Cobiac v Liddy

[1969] HCA 26

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Windeyer and Owen JJ.

COBIAC v. LIDDY

(1969) 119 CLR 257

11 June 1969

Statutes—Justices (S.A.)

Statutes—General words—"Notwithstanding any other Act"—Statutory offence—Imprisonment prescribed by one Act as minimum penalty for subsequent offence—Court authorized by another Act to dismiss a proven offence without proceeding to conviction—Road Traffic Act, 1961-1967 (S.A.), s. 47*—Offenders Probation Act, 1913-1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30. Justices (S.A.)—Power to dismiss a complaint where charge proved—Extent of power where another Act prescribes minimum penalty for subsequent offence—Road Traffic Act, 1961-1967 (S.A.), s. 47*—Offenders Probation Act, 1913- 1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30. Justices (S.A.)—Discretion—Power to dismiss a complaint where charge proved—Sufficiency of evidence—"Antecedents"—Offenders Probation Act, 1913-1963 (S.A.), s. 4 (1)*—Acts Interpretation Act, 1915-1936 (S.A.), s. 30.

Decisions

June 11.
The following written judgments were delivered:-
BARWICK C.J., KITTO AND OWEN JJ. This is an appeal by special leave against an order made by the Full Court of the Supreme Court of South Australia allowing an appeal from an order made by Bray C.J. dismissing an appeal from a court of summary jurisdiction (Liddy v. Cobiac: Bray C.J.'s judgments of 19th and 26th July 1968 and Full Court's judgments of 16th January 1969 (1969) SASR 6 ). (at p261)

2. The appellant was prosecuted by the respondent before a court of summary jurisdiction upon a complaint charging three offences against the Road Traffic Act, 1961-1967 (S.A.). The first count, based upon s. 47 (1) (a) of the Act, charged the appellant with driving a motor vehicle while he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. The second count, based upon s. 43 (3) (a), charged that he being the driver of a motor vehicle when, owing to the presence of that vehicle on a road, an accident occurred whereby damage was caused to a motor car, did not stop his vehicle forthwith. The third count, based on s. 45, alleged that he had driven a motor vehicle on a road without due care or attention or without reasonable consideration for other persons using the road. (at p261)

3. Each of the charges arose out of certain happenings on 2nd February 1968 when the appellant, then a man of seventy-two years of age, drove his car on a public street while under the influence of liquor, collided with another car which was parked in the street and having done so failed to stop. The learned magistrate convicted the appellant on the second and third counts. On the second count he imposed a fine of $100, ordered the appellant to pay a substantial sum by way of costs and disqualified him from holding or obtaining a driver's licence for twenty years. On the third count he disqualified him from holding or obtaining a driver's licence until further order. As to the first count, his Worship thought that the charge was proved but in reliance upon the provisions of s. 4 (1) I of the Offenders Probation Act, 1913-1953 (S.A.), dismissed the complaint without convicting the appellant. (at p262)

4. The respondent appealed to the Supreme Court against the order dismissing the first count and the appeal was heard by Bray C.J. In support of the appeal it was argued that the powers conferred upon a court of summary jurisdiction by s. 4 (1) I of the Offenders Probation Act cannot be exercised where the offence charged is one of contravening s. 47 (1) of the Road Traffic Act. Alternatively it was said that if it is open to apply s. 4 (1) I in such a case, the material before the learned magistrate was insufficient to justify him in exercising the discretion conferred by it. (at p262)

5. The learned Chief Justice rejected the first submission but upheld the alternative contention. It was apparent to his Honour, however, that had the appellant been convicted of the offence charged in the first count and been sentenced to a term of imprisonment of at least one month - as would necessarily have been the case since it was his "second offence" within the meaning of s. 47 (1) - the learned magistrate would have imposed some lesser punishment following upon the convictions under the second and third counts. But since the appeal related only to the first count his Honour was unable to interfere with the penalties imposed under the second and third counts and, in these circumstances, he considered that the proper course to take was to dismiss the appeal. (at p262)

6. From that order of dismissal the respondent appealed to the Full Court. Two of its members, Chamberlain and Walters JJ., took the view that the terms of s. 47 (4) of the Road Traffic Act excluded the operation of s. 4 (1) I of the Offenders Probation Act. Their Honours were also of opinion that even if par. I of s. 4 (1) could be applied where the offence charged was one of contravening s. 47 (1) of the Road Traffic Act, the case was not one in which it was open to the magistrate to exercise his discretion in the appellant's favour. On the first point Bright J. agreed with the Chief Justice but on the second point he reached the same conclusion as had the other members of the Full Court. Their Honours were, however, all of opinion that the learned Chief Justice should, as a matter of law, have allowed the appeal from the magistrate and accordingly they set aside his order and in lieu thereof made orders convicting the appellant of the charge laid in the first count and remitting the case to the magistrate to deal with the question of penalty. (at p263)

7. The first question for our consideration is whether the discretionary powers conferred by s. 4 (1) I of the Offenders Probation Act can ever be exercised in a case in which a person is charged with the offence created by s. 47 (1) of the Road Traffic Act. That sub-section provides that:

"A person shall not - (a) drive a vehicle; or (b) . . . while he is so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle."

Under the heading of "Penalty" there follow provisions prescribing the punishments to be imposed. For a first offence it is a fine or imprisonment for not more than three months and, in either case, disqualification from holding and obtaining a driver's licence for such period as the court thinks fit but in no case for less than three months; for a second offence, imprisonment for not less than one month and not more than six months and disqualification for not less than six months and for a third or subsequent offence imprisonment for not less than three and not more than twelve months and disqualification for not less than three years. (at p263)

8. Section 47 (4) provides that:

"Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows:- In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days."

And it is upon this sub-section that reliance was placed in support of the submission that s. 4 (1) I of the Offenders Probation Act can have no application to a case in which a person is charged with an offence under s. 47 (1). (at p263)

9. It appears to us to be clear that the penalty provisions of s. 47 (1) cannot operate unless there has first been a conviction of the person charged. That this is so becomes even more obvious when reference is made to s. 30 of the Acts Interpretation Act which states that:

"The penalty or punishment . . . set out . . . in, or at the foot of, any part of any section of any Act, shall indicate that any contravention of such . . . part . . . shall be an offence against such Act, punishable upon conviction by a penalty or punishment not exceeding that so set out."

We think it is equally clear that s. 47 (4) only takes effect if and when the person charged has been convicted. In a case, however, in which s. 4 (1) I is applied the person charged with the offence is not convicted, instead the information or complaint laid against him is dismissed. Section 4 (1) I is in these terms:

"Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to - (a) the character, antecedents, age, health or mental condition of the person charged, or (b) the trivial nature of the offence, or (c) the extenuating circumstances under which the offence was committed, it is expedient to exercise any of the powers conferred by this subsection, the court may - I. without convicting the person charged dismiss the information or complaint."

By way of contrast the following paragraph, par. II, enables the court, having convicted the person charged, to discharge him without penalty. The fact that in a case in which an order is made under s. 4 (1) I the person charged is not convicted is further emphasized, if emphasis be needed, by the terms of s. 4 (5) which are as follows:

"Where any order is made under subsection (1) hereof without conviction of the person charged, such order shall, for the purpose of revesting or restoring stolen property, or of enabling the court to make orders for the restitution or delivery of property to the owner and for the payment of money upon or in connection with such restitution or delivery, have the same effect as a conviction." (at p264)

10. As we read their judgments, both Chamberlain J. and Walters J. agreed that a penalty could only be imposed following upon a conviction. They were of opinion, however, that to dismiss an information or complaint pursuant to s. 4 (1) I of the Offenders Probation Act would be to reduce or mitigate the minimum amount of any fine and the minimum period of imprisonment or disqualification contrary to s. 47 (4) of the Road Traffic Act. We are, with respect, unable to agree that this is so. As we have already said, we have no doubt that the provisions of s. 47 (4) of the Road Traffic Act only come into operation where there has been a conviction of the offence charged. The sub-section deals only with penalties and there can be no imposition of a penalty unless and until there has first been a conviction. We are of opinion therefore that Bray C.J. and Bright J. rightly considered that s. 4 (1) I of the Offenders Probation Act can, in an appropriate case, be applied where a person is charged with contravening s. 47 (1) of the Road Traffic Act. The case would be otherwise with respect to s. 4 (1) II of the Offenders Probation Act which presupposes a conviction before the occasion arises for its application. The use of that provision would be precluded by the opening words of s. 47 (4) of the Act. (at p265)

11. The remaining question is whether there was sufficient material to justify the exercise by the learned magistrate of the discretionary powers conferred by s. 4 (1) I of the Offenders Probation Act. His Worship took into account the facts that, while the appellant's record as a car driver was far from good, he was a man of good character; that he was seventy-two years of age; and that he had to care for his sister who was eighty-seven years old and who lived with him. There is room at least to doubt whether this last consideration was relevant either on the question of character or antecedents: but the case was not at any stage presented in argument on the footing that the learned magistrate took into account extraneous or irrelevant considerations in exercising his discretion. The only point taken on appeal, in argument and dealt with in the judgments below was that there was no material upon which he could exercise his discretion under s. 4 (1) I. But at least the appellant's age was undoubtedly a fact which the magistrate was entitled to consider. Age in this context is a relative matter, relative to all the circumstances which exist or are about to exist. The expediency which the magistrate is required to consider is not limited to the age itself, although age is one of the factors which give rise to the question whether it is expedient in all the circumstances to exercise the powers given by the sub-section. In our opinion, the magistrate was entitled to consider whether, having regard to the age of the appellant in the circumstances which included the penalties which he had resolved to impose on the other charges, penalties which included the fact that he would be disqualified for the rest of his life from driving a motor car, and having regard also to the fact that to send the appellant to gaol would subject him to distress by reason of his being thereby prevented from caring for his aged sister, it was expedient to take the course described in s. 4 (1) I rather than to convict him. In our opinion, there was material on which the magistrate could exercise his discretion in the manner in which he did. (at p265)

12. Being of this opinion, the propriety of the course taken by the learned Chief Justice does not necessarily arise for our decision. But we would agree with the view of the Full Court that, having decided that there was no material upon which the magistrate could exercise his discretion within s. 4 (1) I, his Honour was bound to allow the appeal before him. There was no discretion in the Court to dismiss the appeal for reasons of the kind which moved his Honour. (at p266)

13. We would therefore allow the appeal, set aside the order of the Full Supreme Court and in lieu thereof order that the appeal to that Court be dismissed. (at p266)

McTIERNAN J. I think that the order of the magistrate dismissing the first count of the complaint is contrary to s. 47 (4) of the Road Traffic Act and the order of the Full Court of the Supreme Court is therefore right. The proceedings were heard and determined summarily pursuant to s. 164 of the Road Traffic Act. The magistrate was a court of summary jurisdiction within the meaning of the Offenders Probation Act. He made the order in question on application by counsel for the defendant, appellant in this Court, to extend clemency to him under s. 4 (1) of the latter Act. I think there were grounds for clemency which could be based on the provisions of s. 4 (1) if s. 47 (4) of the Road Traffic Act did not deny the magistrate the power to make an order in favour of the appellant in respect of punishment. The application for the order was made upon the magistrate's announcing that he found that the prosecution had proved beyond any reasonable doubt that the defendant was guilty. By s. 30 of the Acts Interpretation Act, the word "Penalty" in s. 47 indicates that a contravention of the section is an offence against the Road Traffic Act and is "punishable upon conviction" by a penalty or punishment not less than the minimum nor more than the maximum set out in s. 47. The application was made on the footing that even though the magistrate announced in effect at the conclusion of the trial that he found the defendant guilty, he did not "convict" him within the meaning of s. 69 of the Justices Act. Section 47 (4) applies to forbid reduction or mitigation of punishment which is "prescribed by this section", except only as permitted by the proviso. It is argued that because according to s. 30 of the Acts Interpretation Act the word "Penalty" in s. 47 means that a contravention of this section is punishable upon conviction with the penalty or punishment set out in s. 47, sub-s. (4) of this section was no obstacle to the exercise by the magistrate of the discretion conferred by s. 4 (1) of the Offenders Probation Act. It is clear that this could not be the case as regards sub-ss. II or III of s. 4 (1). The decisions cited by Mr. Cox show that the word "conviction" is not unequivocal. A question is what does the word mean in s. 30 of the Acts Interpretation Act. No doubt the word includes a summary conviction. The Acts Interpretation Act itself does not provide a statutory definition of "conviction". (at p267)

2. I take the view that the word "conviction" in s. 30 of that Act should receive an ample meaning. Without attempting an exhaustive interpretation, the word "conviction" may mean a mere determination of guilt or a finding of guilt plus a judgment on the finding. But I take the view that the question whether the magistrate's order is contrary to s. 47 (4) depends primarily on the interpretation of this sub-section. Its operation is not expressed to be conditional on an announcement by the magistrate in the very words that the defendant is convicted. I think upon the proper construction of s. 47 (4) it is enough to disentitle the defendant to apply under any Act for an order providing for lessening or abatement of the minimum punishment or disqualification for which an offender is liable under the section. The order made by the magistrate in this case purports to have such an effect. (at p267)

3. I would dismiss the appeal. (at p267)

WINDEYER J. Mr. R. W. Grubb, a special magistrate, sitting as a court of summary jurisdiction at Wirrabara in South Australia, found that Thomas Patrick Cobiac, the appellant in this Court, was "guilty as charged" of a breach of s. 47 of the Road Traffic Act, 1961-1967 (S.A.). That is to say he found that he drove his motor vehicle when he was drunk and thereby incapable of exercising effective control of it; but he dismissed the charge, believing that he was empowered to do so by the Offenders Probation Act, 1913-1963 (S.A.). The question is, was he so empowered? The formal order he signed states the charge - which was the first count of a complaint charging it and two other offences against the Road Traffic Act - and concludes:

"Now on this day, to wit, on the 11th day of April, 1968, I the undersigned, a Special Magistrate for the said State, sitting as Wirrabara Court of Summary Jurisdiction at Laura Court House, in the said State, having heard and determined the said complaint, do dismiss count one pursuant to s. 4 of the Offenders Probation Act, 1913-1953."

This document is the "minute or memorandum" of the dismissal of the complaint required by s. 71 of the Justices Act, 1921-1960 (S.A.). (at p267)

2. It is said that the magistrate erred in law, that the course he took was not open to him. Two different reasons were advanced for this conclusion. One was that the offence of driving a motor vehicle under the influence of drink was one to which s. 4 (1) of the Offenders Probation Act could not lawfully be applied. The provisions of the Road Traffic Act had, it was said, abrogated its application in such a case. The other proposition was that even if the powers given by the general provisions of s. 4 (1) of the earlier Act did survive the special provisions of the later Act and were applicable to the particular offence, nevertheless the facts necessary for the exercise of the power of dismissal of a complaint did not exist in this case. Each of these propositions found both adherents and dissentients among their Honours in the Supreme Court. The lack of unanimity there, in result and in reasoning, leads me to approach the matter afresh for myself. The first question, which is independent of the facts of the particular case, was aptly described as "technical" by the learned Chief Justice of South Australia. It is, I think, to be decided not by any assumptions of what Parliament's purpose was, but by its intention as expressed in the language it has used. I do not think that it is of much help to notice, as we were asked by counsel for the Crown to do, that the penalties for the offence of drunken driving have over a period been made more and more severe. It was urged that this shewed that the legislature has taken a grave view of this offence, and a determination that it should be suppressed. That obviously is so. And any court that has power to extend mercy to such an offender ought gravely to hesitate and weigh the matter well before doing so. Certainly a charge of driving when drunk could seldom be dismissed on the ground that the offence was of a "trivial nature", although the Road Traffic Act, s. 47 (4), does speak of a first offence as capable of being "trifling". But, recognizing the offence as serious, and that a conviction of it must bring a heavy penalty upon the offender, is not to say that such an offender can never be dealt with under the Offenders Probation Act. The proposition that that Act has been supplanted by the rigorous provisions of the later Act was put to us as an example of the contrast between the general and the special - the provisions of the Road Traffic Act being regarded as the special. So put, the proposition is the obverse of the maxim generalia specialibus non derogant, because the so-called special provisions come after the general enactment. What is said is really specialia generalibus derogant: but whether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims. (at p268)

3. And I am not prepared to answer it by presuppositions of a probable legislative intent. I need only say that if I thought anything decisive of the question is to be gathered from the severity of the law against driving when drunk, I would not think that it was that the path of leniency had been absolutely closed. Rather I would think the contrary. The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. Therefore, I do not think it should be said that the Parliament of South Australia has done by implication what it certainly has not done explicitly, namely removed the offence in question from within the purview of the Offenders Probation Act. Section 4 (1) of that Act is as follows:

"4 (1) Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to - (a) the character, antecedents, age, health, or mental condition of the person charged, or (b) the trivial nature of the offence, or (c) the extenuating circumstances under which the offence was committed, it is expedient to exercise any of the powers conferred by this subsection, the court may - I. without convicting the person charged dismiss the information or complaint; II. having convicted the said person discharge him without penalty; III. without convicting or having convicted the said person discharge him conditionally on his entering into a recognizance, with or without sureties - (i) to be of good behaviour, and (ii) to appear before a court of summary jurisdiction for conviction and sentence, or for sentence, when called upon at any time during such period, not exceeding three years, as is specified in the order."

This section is derived from the Probation of Offenders Act, 1907, of the United Kingdom. It is in the same terms as that prototype, except that there the words were "without proceeding to conviction" whereas here the Act says simply "without convicting the person charged". In the magistrate's note of his reasons which was put before us, and also in the judgments of the Supreme Court, the South Australian Act is referred to as if its words were exactly those of the English Act of 1907. However, this is of no moment, because the departure in South Australia from the original form seems to have no practical consequences. It does not dispel the criticisms of the language of the Act made in England fifty years ago when, in Oaten v. Auty (1919) 2 KB 278, at p 282 Darling J. said:

"The words . . . are unscientific, thoroughly illogical, and are merely a concession to the modern passion for calling things what they are not; for finding people guilty and at the same time trying to declare them not guilty."

In 1936 the enactment was considered in England by a Departmental Committee. The recommendations of the Committee were belatedly adopted in the Criminal Justice Act, 1948, which permits putting a person on probation after conviction, in lieu of penalty. No longer can justices in England decline to convict when they think a charge is proved: see Halsbury's Laws of England, 3rd ed., vol. 10, p.498; vol.25,p.226; Law Quarterly Review, vol. 65, pp. 52-54. But in South Australia the statutory provisions are still substantially in their original form. (at p270)

4. The two phrases which are critical are "without convicting" and "dismiss the information or complaint". These each employ words which have been part of the vocabulary of English law for centuries. But their meanings and effects in the Act must depend on the context in which they there appear, and on the policy and purpose of the Act as made manifest by its language. I say this because it seems to me to be of little moment to say that Parliament has misused words, has called things what they are not. If it has, this may be regrettable to purists in the use of traditional legal terms. But Parliaments can make the words they use bear whatever meaning they wish. Context and the policy of an enactment may point the meaning to be given to words and phrases in it as surely as express statutory definitions would do. And, despite the criticisms of its language voiced in England fifty years ago, the Act has maintained its place in the statute law of South Australia; and it has been regularly applied there in the administration of the penal laws, as has a similar provision in New South Wales. For this reason I was inclined to by-pass in this judgment all that, in the course of argument, was said to us as to the abstract, general, and historic meanings for lawyers of the word "convict" as a verb, and of the noun "conviction". Nevertheless, as the parties attached some importance to these things, and as perhaps they do throw some indirect light on the questions in the case, I shall deal briefly with these matters of legal linguistics. (at p271)

5. The starting point of discussion today is commonly the statement of Tindal C.J. in Burgess v. Boetefeur (1844) 7 M &G 481, at p 504 (135 ER 193, at p 202) :-

"The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court."

This statement has been quoted since then in judgements in cases having some similarity to the present case. However, notwithstanding the eminence of its author and the adoptions and endorsements of it by distinguished judges, I venture to question it. I take the liberty of asking whether, of the two meanings that his Lordship said the word "conviction" would bear, the latter was properly called by him, or is now properly called, the "more strictly legal sense". If that means the sense in which, when his Lordship spoke, the word had been theretofore ordinarily used by lawyers, I think the opposite of what he said is more accurate. (at p271)

6. Does conviction, in the case of an indictable offence, depend upon verdict or upon sentence? The question is far from new. Statements can be found in the books either way, depending often upon how the question arose. They go back for hundreds of years - at least, so it is said, to the second year of the reign of Queen Elizabeth I: see Dyer, 179. A very early definition of a "convict" is "he that is found guilty of an offence by verdict of a jury": this appears in Cowell's Interpreter, published in 1637; and Cowell got it from Staunford's Pleas of the Crown, published posthumously in 1560. It seems too that a prisoner would be properly called a convict if upon his arraignment he confessed the offence and pleaded guilty. In the eighteenth and nineteenth centuries, and since, the word "conviction" has been used of a jury's verdict of guilty rather than of the judgement of the court following upon verdict. This is apparent in numerous cases and statutes and in the works of the great writers on criminal law. Of the cases, I mention three only: Reg. v. Faderman (1850) 1 Den 565, at pp 569, 570 (169 ER 375, at pp376, 377) ;Reg. v. Miles (1890) 24 QBD 423 ; Reg. v. Blaby (1894) 2 QB 170 . Of the numerous statutes in which conviction and sentence, which is judgment, are spoken of as distinct things it is enough to refer, by way of illustration, to the words of s. 3 of 25 Geo. II, c. 37 (1752) - "Sentence shall be pronounced in open court immediately after the conviction of such murderer" - and to many Acts in England and Australia in the form that every person who does some specified act shall be guilty of an offence and "being convicted thereof" shall be liable to the penalty specified. As to the classical text writers: One sentence from Hale suffices to shew that for him conviction by verdict always preceded judgement:

"If a man be indicted for felony within clergy, and he plead and be convict, and it be demanded of him what he can say why judgment should not be given against him, he may pray his clergy" (Pleas of the Crown, vol. II, p. 378).

In Hawkins' Pleas of the Crown (1824 ed.), vol. II, ch. 48, p. 624, "Of judgment", it is said,

"...by the course of the court of king's bench, upon every conviction in that court of a crime, capital or not, whether by verdict or confession, the party is to have four days to move in arrest of judgement".

Upon such a motion a conviction might be quashed, as it can be today on an appeal; but that is because the court holds that the accused was not lawfully convicted and that the conviction ought not to stand, not that there never was in fact a conviction. The same terminology of "conviction" and "judgment" appears throughout Chitty's The Criminal Law, 2nd ed. (1826), vol. I, ch. 15, "Of proceedings between verdict and judgment"; and in vol. IV, passim, including p. 361 where an accused is called upon to appear "in order to receive the judgment of the said court for the misdemeanours whereof he stands convicted". A person found guilty and bound over to come up for judgment when called upon has been "convicted": R. v. Rabjohns (1913) 3 KB 171 ; but a person merely bound over to be of good behaviour has not: R. v. County of London Quarter Sessions Appeals Committee; Ex parte Metropolitan Police Commissioner (1948) 1 KB 670 (at p272)

7. The distinction, at common law, between conviction and judgment appears in R. v. Vipont (1761) 2 Burr 1163 (97 ER 767) , which was followed in R. v. Harris (1797) 7 TR 238 (101 ER 952) . These cases can perhaps be regarded as illustrations of the statement - derived from Coke and originally having a particular application to offences against religion, but given in Jacobs' Law Dictionary (sub. tit. "convict") as of general application - that "judgment amounts to conviction; though it doth not follow that everyone who is convict is adjudged". This means that everyone who is found guilty is not necessarily sentenced. He is convicted it is true; but unless he be sentenced, and the sentence and conviction stand on an appeal, he is not to be called a convict. In more recent times it has been said that "the word 'conviction' is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment. . . of the Court": per Darling J. in Harris v. Cooke (1918) 88 LJKB 253, at p 255 . This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence: R. v. Sheridan (1937) 1 KB 223 ; Reg. v. Campbell; Ex parte Hoy (1953) 1 QB 585 . (at p273)

8. Leaving now old learning about the common law meaning of the words "convict" and "conviction", I turn back to the words of the Offenders Probation Act. The first thing to observe is the contrast between s. 4 (1), which deals with proceedings before a court of summary jurisdiction, and s. 4 (2) (as amended in 1963), which relates to courts other than courts of summary jurisdiction. The language of the Act at this point shews that the old meaning of conviction was in the mind of the draftsman. If, on a trial on indictment, the jury finds a verdict of guilty, the trial judge cannot say there was not a conviction. He is, however, empowered by s. 4 (2), in circumstances similar to those mentioned in s. 4 (1), to bind over the person convicted to be of good behaviour, or to come up for sentence if called upon, instead of sentencing him to a term of imprisonment. Section 4 (2) it will be noticed relates only to cases of offences punishable by imprisonment. These are offences which, generally speaking, are more serious than many that are ordinarily dealt with in courts of summary jurisdiction. Section 4 (1) gives a wider discretion to courts of summary jurisdiction. And it is, I think, important to remember that it is now sixty years since Lord Alverstone C.J. said that this discretion, given to magistrates, "ought not to be too strictly or narrowly construed": Dunning v. Trainer (1909) 101 LT 421, at p 422 ; and this has never been disputed. If in the exercise of his discretion a magistrate, notwithstanding that he thinks an offence proved, decides that, having regard to the matters the statute mentions, he will not convict the offender and will dismiss the complaint, then the result must be to free the offender of the immediate legal consequences of his having committed the offence. The phrase "dismiss the information of complaint" accords with its context. The word "dismiss", used in this way, is said to have come originally into the law by way of the Court of Chancery, where it was used of ordering a removal of a proceeding from the court without further hearing - a result formally expressed as that the plaintiff's bill "do stand dismissed out of this Court". The word has passed from Chancery to common law also. It has a well established meaning. (at p274)

9. A condition precedent of an order under s. 4 (1) of the Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the sub-section came again before a court, charged with having again committed the same offence, it would be properly called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted. I am not disposed to disagree with the decision of Walters A.J. on this point: Pring v. Woolacott (1966) SASR 6 . But I can leave that matter aside, as it does not arise for our decision. (at p274)

10. Having given the best consideration I can to this case, aided by the learned judgments in the Supreme Court and the arguments we heard, my conclusion is that the Parliament of South Australia has not prohibited magistrates from applying the provisions of the Offenders Probation Act to charges of driving under the influence of drink. On this aspect of the case I agree with the conclusions of Bray C.J. and Bright J.; and I am relieved of having to go again over all the ground covered in their judgments. (at p274)

11. One matter which weighed with those members of the Supreme Court who took the opposite view was the provision s. 47 (4) of the Road Traffic Act which reads as follows:

"Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows:- In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days."

On this, I agree that, as Bray C.J. expressed it, "the penalty provisions of sub-s. (1) (of s. 4 of the Offenders Probation Act) and hence the prohibition of their mitigation in sub-s. (4) do not begin to operate until there has been a conviction". It may be that it is not open to a court of summary jurisdiction hearing a charge under s. 47 of the Road Traffic Act to take the second of the courses which s. 4 (1) authorizes, that is "having convicted the said person discharge him without penalty". This, it is said, creates a situation which Chamberlain J. thought an "absurdity", which he did not think could be attributed to Parliament. However, I express no opinion on whether if a court having convicted a person were to discharge him without penalty, it could be said to have reduced or mitigated the minimum amount of the fine or the minimum period of imprisonment which, if it had imposed a fine or imprisonment, it would have had to impose. It is not obvious to me that this is so. But, in any event, I am not convinced that, if the statute does create an anomaly, a court should try to avoid it by bending the meaning of the words of s. 4 (1). One course the sub-section authorizes is dismissing a complaint without convicting the offender: the other is, after convicting the offender, discharging him without penalty. Each word, "dismiss" and "discharge", is entirely apt where it stands. (at p275)

12. One thing is I think quite certain: that is that, if a man be not convicted, he is not to be punished. Sentence follows only upon conviction. General principle and the provisions of s. 30 of the Acts Interpretation Act, 1915-1936 (S.A.), ensure this: see R. v. Spratling (1911) 1 KB 77, at p 82 . (at p275)

13. That brings me to the next question. Were there in this case any facts which could justify the magistrate exercising his discretion by declining to convict and dismissing the complaint? In the Supreme Court their Honours were unanimous in thinking that there were not. On the basis that the discretion given by the Offenders Probation Act had not been abrogated by the Road Traffic Act, they thought that nevertheless the magistrate had in the circumstances of this case abused his discretion. I am far from satisfied that this was so. The question is not whether any of us in this Court, or any of their Honours in the Supreme Court, would himself have taken the course that the magistrate took. The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be "of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged . . . it is expedient to exercise" the power. That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence. In the instant case the magistrate's decision, according to his notes, was that:

". . . in view of the defendant's age, his previous good character (apart from his driving record) the circumstances of his aged sister being dependent on him - the provisions of s. 4 should and in the exercise of my discretion, will be applied".

I see nothing in that which shews that the magistrate took into consideration any matters that he ought not to have done. He had heard all the charges in the complaint. He had resolved to convict the accused of the offences alleged in the second and third counts of the complaint and to deprive him of his driving licence. He had not believed parts of his testimony, given in explanation of his conduct on the night in question. He could in consequence have thought, as I think I would have, that a man who was prepared to tell lies when on oath, in an attempt to excuse himself, was certainly not of blameless character. But it was for him, the magistrate, to weigh the offender's worthiness. In doing so he was not obliged to put his false swearing heavily into the scale. The position of his aged sister was perhaps a matter which went more to the expediency of not sending him to gaol, and thus leaving her uncared for, than a matter comprehended by the statutory list of things which were to be regarded. But I see no reason for excluding from his "antecedents" the fact that he was living with and caring for his sister, a woman of eighty-six years. His "antecedents" were to be considered along with his "character". The word "antecedents" was said by Davidson J. in Re Stubbs (1947) 47 SR (NSW) 329, at p 338 , to be "an ambiguous word, which may refer either to previous history or to the parents of the offender and their conduct in his upbringing". I would not say anything to suggest any restriction of the breadth of meaning of a word which is commonly used today by social workers and probation officers. As used in s. 4 (1), it refers I think primarily to the offender's previous history and past record. It is a word which it seems came into use in English in this sense from its use in French law. A person's antecedents in that sense may tell for or against him. In R. v. Vallett (1951) 1 All ER 231, at p 232 , Lord Goddard C.J. said:

". . . the word 'antecedents' is as wide as can be conceived. On considering the appellant's antecedents it was found that she was a married woman living with a man who was not her husband, that she had been put in a position of trust, and that she had used the information she had so obtained to carry out persistent and wholesale thefts."

If bad behaviour of that kind can count for ill as a person's antecedents, I cannot see that the present offender's good behaviour to his sister should not count in his favour as among his antecedents. I am unable to agree with the view taken in the Supreme Court that, on the material before him, the magistrate could not exercise his discretion as he did. I add only that had I taken that view of the facts I would have thought the conclusion of Bright J. was correct. (at p277)

14. It is said that unless the magistrate's decision were overruled it would be a bad predecent and a bad example, apparently on the Shakespearian ground that "nothing emboldens sin so much as mercy". But I do not see that anyone who drives when drunk can, because of what the magistrate did in this case, expect leniency, unless perhaps he be a man of seventy-three, of good character, looking after an aged sister and about to lose his driving licence. In any event, I do not think that the wisdom of a magistrate exercising his discretion in a particular way, or the impression his doing so might create in the minds of others, can enter into the question whether he had, in law, power to do what he did. I would allow the appeal. (at p277)

Orders

Appeal allowed with costs. Order of Full Supreme Court set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.