Donohoe v Chew Ying - [1913] HCA 20

16 CLR 364

CHEW YING

ON APPEAL FROM A POLICE MAGISTRATE OF

NEW SOUTH WALES. SYDNEY,

Practice-Summons upon information for offence against Commonwealth Statute-

Issue of summons by justice of the peace for a State-Form of summons- Persons before whom defendant called on to appear-Judicial exercise of juris- diction-Appeal - Case stated-Notice of appeal not given within prescribed time-Special leave to appeal-Judiciary Act 1903 (No. 6 of 1903), sec. 39-

16 CLR 365

Justices Act 1902 (N.S.W.) (No. 27 of 1902), secs. 13, 99, 105, Second Schedule, Form M1-Justices (Amendment) Act 1909 (N.S. W.) (No. 24 of 1909), sec. 19.

The issue of a summons upon an information for an offence punishable on summary conviction is a matter of procedure for the summary conviction of a person charged with an offence, and a justice of the peace in issuing such a summons is not judicially exercising any jurisdiction.

Held, therefore, that a summons for an offence against a Statute of the Commonwealth, punishable on summary conviction, alleged to have been committed in New South Wales may be issued by a justice of the peace not- withstanding the provisions of sec. 39 of the Judiciary Act.

The form of a summons upon an information for an offence prescribed by the Justices Act 1902 (N.S.W.) Second Schedule, Form M1, requires the defendant to appear at a certain place and time "before such justices of the peace for the said State as may then be there." A summons issued upon information for an offence alleged to have been committed in New South Wales against the Immigration Restriction Act 1901-1910 required the defen- dant to appear "before such justice or justices of the peace for the said State as may then be there."

Held, that the summons was good, notwithstanding that under sec. 39 of the Judiciary Act the information could only be heard by a Stipendiary or Police Magistrate.

Although the appellant has not served notice of appeal within ten days after receiving a case stated pursuant to the Justices Act 1902 (N. S.W. and the Justices (Amendment) Act 1909 (N.S.W.), as required by sec. 105 of the Act of 1902 as amended by sec. 19 of the Act of 1909, special leave to appeal may be granted by the High Court on terms.

APPEAL from a Court of Petty Sessions of New South Wales exercising federal jurisdiction.

On 28th August 1912 an information was exhibited at Sydney, whereby John Thomas Tamplin Donohoe alleged that George Chew Ying had been guilty of a contravention of the Immigra- tion Restriction Act 1901-1910, Upon this information a summons was issued by Arthur Blix, a justice of the peace, commanding Chew Ying to appear on a specified day at a speci- fied hour at the Police Office, Moruya, "before such justice or justices of the peace for the said State as may then be there," to answer the information. The information came on for hearing before the Court of Petty Sessions at Moruya before M. J.…

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.

Continue reading Donohoe v Chew Ying

Details

AGLC: Donohoe v Chew Ying [1913] HCA 20
Case: [1913] HCA 20
Decision Date: 26 March 1913

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of a Police Magistrate in New South Wales. The appellant, John Thomas Tamplin Donohoe, had laid an information alleging a contravention of the *Immigration Restriction Act 1901-1910* by the respondent, George Chew Ying. A summons was issued by a justice of the peace, directing the respondent to appear at the Police Office, Moruya, "before such justice or justices of the peace for the said State as may then be there." At the hearing, the respondent objected to the jurisdiction of the Court of Petty Sessions, arguing that the summons was invalid because it was issued by a justice of the peace and did not require appearance before a Stipendiary or Police Magistrate, as stipulated by section 39 of the *Judiciary Act 1903*. The Police Magistrate upheld this second objection, leading to the informant's appeal.

The legal issues before the High Court were whether the summons was validly issued and whether the issue of such a summons constituted a judicial exercise of jurisdiction. Specifically, the Court had to determine if section 39 of the *Judiciary Act*, which restricted the judicial exercise of jurisdiction for offences against Commonwealth law to certain magistrates, invalidated a summons issued by a justice of the peace for an offence against a Commonwealth statute. The Court also considered whether the form of the summons, which referred to appearance before "such justice or justices of the peace for the said State as may then be there," was sufficiently compliant with the *Justices Act 1902* (N.S.W.) and the *Judiciary Act*. A preliminary objection was raised regarding the appellant's failure to serve the notice of appeal within the prescribed time, though special leave to appeal was granted.

The High Court held that the issue of a summons upon an information for an offence punishable on summary conviction is a procedural matter, not a judicial exercise of jurisdiction. Therefore, a justice of the peace could validly issue such a summons for an offence against a Commonwealth statute. The Court reasoned that the proviso in section 39 of the *Judiciary Act* concerning the judicial exercise of jurisdiction referred to the power to decide guilt or innocence, not the preliminary procedural step of issuing a summons. Furthermore, the Court found the summons to be good, as it substantially followed the form prescribed by the *Justices Act 1902* (N.S.W.) and was sufficient to inform the defendant of the requirement to appear before qualified justices. The magistrate's decision was therefore overturned.

The appeal was allowed, and the matter was remitted to be heard and determined by the Court of Petty Sessions.

Orders