Douran v Whisker - [1946] HCA 9

RESPONDENT. INFORMANT,

ON APPEAL FROM THE COURT OF NORFOLK ISLAND. High Court-AppealCompetency-Court of Norfolk Island Full jurisdiction

Information for an offence-Larceny triable summarily-Norfolk Island Act 1913-1935 (No. 15 of 1913-No. 14 of 1935), 88. 8, 11-Crimes Act 1900-1935 (No.40 of 1900-No. 13 of 1935) (N.S.W.), ss. 117, 139, 01*-Appeal Ordinance 1919-1936 (No. 1 of 1919-No. 14 of 1936) (Norfolk Island), S. 6-Judiciary Ordinance 1936 (No. 15 of 1936) (Norfolk Island).

The Norfolk Island Act 1913-1935 provides, by S. 8 (1), that " 'the Governor- General may make ordinances for the peace, order, and good government of Norfolk Island," and, by S. 11 (1), that " 'the High Court shall have juris- diction, with such exceptions, and subject to such conditions as are prescribed by Ordinance

to hear and determine appeals from all judgments, decrees, orders, and sentences

of the Chief Magistrate acting judicially in Norfolk Island." The Judiciary Ordinance 1936 (Norfolk Island) constitutes the Court of Norfolk Island with two jurisdictions, "full" and 'limited." The court in full jurisdiction is constituted by a judge, the The Crimes Act 1900-1935 (N.S.W.)

(a) simple larceny or provided -By S. 117: Whosoever

ing sections of this Act, namely by this Act made punishable like simple

One hundred and thirty-nine larceny, shall, except in the cases here-

the value of the property inafter otherwise provided for, be liable

in respect of which the offence is to penal servitude for five years." By S. 139 Whosoever steals

pounds, shall on conviction in a sum- woodwork, belonging to any building

imprisonment for twelve months or to be punished as for simple larceny." By

pay a fine of fifty pounds." 8. 501 (1) Whosoever commits

72 CLR 596

chief magistrate or a special magistrate, and has jurisdiction to punish all crimes and offences; the court in limited jurisdiction is constituted by a judge, the chief magistrate, a special magistrate or two or more justices of the peace, and has jurisdiction to punish all crimes and offences in respect of which a pecuniary penalty or a sentence of imprisonment not exceeding six months may be imposed. The Ordinance provides that the provisions of the Crimes Act 1900 and the Justices Act 1902 (N.S.W.), as amended to the date of the commencement of the Ordinance, shall, mutatis mutandis and SO far as applic- able, be in force in Norfolk Island and the jurisdiction and powers conferred by those Acts on judges and justices of the peace shall be exercised by the Court of Norfolk Island, that all crimes and offences (other than offences punishable summarily) shall be prosecuted by information in the name of a member of the police force appointed under the Police Ordinance 1931, and that all issues of fact joined on an information for an indictable offence (other than an offence punishable by death, for which a grand jury is provided) shall be tried by the court in…

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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Details

AGLC: Douran v Whisker [1946] HCA 9
Case: [1946] HCA 9
Decision Date: 13 April 1946

CaseChat Overview and Summary

The case of *Douran v Whisker* concerned an appeal to the High Court of Australia from a sentence imposed by the Court of Norfolk Island. The appellant, Douran, had been charged with stealing woodwork from a building, an offence contrary to section 139 of the *Crimes Act 1900-1935* (NSW), which was in force in Norfolk Island. Douran pleaded guilty and agreed to have the charge dealt with summarily, resulting in a fine of £50 with the option of twelve months' imprisonment. Douran appealed this sentence to the High Court.

The primary legal issues before the High Court were whether the appellant had a right of appeal to the High Court against the sentence, and if so, whether the sentence itself was lawful and appropriate. Specifically, the Court had to determine if section 6 of the *Appeal Ordinance 1919-1936* (Norfolk Island) precluded an appeal as of right from an indictable offence dealt with summarily, and whether the alternative sentencing structure imposed by the Chief Magistrate was permissible under the relevant legislation.

The Court held that Douran was entitled to appeal as of right. A majority of the judges reasoned that section 6 of the *Appeal Ordinance*, which restricted appeals from indictable offences to those brought with special leave of the High Court, did not apply to cases where an indictable offence had been dealt with summarily. They found that the Ordinance's provisions regarding appeals were intended to apply to trials conducted with a jury. Furthermore, the Court determined that the sentence imposed was unlawful because section 501 of the *Crimes Act* provided for alternative penalties (imprisonment or a fine), not for a fine with the option of imprisonment. The Court varied the decision of the Court of Norfolk Island, upholding the fine but modifying the default imprisonment provisions to comply with section 25 of the *Judiciary Ordinance 1936* (Norfolk Island).

Orders