Commissioner for Railways (NSW) v Hailey

[1938] HCA 26

60 CLR 83

THE COMMISSIONER FOR RAILWAYS (NEW

SOUTH WALES) HAILEY

RESPONDENT. PLAINTIFF, Criminal LawFelony-Simple larceny-Summary conviction-Railways-Officer-

Vacation of office-Government Railways Act 1912-1931 (N.S.W.) (No. 30 of 1912-No. 61 of 1931), secs. 3*, 80-Crimes Act 1900-1929 (N.S.W.) (No. 40 of 1900-No. 2 of 1929), secs. 9*, 117*, 476-478*, 481, 501-Interpretation Act 1897 (N.S.W.) (No. 4 of 1897), sec. 29*-Ministry of Transport Act 1932 April 22, (N.S.W.) (No. 3 of 1932), secs. 5 (3), 6 1 (a), 9 (1), 12 (2)-Transport (Division of Functions) Act 1932 (N.S.W.) (No. 31 of 1932), secs, 3 (1) (a), 4 (3) (a), 14

1, 20, 21 (1). Sec. 80 of the Government Railways Act 1912-1931 (N.S.W.) provides that if an officer of the Department of Railways " is convicted of any felony" he shall be deemed to have vacated his office. Sec. 481 of the Crimes Act 1900- 1929 (N.S.W.) provides that every conviction after summary trial for an indict- able offence triable summarily by the consent of the accused under sec. 476 of *Sec. 3 of the Government Railways to be and shall be dealt with as a felony, Act 1912-1931 (N.S.W.) provides : " In this Act, unless the context or subject felony is used, the same shall be taken matter otherwise indicates or requires to mean an offence punishable as afore- (g) Officer means any said." Sec. 117: 'Whosoever com- officer, clerk, servant, or other person mits simple larceny, or any felony employed by the commissioners to by this Act made punishable like simple larceny, shall, except in the cases The Crimes Act 1900-1929 (N.S.W.) hereinafter otherwise provided for, be provides :-Sec. 9 : "Whenever by liable to penal servitude for five years." this Act a person is made liable to the Sec. 476 : 66 Where a person is charged punishment of death, or of penal servi- before one, or more than one, justice tude, the offence for which such punish- ment may be awarded is hereby declared following section, and the evidence for 60 CLR 84

that Act "shall have the same effect as a conviction upon an indictment for the offence would have had."

Held that an officer of the Department of Railways who is tried under sec. 476 of the Crimes Act 1900-1929 (N.S.W.) for the offence of simple larceny (N.S.W.)

Commissioner for Railways (N.S.W.) v. Cavanough, (1935) 53 C.L.R. 220, and Commissioner for Railways (N.S.W.) v. Pitman, (1936) 56 C.L.R. 144, distinguished.

Held, further, that notwithstanding the Transport (Division of Functions) Act 1932 (N.S.W.) a railway employee is an " officer within the meaning of that word as used in the Government Railways Act 1912-1931 (N.S.W.).

Decision of the Supreme Court of New South Wales (Full Court): Hailey V. Commissioner for Railways, (1937) 37 S.R. (N.S.W.) 482; 54 W.N. (N.S.W.)

APPEAL from the Supreme Court of New South Wales.

In an action brought in a District Court of New South Wales Leslie William Alfred Hailey claimed from the Commissioner for Railways of New South Wales the sum of £76 17s. 2d., as salary due to him by the defendant.

Judge Thomson found a verdict for the defendant, and judgment was entered accordingly.

An appeal to the Supreme Court was made under sec. 143 of the District Courts Act 1912 (N.S.W.) by way of a special case settled by the trial judge substantially as follows :-

This is an action by the plaintiff to recover from the defendant the sum of £76 17s. 2d. alleged to be salary due to the plaintiff between 7th December 1936 and 16th April 1937. the prosecution is in the opinion of such

tence upon the person so charged. justice or justices sufficient to put the

Sec. 477: "The offences referred to accused on his trial, but it appears to

in the last preceding section are him or them that the case may properly

(c) committing simple larceny.' Sec. be disposed of summarily, the said

478: " Where any person pleads guilty justice, or justices, shall, if-(1) the

to, or is convicted under the provisions accused consents to it being SO disposed

of this chapter of, an offence under the of, and does not desire to have the case

last preceding section, he shall be determined by a jury and (2) the

liable to imprisonment for twelve subject matter of the charge, or charges,

months, or to a fine of fifty pounds. that may be made in respect of any of

Sec. 29 of the Interpretation Act 1897 the offences mentioned, or the value of

(N.S.W.) provides "The expression the property involved, does not amount

felony used in an Act shall mean a to one hundred pounds, have jurisdic-

crime in respect of which the punish tion to hear and determine the charge

ment of death, or of penal servitude, in a summary manner, and pass sen-

may be awarded."

60 CLR 85

60 C.L.R.]

OF AUSTRALIA. At the hearing of the action in the Metropolitan District Court H. C. OF before me on 20th and 30th August 1937 the following facts were proved or admitted :-

1. That prior to 7th December 1936 the plaintiff was an officer within the meaning of the Government Railways Act 1912 (N.S.W.) as amended, and employed by the defendant as a night officer.

2. That on 7th December 1936 the plaintiff appeared before two justices of the peace sitting at Moss Vale Police Court, New South Wales, on a charge of stealing four gallons of benzine valued at eight shillings, the property of the defendant.

3. That the requirements of secs. 476 and 479 of the Crimes Act 1900 (N.S.W.) as amended were duly complied with and that the plaintiff consented to the case being disposed of summarily.

4. That the plaintiff thereupon pleaded guilty and was convicted of the offence by the justices and was fined £2 or in default four days' imprisonment with hard labour.

5. That the plaintiff has never been dismissed from the service and that if the plaintiff succeeded in this action he would be entitled to salary from 7th December 1936, the date of the above-mentioned conviction, to 16th April 1937, the date of service of the notice of action herein.

Upon the above facts proved or admitted I held that the plaintiff on 7th December 1936 had been convicted of a felony within the meaning of sec. 80 of the Government Railways Act 1912 as amended and thereby must be deemed to have vacated his office as from that date. I therefore found a verdict for the defendant and entered judgment accordingly.

The questions for the opinion of the court were :-

1. Whether the decision was erroneous in law. 2. Whether the plaintiff on 7th December 1936 had been con-

victed of a felony and therefore must be deemed to have vacated his office within the meaning of sec. 80 of the Government Railways Act 1912 as amended. 3. Whether the plaintiff was entitled to a verdict for £76 17s. 2d. The Full Court of the Supreme Court answered the questions as follows 1. Yes; 2. No; and 3. Yes. It ordered that the appeal

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be allowed with costs and that judgment be entered for the plaintiff for £76 17s. 2d.: Hailey v. Commissioner for Railways 1.

From that decision the plaintiff appealed, by special leave, to the High Court. (N.S.W.)

Evatt K.C. (with him Dwyer), for the respondent. It is submitted as a preliminary point that the special leave to appeal granted herein should be rescinded. Upon the passing of the Transport (Division of Functions) Act 1932, the respondent ceased to be an officer within the meaning of sec. 80 of the Government Railways Act and became an officer under the first-mentioned Act (Hamilton V. Halesworth 2 ).

Bradley K.C. (with him Chambers), for the appellant. The preliminary point raised on behalf of the respondent is concluded against him by par. 1 of the special case. This court has never before directly considered sec. 476 of the Crimes Act, under which the respondent was charged and convicted. For that reason Commissioner for Railways (N.S.W.) v. Cavanough 3 and Commis- sioner for Railways (N.S.W.) v. Pitman 4, in which sec. 501 of the Crimes Act was the particular statutory provision concerned, are distinguishable and do not apply. The respondent was convicted under secs. 476 and 477 of the offence of committing simple larceny and, by the joint operation of secs. 116, 117 and 481 of the Act, he thereupon became liable to penal servitude; thus the offence of which he was convicted was a felony within the meaning of sec. 9 of the Act and brought him within the scope of sec. 80 of the Government Railways Act. The respondent's offence does not come within the exceptions provided for by sec. 117. Those exceptions are only as to the term and are not as to the quality of the punish- ment. The procedure under sec. 476 is different from the procedure under sec. 501. The jurisdiction and powers exercisable by justices under sec. 476 differ from those exercisable by magistrates under sec. 501 (In re Burley 5 ). The test under sec. 9 is the offence and the punishment therefor to which the offender has rendered

1(1937) 37 S.R. (N.S.W.) 482 54 2(1937) 58 C.L.R. 369. 3(1935) 53 C.L.R. 220. W.N. (N.S.W.) 182. 4(1936) 56 C.L.R. 144. 5(1932) 47 C.L.R. 53, at pp. 55, 58. 60 CLR 87

60 C.L.R.]

OF AUSTRALIA. himself liable. The actual punishment awarded is immaterial (Cavanough v. Commissioner for Railways 1; Commissioner for Railways (N.S.W.) v. Pitman 2 ). The provisions of sec. 481 have an important bearing on the matter. The simple larceny referred to in secs. 476 and 477 is the simple larceny caught up by secs. 9 and 117 and which existed from the commencement of the Crimes Act in 1900. Sec. 501 is a comparatively recent amendment to the Act and refers to offences different from those referred to in those other sections.

Evatt K.C. Upon the assumption that the decision in Commis- sioner for Railways (N.S.W.) v. Pitman 3 is not challenged. the appellant is limited to a consideration of sec. 481 only. Except for certain specified functions, the control, management and adminis- tration generally of the railways service are no longer effected under the Government Railways Act. The powers, duties and functions of the appellant commissioner were conferred and imposed upon him by the Transport (Division of Functions) Act 1932, and, in the exercise of those powers and the performance of those duties and functions, he is assisted by officers, of whom the respondent is one, who became such " officers and employees of the Department of Railways' by virtue of sec. 21 (1) of that Act, that is, they became officers and employees of the commissioner. See also Ministry of Transport Act 1932, secs. 9, 10. Upon the passing of those Acts the respondent ceased to be a person employed by the commissioner ' to assist in the execution of " the Government Railways Act, within the meaning of sec. 3 of that Act. It follows that, although sec. 80 of that Act has not been repealed, it has been rendered sterile. Regard should be had to the Act by which an office or position was created in order to determine the rights, privileges, powers, duties and obligations of occupants of that office or position (Hamilton V. Halesworth 4 ), that is to say, here, in the circumstances, the respondent is not affected by sec. 80 of the Government Railways Act because although, as stated in par. 1 of the special case, he was prior

1(1935) 35 S.R. (N.S.W.) 162, at 2(1936) 56 C.L.R., at pp. 150, 154, pp. 165-167 ; 52 W.N. (N.S.W.) 31, at pp. 32, 33. 3(1936) 56 C.L.R. 144. 4(1937) 58 C.L.R. 369. 60 CLR 88

to 7th December 1936 an officer under that Act, he was not such an

officer when he pleaded guilty to the offence; he was then employed by the appellant as a night officer. Alternatively, and assuming that the respondent is an officer within the meaning of sec. 80, he (N.S.W.)

was not convicted of a felony within the meaning of that section. The Crimes Act does not provide that every larceny shall be a felony. An examination of that Act shows that larcenies fall into two categories, namely, felonies and misdemeanours. The Act makes the value of the stolen goods an essential feature of larceny. In many sections acts of larceny are made punishable by a punish- ment less than penal servitude; those larcenies, therefore, obviously are not felonies, and as the punishment expressly provided by sec. 478 is considerably less than the punishment specified in sec. 117, it follows that the offence under sec. 476 to which the respondent pleaded guilty is one of the cases excepted from the operation of sec. 117. The real purpose of secs. 480 and 481 is to deal with the effect of dismissal or conviction. The effect of a conviction under sec. 476 was considered in Ex parte Pritchard 1. Sec. 9 of the Crimes Act is not concerned with the general classification of crimes: it relates to the wrongdoing of an offending person and deals with a specific instance at a specific point of time.

Bradley K.C., in reply. Upon a true interpretation of the Ministry of Transport Act 1932 and the Transport (Division of Functions) Act 1932, the Commissioner for Railways and his officers are in the same position as if he and they were the commissioner and officers respectively under the Government Railways Act. Either the present commissioner "stands in the shoes" of the commissioners appointed under that Act, or, alternatively, by virtue of sec. 21 of the Transport (Division of Functions) Act 1932, the officers and employees are officers and employees of the Department of Railways, which is a different employer from the administrator of the Act, namely, the present body corporate. If that be correct the appellant is not an employer at all, and, therefore, is not liable for the amount claimed. Sec. 481 deals with two different matters, namely, (a) that a conviction shall have the same effect as a conviction

1(1918) 18 S.R. (N.S.W.) 434 35 W.N. (N.S.W.) 129. 60 CLR 89

upon an indictment, and (b) that upon conviction or dismissal no person shall be afterwards liable to prosecution for the same cause.

[EVATT K.C., by leave, referred to Ex parte Cusack Re Searson 1.]

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

LATHAM C.J. The question which arises upon this appeal is whether the plaintiff Hailey was on 7th December 1936 convicted of a felony SO that he vacated his office as an officer employed by the Commissioner for Railways. Hailey was, on the date mentioned, convicted by two justices of the peace on the charge of stealing four gallons of benzine valued at eight shillings. He was prosecuted under the provisions of sec. 476 of the Crimes Act 1900 as amended. That section provides that where a person is charged before a justice or justices with an offence mentioned in sec. 477 and the evidence for the prosecution is, in the opinion of the justice or justices, suffi- cient to put the accused on his trial, but it appears to the justice or justices that the case may be disposed of summarily, then the said justice or justices shall, if the accused consents to it SO being disposed of and does not desire to have the case determined by a jury, and the subject matter of the charge does not amount to one hundred pounds, have jurisdiction to hear and determine the charge in a summary manner. Among the offences specified in sec. 477 is the offence of committing simple larceny. The requirements of sec. 476 were satisfied, the accused consenting to the charge being dealt with by the justices. He pleaded guilty and was fined £2 or in default four days' imprisonment. Sec. 478 provides that where a person pleads guilty to an offence which is dealt with under secs. 476 and 477 the punishment may be imprisonment for twelve months or a fine of £50.

Sec. 80 of the Government Railways Act 1912 provides that 'if any officer is convicted of any felony

he shall be deemed to have vacated his office." The Crimes Act 1900, sec. 9, is as follows " Whenever by this Act a person is made liable to the

1(1935) 52 W.N. (N.S.W.) 214. 60 CLR 90

A. punishment of death, or of penal servitude, the offence for which

such punishment may be awarded is hereby declared to be and shall be dealt with as a felony, and wherever in this Act the term felony is used, the same shall be taken to mean an offence punishable as (N.S.W.)

aforesaid." The Interpretation Act 1897, sec. 29, provides that the expression "felony" used in an Act shall mean a crime in respect of which the punishment of death or of penal servitude may be awarded. Sec. 117 of the Crimes Act provides as follows "Who- soever commits simple larceny, or any felony by this Act made punishable like simple larceny, shall, except in the cases hereinafter otherwise provided for, be liable to penal servitude for five years."

When a person is convicted of simple larceny under sec. 476 of the Crimes Act he is not liable to penal servitude (See sec. 478, already referred to). Accordingly it is urged on behalf of the plaintiff that it cannot be said that he was convicted of a felony and that. therefore, sec. 80 of the Government Railways Act does not apply, with the result that he is entitled to payment of salary notwithstanding his conviction.

A similar question has arisen with respect to sec. 501 of the Crimes Act which also provides for summary proceedings in the case of simple larceny, and which also does not authorize a sentence of penal servitude to be imposed. Cases which arise under sec. 501 were considered in Cavanough v. Commissioner for Railways 1; on appeal 2; and in Commissioner for Railways (N.S.W.) v. Pitman 3. In Pitman's Case (3) there was an even division of opinion in this court and the result was that the decision of the Full Court of New South Wales was affirmed. That decision was that a convic- tion for simple larceny under sec. 501 did not constitute a conviction for a felony within the meaning of sec. 80 of the Government Railways Act. The Full Court took the view in this present case that it followed from the cases mentioned that the prosecution in the present case must be regarded as a prosecution for an offence created by sec. 501 under a procedure provided by sec. 476 and that, therefore, in accordance with the decisions in those cases, the plaintiff had not been convicted of a felony.

1(1935) 35 S.R. (N.S.W.) 162 52 2(1935) 53 C.L.R. 220. W.N. (N.S.W.) 31. 3(1936) 56 C.L.R. 144. 60 CLR 91

In my opinion, however, this case can be decided without consider- ing the questions which arose in Cavanough's Case 1 and Pitman's Case 2. There is a provision in the Crimes Act which specifically applies to convictions under sec. 476, but which is not made applic- able to convictions under sec. 501. This provision is sec. 481. That section is as follows "Every conviction in any such case shall have the same effect as a conviction upon an indictment for the offence would have had, and no person convicted as aforesaid, or who obtains a certificate of dismissal under the last preceding section, shall be afterwards liable to prosecution for the same cause."

It is argued for the respondent that the effect of this section is simply to make available the defence of autrefois convict to a person committed under sec. 476. But this construction gives no effect whatever to the first part of the section. That first part is an express provision that every conviction under sec. 476 shall have " the same effect as a conviction upon an indictment for the offence would have had." There is no doubt that if a person were convicted of simple larceny upon indictment he could be punished by penal servitude (sec. 117). Sec. 478 prevents the infliction of penal servitude, but sec. 481 preserves such other effect " as follows by law upon a conviction upon indictment. Vacation of office under such a provision as sec. 80 of the Government Railways Act is an " effect " of a conviction upon indictment in the case of simple larceny, and therefore, in my opinion, the conviction of the plaintiff under sec. 476 must be regarded as producing the same result. Vacation of office is a direct and immediate effect of such a convic- tion. It is a result produced by the conviction itself.

It has been argued that the consequences of this view are such as to show that it should not be adopted if any other view is possible. It is said, for example, that one result would be that there would be an appeal to the Court of Criminal Appeal from convictions by magistrates under sec. 476, because sec. 5 of the Criminal Appeal Act 1912 gives a right of appeal to a person "convicted on indict- ment." It is not necessary for the purpose of the present appeal to decide this and other questions of a similar kind which were raised

1(1935) 35 S.R. (N.S.W.) 162 52 W.N. (N.S.W.) 31 ; 53 C.L.R. 220. 2(1936) 56 C.L.R. 144. 60 CLR 92

in argument. But it may be pointed out that a person convicted under sec. 476 is not in fact a person who has been convicted on indictment, and that sec. 481 does not purport to make him such a person. (N.S.W.)

It has been further argued in this court, though not in the Supreme Court, that the plaintiff is not an officer within the meaning of sec. 80 of the Government Railways Act. This contention is not, in my opinion, open upon the case which has been stated. Par. 1 of the case is as follows: "That prior to 7th December 1936 the plaintiff was an officer within the meaning of the Government Railways Act 1912 as amended, and employed by the defendant as a night officer." These words are clear, and it is not open to either party upon appeal to this court to contest the accuracy of propositions contained in the case stated. It was, however, urged that it was legally impossible for the plaintiff to be an officer within the meaning of the Government Railways Act because statutory alterations made in the provisions relating to the administration of the railways department made it impossible for him to be a person employed by the commissioner " to assist in the execution of this Act " (Government Railways Act, sec. 3). The argument was founded upon Hamilton v. Halesworth

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principle of law, to make it impossible for him to be an officer employed 'to assist in the execution " of the Government Railways Act.

An examination of the relevant statutes shows that the contention submitted cannot be supported on the words of the Acts. My brother Dixon has examined this question in detail, and it is sufficient for me to say that I agree in his reasoning and in his conclusion.

I am, therefore, of opinion that the appeal should be allowed and that the questions in the special case should be answered as follows:- 1. No. 2. Yes. 3. No. The judgment of the Supreme Court should be set aside, and the judgment of the learned District Court judge should be restored.

RICH J. I have read the judgments of the Chief Justice and Dixon J., and agree that the appeal should be allowed and that the questions in the special case should be answered as follows :-1. No. 2. Yes. 3. No.

DIXON J. The plaintiff was employed in the Department of Railways as a night officer. A charge was laid against him of stealing four gallons of benzine, valued at eight shillings, the property of the Commissioner for Railways. The charge was heard before two justices, who were of opinion that the evidence was sufficient to put him on his trial, but that the case might properly be disposed of summarily. The plaintiff thereupon consented to the case being SO disposed of. Under sec. 476 of the Crimes Act 1900 this gave the justices jurisdiction to hear and determine the charge in a summary manner, After following the procedure laid down in such a case they convicted the plaintiff and fined him two pounds or in default four days' imprisonment. Sec. 80 of the Government Railways Act 1912 provides that, if any officer is convicted of any felony, he shall be deemed to have vacated his office.

The question for decision is whether the plaintiff lost his office under this provision.

His counsel advances two reasons against an affirmative answer. First, it is said that he does not fall within the statutory definition of an officer; secondly, it is said that the crime of which he was

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convicted does not answer the statutory definition of felony. The

first contention depends on the definition of the word officer" contained in sec. 3 of the Government Railways Act 1912-1931. The word means a person " employed by the commissioners to assist (N.S.W.)

in the execution of this Act." The contention is that, since the passing of the Transport (Division of Functions) Act 1932, officers of the Department of Railways are no longer employed to assist in the execution of the Government Railways Act. The statutory reorganization of the control of transport brought about by the Transport (Division of Functions) Act 1932 supplies the foundation of the argument. A Department of Transport had been created under an earlier Act of the same year, viz., the Ministry of Transport Act 1932 (No. 3), the plan of which, however, was allowed full opera- tion for nine months only. It was to include the government department which administered the Government Railways Act 1912- 1931. A Board of Commissioners was erected who were to execute and perform the duties, powers, authorities and functions of various bodies, including the Railway Commissioners, who were directed to "cease to function." The statute provided that, in the construc- tion of any Act passed for the exercise of any power, authority, function, or duty transferred to the Board of Commissioners, a reference to the Railway Commissioners should be read as a reference to the Board of Commissioners (See secs. 5 (3), 6 (1) (a), 9 (1) and 12 (2) of Act No. 3 of 1932).

It will be seen that, while this Act was in full operation, railway servants, though no longer employed by the commissioners, con- tinued to be employed to assist in the administration of the Govern- ment Railways Act 1912-1931, a task transferred to the Board of Commissioners as a body within the Department of Transport. The result of reading the references to the Railway Commissioners in the latter Act as references to the Board of Commissioners would appear to be that railway servants were employed by the board. But, in any case, it is clear that they continued to be governed by the provisions of the Government Railways Act 1912-1931.

The Transport (Division of Functions) Act 1932 establishes a Ministry of Transport divided into departments, one of which is the Department of Railways. Under this Act, it is to be administered

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by a Commissioner for Railways who is to exercise and perform the powers, authorities, duties and functions which, at the com- mencement of the Act, were exercised and performed by the Board of Commissioners. The powers, authorities, duties and functions of that board, which was in its turn to "cease to function," are to be executed and performed by the respective commissioners appointed under the Transport (Division of Functions) Act, one of which is the Commissioner for Railways. Employees of the Department of Transport employed in connection with the administration of any power, authority, duty or function of the Board of Commissioners required or permitted under the Transport (Division of Functions) Act to be exercised and performed by the Commissioner for Railways are to become employees of the Department of Railways. Refer- ences in any Act to the Board of Commissioners are to be read as references to the appropriate commissioner appointed under the Transport (Division of Functions) Act (See secs. 3 (1) (a), 4 (3) (a), 14 (1), 20 and 21 (1) of Act No. 31 of 1932). These provisions appear to me effectually to place the administration of the Govern- ment Railways Act 1912-1931 under the Commissioner for Railways and to continue that statute in operation, subject only to the sub- stitution of the Commissioner for Railways for the Railway Commis- sioners mentioned in it. It is not, I think, material to inquire whether the commissioner or the Crown is to be regarded as the employer. If the latter, the definition of officer in the Government Railways Act 1912-1931 must be taken as no longer applicable according to its exact terms. If the former, the operation of sec. 20 of the Transport (Division of Functions) Act 1932 upon sec. 12 (2) of the Ministry of Transport Act 1932 is simply to make the definition refer to the Commissioner for Railways. In any event, it appears to me that railway employees remain subject to the Government Railways Act 1912-1931, which governs the terms of their employ- ment, including tenure. In my opinion the plaintiff was an officer within the meaning of sec. 80 of the last-mentioned Act. He lost his office, if, when he was convicted by the magistrates, he was convicted of a felony.

The second contention is that it was not a conviction of felony. The magistrates acted under secs. 476-478 of the Crimes Act 1900,

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not under sec. 501, the provision upon which Commissioner for

Railways (N.S.W.) v. Pitman 1 turned. In that case, however, the operation of secs. 476-478 and of sec. 481 was discussed. I expressed my opinion that a conviction under those provisions (N.S.W.)

produced the same effect as a conviction for the same offence or offences upon indictment 2. I can see no reason to restrict the meaning of sec. 481, which I should have thought was designed to insure, among other things, that the consequences to the status of the prisoner flowing from a conviction on indictment for any of the offences enumerated in sec. 477 should flow from a conviction for the same offence by justices under secs. 476, 478 and 479. In my opinion the plaintiff lost his office.

I think the appeal should be allowed. The order of the Supreme Court should be discharged. In lieu thereof it should be ordered that the questions in the special case should be answered: 1. No; 2. Yes; 3. No, and the appeal from the District Court to the Supreme Court should be dismissed with costs. No term in relation to costs was imposed by the order of this court granting special leave to appeal, but I think that no order as to costs of this appeal should be made.

Appeal allowed. No order as to costs. Judgment

of Supreme Court set aside. Questions in special case answered as follows:--(1) No. (2) Yes. (3) No. Judgment of the District Court restored. Solicitor for the appellant, Fred. W. Bretnall, Solicitor for Trans- port.

Solicitors for the respondent, Abram Landa &Co.

1(1936) 56 C.L.R. 144. 2(1936) 56 C.L.R., at pp. 148, 149.