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Commissioner for Railways (NSW) v Cavanough

Commissioner for Railways (NSW) v Cavanough

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Case Copied 20 June 1935 14 min read

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53 CLR 220

THE COMMISSIONER FOR RAILWAYS

(NEW SOUTH WALES) CAVANOUGH

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. H.

Criminal Law-AppealConviction set aside-Railways-Officer-Summary convic-

tion-Felony- Vacation of office-Officer reinstated when conviction set aside- Period of suspension-Unpaid salary-Government Railways Act 1912 (N.S.W.) SYDNEY,

(No. 30 of 1912), sec. 80-Crimes Act 1900 (N.S.W.) (No. 40 of 1900), sec. June 11, 20.

501 (Crimes (Amendment) Act 1924 (N.S.W.) (No. 10 of 1924), sec. 24).*

The respondent was an officer in the employ of the Commissioner for Rail- ways of New South Wales and, as such, received a certain salary. He was summarily convicted under sec. 501 of the Crimes Act 1900 (enacted by sec. 24 of the Crimes (Amendment) Act 1924) (N.S.W.) of stealing an article valued at six shillings. The conviction was set aside by a Court of Quarter Sessions on * The Crimes Act 1900 (N.S.W.), as

ceny; or (b) the offence of stealing amended by the Crimes (Amendment)

any chattel, money, or valuable security Act 1924 (N.S.W.), provides -By sec.

from the person of another 9: "Whenever by this Act a person is

and the amount of money or the value made liable to the punishment of death,

of the property in respect of which the or of penal servitude, the offence for

offence is charged which such punishment may be awarded

exceed ten pounds, shall on conviction is hereby declared to be and shall be

in a summary manner dealt with as a felony, and wherever in

liable to imprisonment for twelve this Act the term felony is used, the

months or to pay a fine of fifty pounds. same shall be taken to mean an offence

(2) The jurisdiction conferred punishable as aforesaid." By sec. 501 :-" (1) Whosoever commits or

cisable only by a stipendiary or police attempts to commit-(a) simple lar-

53 CLR 221

appeal. The respondent then sued the Commissioner for salary for the period between the date of his conviction, when he was suspended, and the date of the setting aside of the conviction, when he was reinstated. The Commis- sioner relied upon sec. 80 of the Government Railways Act 1912 (N.S.W.), which provides that an officer convicted of felony shall be deemed to have vacated his office.

Held that upon the setting aside of the conviction it was avoided ab initio; CAVANOUGH. therefore the respondent could not be deemed to have vacated his office and he was entitled to the salary claimed.

Per Starke J.: The conviction of the respondent under sec. 501 of the Crimes Act was not a conviction for a felony.

Decision of the Supreme Court of New South Wales (Full Court): Cavanough V. Commissioner for Railways, (1935) 35 S.R. (N.S.W.) 162; 52 W.N. (N.S.W.) 31, affirmed subject to a variation.

APPEAL from the Supreme Court of New South Wales.

In an action instituted in the Supreme Court of New South Wales, Cecil Herman Cavanough sued the Commissioner for Railways of that State to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1935] HCA 45
Decision Date: 20 June 1935

CaseChat Overview and Summary

The case involved Cecil Herman Cavanough, an officer employed by the Commissioner for Railways (NSW), who sued the Commissioner for unpaid salary. Cavanough had been summarily convicted of stealing an item valued at six shillings. Following this conviction, he was suspended from duty, and under section 80 of the Government Railways Act 1912 (NSW), he was deemed to have vacated his office. However, his conviction was subsequently set aside on appeal to Quarter Sessions, and he was reinstated. The dispute centred on whether Cavanough was entitled to salary for the period between his conviction and the setting aside of that conviction.

The High Court of Australia was required to determine two primary legal issues. Firstly, whether the summary conviction for stealing, under section 501 of the Crimes Act 1900 (NSW), constituted a conviction for a "felony" as contemplated by section 80 of the Government Railways Act 1912 (NSW). Secondly, the court had to consider the legal effect of a conviction being set aside on appeal, specifically whether it abrogated and obliterated the conviction entirely, thereby negating the consequence of vacating office.

The High Court, in a joint judgment, held that Cavanough was entitled to the unpaid salary. The reasoning was that when a conviction is set aside on appeal, it is avoided *ab initio*, meaning it is treated as if it never occurred. Consequently, Cavanough could not be deemed to have vacated his office under section 80 of the Government Railways Act 1912, as the prerequisite of a subsisting conviction for a felony was not met. The court noted that while the Supreme Court had reached a similar conclusion, it did so on the ground that the summary conviction was not for a felony, a point on which the High Court expressed no definitive agreement but indicated a different reasoning. The court emphasised that the reversal of a conviction means the individual is restored to their position as if they had never been charged.

The High Court varied the judgment of the Supreme Court by ordering that judgment be entered for the plaintiff on the demurrer to the defendant's second plea. Subject to this variation, the appeal was dismissed with costs.

Orders