Commissioner for Railways (NSW) v Cavanough

[1935] HCA 45

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 recover the sum of £88 10s. 6d. which, in the first count, he claimed was payable to him by the defendant for services rendered by him as the officer and servant of the defendant, and for wages and salary in respect of those services. In a second count the plaintiff alleged that he was employed by the defendant as a night officer in the railway service at a certain rate of salary that it was a term of the employment that he should not be suspended from duty otherwise than for misconduct, or breach of any rule, by-law, or regulation of the railway service; and that he was wrongfully suspended from duty otherwise than for misconduct, or breach of any rule, by-law or regulation of the railway service, whereby he was prevented from carrying out his duties as a night officer and was deprived of salary he could and would otherwise have earned. The defendant, in a second plea, pleaded, as to the whole cause of action, that prior to the conviction thereinafter referred to, the plaintiff was an officer within the meaning of the Government Railways Act 1912 (N.S.W.) and whilst SO employed and holding office he was convicted of a felony, whereupon his office became vacated and his employment terminated by virtue of sec. 80 of that Act; that an appeal by the plaintiff against the conviction was upheld and the conviction set aside; that after the

53 CLR 222

setting aside of the conviction the plaintiff was re-employed by the defendant in the railway service; and that the plaintiff's claim was one for wages alleged to be due to him in respect of the period between the vacation of office and the re-employment. By way of replication the (N.S.W.)

plaintiff stated that the conviction referred to by the defendant was a conviction in a summary manner before a police magistrate of the offence of stealing one primus burner of the value of six shillings, the property of the defendant that by the conviction it was adjudged that he should pay a fine of one pound, and one pound five shillings costs and that in default of payment he should be imprisoned for five days with hard labour.

The plaintiff demurred to the second plea, and the defendant demurred to the replication. The substantial grounds of the plain- tiff's demurrer were (a) that the facts alleged in the plea did not establish that he vacated office during and for the period in respect of which the claim for wages was made, and (b) that upon the uphold- ing of his appeal and the setting aside of his conviction he should be deemed never to have committed the alleged felony.

The effect of the judgments of the Full Court of the Supreme Court was that there should be judgment on the second plea for the defendant in demurrer, judgment for the plaintiff on his demurrer, and, as a whole, judgment for the plaintiff in demurrer Cavanough v. Commissioner for Railways 1.

From that decision the defendant now, by special leave, appealed to the High Court.

Bradley K.C. (with him Chambers), for the appellant. The respondent was convicted under sec. 501 of the Crimes Act 1900 (N.S.W.), of the offence of larceny. This is an offence punishable by penal servitude (see Crimes Act 1900, secs. 117-120), and is therefore a felony within the meaning of sec. 9 of that Act (see also Interpretation Act 1897 (N.S.W.), sec. 29, and Kenny's Outlines of Criminal Law 14th ed. (1933), pp. 221 et seq.). The Legislature intended that definition to apply to the word "felony" as used in sec. 80 of the Government Railways Act 1912.

[RICH J. referred to In re Burley 2.]

1(1935) 35 S.R. (N.S.W.) 162; 52 W.N. (N.S.W.) 31. 2(1932) 47 C.L.R. 53. 53 CLR 223

Upon his conviction the respondent automatically and without any action on the part of the appellant, "vacated his office" within the meaning of that expression in sec. 80. Statutory provisions similar to those contained in sec. 80 were before the Court in Hunkin V. Siebert 1. Sec. 501 of the Crimes Act 1900 is a procedure section: it does not create new offences. Although dealt with under sec. 501 as simple larceny, the offence was one of stealing in respect of which offenders are liable to the punishment of penal servitude (sec. 116). The test that should be applied in order to ascertain whether an offence is a felony is: Is the offender liable, as here, to the punish- ment of penal servitude ? (sec. 9). The word "office in sec. 80 of the Government Railways Act 1912, means employment. Upon a conviction for "any felony' the "office" is "vacated" automati- cally (In re Bodega Co. 2 ), and remains vacated whilst the conviction subsists. The setting aside of the conviction does not confer upon an offender a right to be reinstated his return to the employment depends upon a re-appointment by the Commissioner. Alternatively, the right of an offender, in that circumstance, is to be reinstated as from the date of the setting aside of the conviction. In either case he has no legal right to payment for the period between the date of the conviction and the date it was set aside (In re Bodega Co. 3 ).

O'Mara (with him Evatt), for the respondent. The conviction was set aside therefore the respondent was not "convicted of any felony."

[EVATT J. referred to R. v. Drury 4.

DIXON J. referred to In re Hay Langford v. City of Richmond 5.]

The effect of the setting aside of a conviction is that there never was a conviction as a matter of law. The same results flow from the setting aside of a conviction as from the grant of a pardon that is, the person concerned is entitled to all rights and privileges, including employment and payment, as if there had never been

1(1934) 51 C.L.R. 538, at pp. 541, 2(1904) 1 Ch. 276, at p. 283. 3(1904) 1 Ch., at pp. 286, 287. 4(1849) 3 Car. &K. 193, at p. 199 175 E.R. 517, at p. 520. 5(1922) V.L.R. 186 43 A.L.T. 158. 53 CLR 224

OF A. a conviction recorded against him (Hay v. Justices of the Tower

Division of London 1 ). The basal requirement of sec. 80 of the Government Railways Act 1912 that there must be a conviction for a felony is not satisfied therefore the respondent cannot (N.S.W.)

" be deemed to have vacated his office." The effects of a vacating CAVANOUGH. of office under sec. 80 are far-reaching; that section should, therefore,

be construed strictly.

Bradley K.C., in reply. The Legislature intended that a vacating of office under sec. 80 should operate as a complete severance of relationship between employer and employee. The appellant is not authorized by the Government Railways Act 1912 to pay salary or other remuneration to an employee in respect of the period between the date of the latter's conviction and the date on which that convic- tion was ultimately set aside.

[DIXON J. referred to Dr. Drury's Case (2).]

Cur. adv. vult. The following written judgments were delivered: -

RICH, DIXON, EVATT AND McTIERNAN JJ. By sec. 80 of the Government Railways Act 1912 (N.S.W.) it is provided that an officer convicted of felony shall be deemed to have vacated his office.

The respondent was an officer of the Commissioner and, as such, received a certain salary. He was summarily convicted of larceny under sec. 501 of the Crimes Act 1900 (N.S.W.). From that convie- tion he appealed to Quarter Sessions, which upheld his appeal and set aside the conviction (sec. 125 (1) of the Justices Act 1902 (N.S.W.)). During the period which elapsed from his conviction until its reversal he received no salary and the performance of his duties was suspended.

Upon these facts, which are not proved but appear from pleadings demurred to, the question for our decision is whether the respondent is entitled to recover the unpaid salary.

In our opinion he is SO entitled because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office.

1(1890) 24 Q.B.D. 561, at p. 565. (2) (1610) 8 Co. Rep. 141 b ; 77 E.R. 688. 53 CLR 225

An appeal is not a common law proceeding. It is a remedy given by statute (Attorney-General v. Sillem 1; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan 2 ).

The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions and describe a juris- diction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio.

The judgment reversed is the same as no judgment " " (per Coleridge J., R. v. Drury 3 ).

If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr. Drury's Case 4 ). It is utterly defeated and annulled " (Lord Sanchar's Case 5 ). Acts done according to the exigency of a judicial order afterwards reversed are protected they are ' acts done in the execution of justice, which are compulsive" (Dr. Drury's Case 6 ). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For "collateral acts executory are barred, but not collateral acts executed" (Dr. Drury's Case 7 ). But "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him " (Archbold's Criminal Pleading, Evidence and Practice, 21st ed. (1893), pp. 226, 227).

As the respondent in contemplation of law was never out of office, he is entitled to the salary attached to it. There is no allegation

1(1863) 2 H. &C. 581, at pp. 608, 2(1931) 46 C.L.R. 73, at p. 108. 3(1849) 3 Car. &K., at p. 199 77 E.R., at p. 691. 175 E.R., at p. 520. 4(1610) 8 Co. Rep., at p. 142 b; 77 609 ; 159 E.R. 242, at p. 253 (1864) 10 H.L. Cas. 704 : 11 E.R. 5(1613) 9 Co. Rep. 117 a, at p. 119 b; 77 E.R. 902, at p. 906. 6(1610) 8 Co. Rep., at p. 143 a ; 7(1610)8 Co. Rep. 141 b; 77 E.R.688. 53 CLR 226

that under the terms of his employment an actual performance of duty is a condition precedent to his right to salary.

The Supreme Court (Davidson and Street JJ., Stephen J. dissenting) reached a conclusion in favour of the respondent but based it upon (N.S.W.)

another ground. Their Honors all rejected the view which commends itself to us, but the majority were of opinion that a summary conviction for larceny is not a conviction of felony. The correctness of this interpretation of the Crimes Act was not fully argued upon the hearing of this appeal, but we desire to say that we must not be taken as assenting to it.

The judgment of the Supreme Court should be varied by entering judgment for the plaintiff on the demurrer to the second plea. Subject to the variation, the appeal should be dismissed with costs.

STARKE J. Cavanough sued the Commissioner for Railways of New South Wales for wages. The Commissioner, by a plea, alleged that the wages sued for were in respect of a period between Cavanough's vacation of office and his re-employment, and that Cavanough, an officer within the meaning of the Government Railways Act 1912, was convicted of a felony, and thereby vacated office, and thereafter he appealed and his conviction was set aside, whereupon he was re-employed. Cavanough, in his replication to the plea, alleged that the conviction in the plea mentioned was a summary conviction of the offence of stealing one primus burner of the value of six shillings, and that the conviction adjudged him to pay a fine of £1 and certain costs and, in default, imprisonment. Cavanough demurred to the Commissioner's plea, and the Commissioner to Cavanough's replication. The Government Railways Act 1912, sec. 80, provides: "If any officer is convicted of any felony shall be deemed to have vacated his office." Two questions arise, one whether the summary conviction of Cavanough constituted a conviction for felony the other whether the setting aside of that conviction abrogated and obliterated it.

The offence of simple larceny created by sec. 117 of the Crimes Act 1900 is undoubtedly a felony (see secs. 9, 116, 117, and the Interpretation Act 1897 (N.S.W.), sec. 29.) It may be that the pro- visions of the Crimes Act 1900, Part XIV., chapter I., providing for

53 CLR 227

the hearing and determination of certain indictable offences in a summary manner, do not alter the character or quality of the offence (Inre Burley 1 ) ). But chapters II. and III. deal with offences punish- able summarily as distinguished from indictable offences punishable summarily. Chapter III. comprises, amongst other offences, ' A. Assaults; B. Larceny and similar offences." The language used in the various sections is appropriate for the creation of offences, and no offence would exist, in many cases, but for the particular section. (See secs. 495, 496, 505, 506, 510, 512.) Sec. 501, under which Cavanough was charged and convicted, falls within chapter IIIB. and provides (1) Whosoever commits

(a) simple larceny or (b) the offence of stealing any chattel, money, or valuable security from the person of another

and the amount of money or the value of the property in respect of which the offence is charged

does not exceed ten pounds, shall on conviction in a summary

be liable to imprisonment for twelve months or to pay a fine of fifty pounds. 2 The jurisdiction be exercisable only by a stipendiary or police magistrate." But this provision does much more than prescribe a summary punishment for an offence already created: it states the offence and what is necessary to constitute it an offence punishable in a summary manner. The provisions of secs. 497 and 548A were referred to as inconsistent with this view. But the effect of those sections is that the offence punishable in a summary manner may be remitted for trial upon indictment, as an indictable offence may be remitted for summary hearing and determination under Part XIV., chapter I. In the result

I agree with Davidson and Street JJ. that Cavanough was not con- victed of any felony.

Even if Cavanough were convicted of a felony, however, the allowance of his appeal and the setting aside of his conviction abrogated and obliterated it. It is true that anyone who acts in execution of a judgment may justify under it, notwithstanding its removal, reversal or annulment, for it was good when given (Alleyne V. The Queen (2) Smallcombe v. Olivier 3 ). But the conse- quence of the reversal of a judgment or conviction is that it is

1(1932) 47 C.L.R. 53. 2(1855) 5 E. &B. 399 119 E.R. 529. 3(1844) 13 M. &W. 77; 153 E.R. 53 CLR 228

annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost (see Archbold's Criminal Pleading, Evidence and Practice, 22nd ed. (1900), p. 261; R. v. Drury 1; R. v. O'Keefe 2; R. v. Lee 3 ). The allegation (N.S.W.)

in the plea that Cavanough's appeal was upheld and his conviction set aside is in substance an allegation, when the relevant statute (Justices Act 1902) is examined, that the conviction was reversed and quashed. The consequence was that his conviction was obliterated, and, to use the language of the old forms, altogether held for nothing."

Judgment should be entered for the plaintiff in demurrer.

Judgment of the Supreme Court varied by entering

judgment for the plaintiff on the demurrer to the second plea. Subject to the variation appeal dismissed with costs. Solicitor for the appellant, F. W. Bretnall, Solicitor for Transport. Solicitors for the respondent, Landa &Lamaro.

1(1849) 3 Car. &K. 193 ; 175 E.R. 517. 2(1894) 15 L.R. (N.S.W.) 1; 10 W.N. (N.S.W.) 194. 3(1895) 16 L.R. (N.S.W.) 6 11 W.N. (N.S.W.) 121