Donohoe v Chew Ying

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.