharkey on the telephone about ten or eleven times. Sharkey altered some paragraphs and deleted others and finally said that he was satisfied with the statement. The reporter gave evidence that the statement which was published contained "the statements that Mr. Sharkey made." On the following day Sharkey said to E. Schackle, a reporter of the "Daily Mirror," that the report in the "Daily Telegraph" was a correct report and that he had made a statement to McGarry which was the article which appeared in the "Daily Telegraph." (at p139)

18. It was contended for the accused that this evidence did not show that Sharkey had actually uttered the words contained in the statement and that it was consistent with all the evidence that Sharkey had only answered questions with "yes" or "no," but had never actually said the words which were attributed to him in the statement. This in my opinion was plainly a matter for the jury. There was the direct evidence of McGarry that Sharkey actually made the statements which were reported in the "Daily Telegraph" and the evidence of Schackle (who spoke to Sharkey about the report on the following day) that he (Sharkey) had been correctly reported and had made the statement to McGarry which appeared in the "Daily Telegraph." Accordingly there was evidence from which the jury could conclude that Sharkey had actually uttered the words which were attributed to him in the published statement.

3. The third question is "Whether there was corroborating testimony in accordance with the provisions of the Crimes Act 1914-1946." - see s. 24D (2). This question was not argued. It is plain that the evidence of Schackle was testimony which corroborated the material evidence given by McGarry.

4. The fourth question is "Whether the words alleged to have been uttered in the circumstances in which they were alleged to have been uttered were capable of being expressive of a seditious intention within the meaning of the Crimes Act 1914-1946." (at p139)

19. The intention to which s. 24A refers is an intention which exists in the mind of the person who utters & c. the words alleged to be seditious. (at p140)

20. It is submitted for the accused that his only intention was to state his views, or his party's views, upon the issue which would arise in the event of an invasion of Australia by forces of the Soviet Union, and that an expression of opinion upon such a matter could not show any intention to effect any purpose other than that of expression of the opinion. (at p140)

21. In my opinion this argument should not be accepted. Whenever a person utters words with an intention to effect a particular purpose he expresses an opinion of some kind with respect to the purpose which he intends to effect. The two categories are not mutually exclusive. (at p140)

22. It is further contended that the words set out in the indictment do not show any intention to excite disaffection against the Sovereign or the Government of the Commonwealth or, indeed to effect any of the purposes referred to in pars. (b), (c), (d) or (g) of s. 24A - the paragraphs upon which the Crown relied. (at p140)

23. It was for the jury to determine the intention of the speaker in the circumstances in which the words were spoken. The accused was speaking as the general secretary of the Communist Party upon the subject of the action which ought to be taken by Australians in the event of an invasion of Australia by Soviet troops. The statement made was directed towards the recommendation and approval of a particular course of action in the event stated. It was not the statement of an abstract theoretical opinion. It was a statement made by the accused "officially" recommending what he described as the policy of the Communist Party. Thus it was a statement which was intended to effect a purpose and was not a set of abstract intellectual propositions which had no relation to action by any person or persons. (at p140)

24. But it is further contended that even if the words should be held to show an intention to effect a purpose, the purpose intended did not fall within any of pars. (b), (c), (d) or (g) of s. 24A (1). (at p140)

25. The intention of the accused was to recommend Australian workers to welcome Soviet troops in the event of Australia being invaded by Soviet troops. This event was described by the speaker as a very unlikely event. He said that he could not see Australia being invaded by Soviet troops. But the substance of his carefully worded exhortation was that if Soviet troops did enter Australia they ought to be welcomed by the workers of Australia as, it was said, the workers of Europe had welcomed Soviet troops - i.e. as liberators. It is true that the initial words of the statement are "If Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them." It was open to the jury to regard this statement as amounting to more than a prediction of probability and, when read in conjunction with the rest of the statement, as urging that Australian workers should welcome Soviet troops which entered Australia. It is said that the reference in the sentence quoted is only to the entry of Soviet forces into Australia "in pursuit of aggressors" and that such words could not be interpreted as intended to excite any persons to disaffection against the Government of Australia or to fall within any of the relevant paragraphs of s. 24A. But the definition of "aggressors" in the case supposed could well be supplied by the Soviet forces themselves and it was open to the jury to take the view that in the opinion of the Communist Party any country, including in particular Australia to which the statement referred, which fought against Russia would be an aggressor, so that Russia should be supported against any enemy, including Australia as a possible enemy. The statement of the speaker's belief that the Soviet would go to war only if she were attacked could fairly be construed as meaning that any country fighting against Russia would be an aggressor. (at p141)

26. Sharkey's statement was, as the evidence clearly showed, very carefully prepared. It was not made casually and without purpose. The jury could reasonably take the view upon the evidence that he intended and desired to present and recommend a policy involving disloyalty to Australia and so to excite disaffection, but to make his statement in such words as to create also a certain amount of confusion which could provide grounds for argument which might enable him to escape legal liability for what he was really doing. The jury could interpret the statement as meaning and as intended to mean that if Australia became involved in war with Russia, the workers ought to support Russia as against Australia. It was open to the jury to infer that the real intention and object of the accused was to excite disaffection under the guise of a statement with respect to a future event which he elected to describe as "very remote and hypothetical". The jury were entitled to take the view that if the event were honestly and sincerely regarded as "very remote and hypothetical" there could have been no reason for making the statement and that the real reason for making the statement was to excite disaffection, not only in the event of war between Australia and Russia, but also independently of and in advance of the actual occurrence of such a war. Intention - which is a matter of inference from words or conduct - is not by any means necessarily to be judged upon the face value of words used. The earnest advice of a pretendedly disinterested bystander to an excited crowd in possession of a victim "Don't duck him in the horse trough" can be interpreted, quite reasonably in some circumstances, as an incitement to the action which the speaker professes to discourage. The words spoken by Sharkey were uttered in March 1949 at a time of acute tension between Soviet Russia and powers with which Australia is most closely associated. The jury was entitled to take that notorious fact into consideration. The jury could, if it thought proper, reject as dishonest and insincere the references to the Soviet forces pursuing aggressors into Australia and to the permanently peaceful policy of Soviet Russia. The substance of Sharkey's statement could in my opinion properly be found by a jury to be that the Australian people should welcome a Russian invasion with non-resistance, because any resistance would amount to aggression. Such a policy would invite acceptance of conquest by a foreign power and would involve the repudiation of the whole existing legal and political organization of the Commonwealth, thus showing an intention falling within the description of each of the pars. (b), (c), (d) and (g) of s. 24A of the Crimes Act. In all these circumstances it should, in my opinion, be held that the words spoken were capable of being expressive of a seditious intention within the meaning of s. 24A (1) under each of the pars. (b), (c), (d) and (g). (at p142)

27. Accordingly in my opinion the fourth question should be answered - yes. (at p142)

28. The question as to whether parts of the Crimes Act are valid Commonwealth legislation is a question as to the limits inter se of the constitutional powers of the Commonwealth and the States. It is suggested that when this question was raised upon the trial of Sharkey in the Supreme Court the matter was automatically transferred to the High Court under s. 40A of the Judiciary Act. If this was the case the subsequent proceedings in the trial were taken without jurisdiction: there was no power to reserve questions under s. 72 of the Act for the consideration of the High Court, and the trial of Sharkey should have proceeded before a judge of the High Court and a jury. The result would be that no decision should be given upon the questions reserved and that the trial should simply be started over again in the High Court. (at p142)

29. In my opinion this is not the true view of s. 40A when it is read in conjunction with s. 38A, which was passed at the same time, in 1907. Section 40A (1) provides as follows: -

"When, in any cause pending in the Supreme Court of a State, there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court." (at p143)

30. Section 38A provides that in matters (other than trials of indictable offences) involving any question however arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any state or States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States. This provision, therefore, does not exclude, in trials of indictable offences, the jurisdiction of the Supreme Courts of the States as to questions of the limits inter se of constitutional powers. Section 39 (2) of the Act vests in the courts of the States jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, but subject to the exclusions for which ss. 38 and 38A provide. Original jurisdiction may be conferred on the High Court in all matters arising under the Constitution or involving its interpretation - Constitution, s. 76 (i). It therefore follows that the Supreme Courts of the States under s. 39 (2) still have jurisdiction in trials of indictable offences, even though a question of the limits inter se of constitutional powers is raised in the course of such a trial, because the exclusive provisions of s. 38A do not apply to such trials. (at p143)

31. If s. 40A automatically removed to the High Court a trial of an indictable offence in which such a question arose, the exception expressed in the words "other than trials of indictable offences" in s. 38A would have no force or effect whatever. Accordingly, upon a consideration of the two sections together it should be held that s. 40A was not intended to apply to trials of indictable offences. (The reasons for such a provision with respect to criminal trials in a State Court can readily be suggested. Unless there were such an exception, persons charged with indictable offences could, by raising constitutional points, delay their trials in some cases for many months. The State court may decide the constitutional question itself or may refer it to the High Court under s. 72 of the Judiciary Act.) (at p143)

32. This view is supported by the second part of s. 38A which goes out of the way to state the intended consequence of the part of s. 38A which I have already quoted. This consequence is expressed in the following words - "So that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court." The word "such" refers back to "matter (other than trials of indictable offences)." The consequence is that the Supreme Court of a State shall not have jurisdiction to entertain or determine certain matters. But this provision is subject to the exception of trials of indictable offences. Therefore the intention is that in the case of trials of indictable offences the Supreme Court shall have jurisdiction to entertain and determine the whole matter including any question of the limits inter se of constitutional powers. I call attention to the word "determine." (at p144)

33. Thus I do not think that s. 40A removed this particular case into the High Court. (at p144)

34. No question relating to s. 40A was raised or argued in the proceedings in this case in the High Court. When questions are reserved under s. 72 of the Judiciary Act the High Court should restrict itself to the consideration of those questions, but there is a necessary limitation upon this general proposition, namely, that the High Court must be satisfied of its jurisdiction to entertain the questions, and that therefore, if it appeared that the Supreme Court had no authority to reserve the questions, the High Court should not determine them. But in my opinion what has been said provides a reply to any suggestion that the Supreme Court had no jurisdiction to entertain and determine the charge against Sharkey or to reserve questions under s. 72. (at p144)

35. In the course of argument it was suggested that, as the prosecution relied upon four of the paragraphs of s. 24A for the purpose of supporting a single count of uttering seditious words, the Crown should have been compelled to specify and rely upon only one paragraph of s. 24A (1) in respect of one count. Paragraphs (a), (b), (c) and (d) all contain several alternatives, and the logical result of the suggestion would be that the Crown should have been required to limit the charge to one count relating to one alternative or to make a number of separate charges. (at p144)

36. The indictment specified the precise words which were alleged to have been used by the accused. He therefore knew exactly what the charge was that he had to meet. If the uttering of those words was proved, it was a matter for argument as to whether they fell within any one or more of the paragraphs of s. 24A (1). The question was not fully argued as to whether the charge should have been laid or put before the jury in some other form and I abstain from expressing any concluded opinion upon it. It is sufficient for present purposes to say:

(1)

that it is the duty of the Court upon this proceeding to answer the specific questions which have been reserved for its consideration under s. 72 of the Judiciary Act 1903-1948 and not any other questions:

(2)

that this procedure does not provide a general criminal appeal: and

(3)

that it is the duty of the Court, for the purpose of exercising the powers conferred upon it by s. 73 of the Act, to determine what order should be made as a consequence of the answers given. In my opinion the proper order to make is to answer the questions in the manner stated, namely the first question in the negative and the others in the affirmative, and to remit the case to Dwyer J. with those answers. (at p145)