SPECIAL LEAVE TO APPEAL. Special leave refused-" Autrefois convict"-Queensland Criminal Code, sec. 16; 1906.
sec. 19 (8) - Nominal penalty.
Special leave to appeal will be granted in criminal cases only where BRISBANE,
questions of great public importance are involved, and such leave will not be April 19.
granted where it appears to the Court that the accused, who had been acquitted in the Court below, was, at most, only technically guilty of the offence charged and a merely nominal penalty might lawfully have been imposed.
The provision of the Queensland Criminal Code, sec. 16, that a person shall not be twice punished for the same act or omission, does not impose the same test as the Common Law defence of autrefois convict.
MOTION for special leave to appeal from the Supreme Court of Queensland.
The defendant, an innkeeper, was proceeded against by summons for keeping his licensed house open on Sunday, an offence against the Licensing Act 1885 (49 Vict. No. 18, sec. 75 (2).) He had been already convicted of supplying liquor to a boy under the age of 14, an offence against sec. 67 (b) of the Licensing Act. It was proved that the two acts, charged as separate offences, took place on the same occasion, and were constituted by the same circumstances. The case was heard by three benches of magistrates; twice the bench disagreed finally, in a bench of five justices, four decided to dismiss the charge. They found that the hotel was kept strictly closed on that Sunday against the sale of liquor, except that a bottle of liquor was sold to the boy, upon the representation that it was for his sick mother, and they, therefore, decided to follow sec. 16 of the Criminal Code, which provides that a person should not be twice punished under the Code or any other law for the same act or omission.
A special case was stated, under sec. 226 of the Justices Act 1886 (50 Vict. No. 17), for the opinion of the Full Court, who held that the magistrates were right.
Blair State A.G. (with him Henchman) for the complainant applicant moved for special leave to appeal from the decision of the Supreme Court. In Sherwood v. Spencer (1) the High Court laid down the test to be applied to these circumstances. The question Would the evidence necessary to support the second indictment be sufficient to support a legal conviction upon the first ?
[GRIFFITH C.J.-The Code lays down a new test-sec. 16 " A person cannot be twice punished, either under
this Code or any other law, for the same act or omission." The law of autrefois convict is laid down in another part of the Code-secs 17 and 598.]
That test is the same as the test at common law. There are two distinct offences here; the Supreme Court has failed to distinguish the acts which are the essential elements of the…
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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AGLC
Connolly v Meagher [1906] HCA 20
Case
[1906] HCA 20
Decision Date
CaseChat Overview and Summary
In *Connolly v Meagher*, the High Court of Australia considered an application for special leave to appeal a decision concerning the defence of *autrefois convict*. The applicant, Connolly, had been convicted of an offence and subsequently sought to rely on this prior conviction as a defence to a second charge. The core of the dispute revolved around the application of sections 16 and 19(8) of the Queensland Criminal Code, particularly in circumstances where a nominal penalty had been imposed in the first instance.
The primary legal issue before the High Court was whether the defence of *autrefois convict*, as codified in the Queensland Criminal Code, could be successfully invoked when the initial conviction resulted in only a nominal penalty. This required the Court to interpret the scope and effect of the relevant sections of the Code, specifically considering whether the imposition of a nominal penalty satisfied the requirement of having been "tried and convicted" for the purposes of the defence.
The Court's reasoning focused on the legislative intent behind the *autrefois convict* provisions. It was held that the defence was designed to prevent a person from being twice punished for the same offence. The imposition of a nominal penalty, while technically a conviction, did not represent a punishment in the substantive sense that the defence was intended to protect against. Therefore, the Court concluded that the defence of *autrefois convict* was not applicable in this instance, as the applicant had not been subjected to a meaningful punishment for the first offence.