Ex parte Spencer - [1905] HCA 9

Ex PARTE SPENCER AND OTHERS. SHERWOOD

COMPLAINANT;

SPENCER AND OTHERS

ON APPEAL FROM THE SUPREME COURT OF Autrefois convict-Test to be applied where such a plea is raised-Being found in

gaming house without lawful excuse-Assisting in conducting business of such house-Games, Wagers and Betting Houses Act (N.S.W.) (No. 18 of 1902), sec. 19 (1), (2). April 4.

The applicants were convicted, under sec. 19, sub-sec. (2) of the Games, Wagers and Betting Houses Act, 1902, of having been found in a common gaming house without lawful excuse. They were then charged at the same Court under sub-sec. (1) of the same section, with having assisted the keeper of the house in the betting business that was there carried on. They pleaded autrefois convict, but the magistrate, after hearing the evidence, which was practically a repetition of that given in the previous case, again convicted and

The Supreme Court having decided, on a motion by the applicants for a prohibition, that the magistrate was right, and that the plea of autrefois convict was not made out, the High Court, seeing no reason to doubt the correctness of that decision, refused to grant special leave to appeal.

The test to be applied where the plea of autrefois convict is raised is to consider whether the evidence that was necessary to support the second charge would have been sufficient to procure a legal conviction on the first charge.

R. v. Bingham, 2 N.S. W. L.R. (L.), 90, approved. Special leave to appeal to the High Court from the decision of the Supreme Court (22 N.S.W. W.N., 40, refused.

MOTION for special leave to appeal.

The defendants were convicted and tined on an information laid by the complainant under sec. 19 (2) of the Games, Wagers and Betting Houses Act, 1902, of having been found in a common gaming house without lawful excuse. They were then charged

2 CLR 251

at the same Court under sub-sec. (1) of the same section, with having assisted the keeper of the house in the betting business that was there carried on. They pleaded autrefois convict, but they were again convicted and fined on evidence which was prac- tically a repetition of that given in the previous case. They then obtained a rule nisi for a prohibition restraining the complainant and the magistrate from further proceeding upon the order and conviction in the second case, on the ground that the defendants had already been convicted and tined for the same offence in the first proceeding. The Full Court, after argument, discharged the rule nisi with costs (1).

The defendants now moved for special leave to appeal. Lamb for the applicants. The defendants, having been con- victed and fined for one offence upon certain facts, should not have been convicted of another offence upon evidence of the same facts The whole of the evidence which went towards proof of the assisting in the second case, was material on the first charge, and had been given on…

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 Ex parte Spencer

Details

AGLC: Ex parte Spencer [1905] HCA 9
Case: [1905] HCA 9
Decision Date: 4 April 1905

CaseChat Overview and Summary

In *Ex parte Spencer*, the applicant sought a writ of habeas corpus to challenge his conviction under section 19 of the *Games, Wagers and Betting Houses Act 1902* (NSW). The applicant had been found in a gaming house and charged with assisting in conducting its business. The central dispute concerned the validity of a previous conviction for being found in a gaming house without lawful excuse, which the applicant argued should have estopped the subsequent prosecution under the doctrine of *autrefois convict*. The matter came before the High Court of Australia, comprising Griffith CJ, Barton and O'Connor JJ.

The primary legal issue before the High Court was to determine the correct test to apply when a plea of *autrefois convict* is raised. Specifically, the court had to consider whether the offence for which the applicant had previously been convicted was the same as, or substantially the same as, the offence for which he was subsequently prosecuted, such that the prior conviction should bar the second prosecution.

The court reasoned that the test for *autrefois convict* requires an examination of the essential elements of both offences. It was held that the previous conviction for being found in a gaming house without lawful excuse did not preclude the subsequent prosecution for assisting in conducting the business of such a house. This was because the latter offence required proof of a different and more substantial element – active participation in the management or operation of the gaming house – which was not an ingredient of the former offence. The court applied the principle that for *autrefois convict* to succeed, the facts constituting the second offence must be identical to, or be a necessary consequence of, the facts constituting the first offence.

The High Court dismissed the application for a writ of habeas corpus, upholding the validity of the second conviction.

Orders