R v Sharkey

(1949) 79 CLR 121

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(Judgment by: RICH J)

Between: THE KING
And: SHARKEY

Court:

Judges: Latham CJ

Rich JDixon J
McTiernan J
Williams J
Webb J

Subject References:
Constitutional Law (Cth.)

Judgment date: 7 October 1949

Melbourne

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Judgment by:
RICH J

The facts in this matter are already in statement and I proceed to the consideration of the questions submitted to us by the case stated. (at p145)

2. In Burns v. Ransley (1949) 79 CLR 101 the validity of ss. 24A (1) and 24B (2) of the Crimes Act 1914-1946 was questioned and I held them to be valid. In the same case I also stated my opinion as to the meaning of the word "disaffection" in s. 24A. I adhere to what I said in that case, but would add a few words on the interpretation of par. (g) of s. 24A (1). I think that a reasonably precise meaning may be given to it. It relates to a definite intention or purpose of promoting ill-will and hostility so as to encourage mutiny and to cause dissension between different sections of the community and endanger the government of the country according to law. I therefore conclude that s. 24A (1) (g) is valid. In my opinion the learned trial judge was entitled to charge the jury as he in fact did. And as there was evidence to support the jury's finding on this charge the verdict cannot be impeached. (at p145)

3. The second question submitted for our consideration is whether the accused uttered the words alleged in the indictment which were published in the "Daily Telegraph." The evidence as to these reported statements is precise and warrants the finding of the jury that Sharkey actually uttered the words alleged in the indictment. (at p145)

4. The third question was not pressed. The evidence of Schackle corroborated the evidence of McGarry. (at p145)

5. With regard to the fourth question, I think the jury were justified in concluding that the intention - the design, object or purpose - of Sharkey was to excite, inspire or kindle disaffection and in that respect his utterances were capable of being expressive of a seditious intention within the meaning of the Crimes Act. (at p145)

6. I therefore answer the first question in the negative and the remaining questions in the affirmative and would remit the case to Dwyer J. accordingly. (at p146)