ON APPEAL FROM THE SUPREME COURT OF Criminal Law-Mode of trial-Summarily before justices or on indictment-Justices 1955-1956.
not to adjudicate summarily if of opinion that charge is "from any circum- stances" fit to be prosecuted on indictment rather than disposed of summarily- MELBOURNE,
Whether previous criminal record or antecedents of defendant a circumstance to 1955,
be considered-Refusal of justices to accede to application to adjudicate summarily Oct. 19;
on ground of defendant's previous convictions-Adjournment to enable defendant 1956,
to test decision-Whether refusal to proceed summarily reviewable by Supreme June 15.
Section 72 of the Crimes Act 1928 (Vict.) after making provision in certain Fullagar and
cases for the summary trial before justices of the peace of persons charged with certain offences provides that if the person charged does not consent or if the justices are of opinion that the charge is from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily" the justices shall not summarily adjudicate thereon, but shall deal with the charge as a charge of an indictable offence.
Held, by McTiernan, Williams and Kitto JJ., Dixon C.J. and Fullagar J. dissenting, that the words any circumstances" in S. 72 enabled the magis- trates to have regard to the previous convictions of the person charged in making their determination whether to commit him or not, and that the phrase " any circumstances" should not be limited to refer to the circum- stances surrounding the charge.
Section 4 of the Justices Act 1928 provides that unless inconsistent with the context or subject matter " order' includes order adjudication decision grant or refusal of any application and also a determination of whatsoever kind
made by justices or any court of petty sessions and also any refusal by justices or any court of petty sessions to hear or determine any information or com- plaint or to entertain any application". Sub-section (1) of S. 150, so far as material, provides that where any person who feels aggrieved order of any court of petty sessions or justices
order ought not to have been made, he may apply for an order to review. Sub-section (4) provides that the expression any person who feels aggrieved includes as well as a defend- ant any informant to an information charging an indictable offence or one punishable upon summary conviction who is dissatisfied in respect of an order adjudication decision grant or refusal of any application or determination of whatsoever kind relating or incidental to such charge (including a refusal to hear or determine such information or to entertain any application) made given or come to by any justice or justices or any court of petty sessions By 8. 155 of the Justices Act 1928 the statutory remedy of…
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
Hall v Braybrook [1956] HCA 30
Case
[1956] HCA 30
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Patrick Hall, was charged with larceny. An application was made to have the charge dealt with summarily by justices, but this was refused by the magistrates on the ground that the defendant's previous convictions made the charge, from the circumstances, fit to be prosecuted as an indictable offence rather than summarily. The magistrates adjourned the hearing to allow the defendant to test this decision.
The legal issues before the High Court were twofold: first, whether the justices, in determining whether a charge was fit to be prosecuted as an indictable offence rather than summarily, were entitled to consider the previous criminal record or antecedents of the defendant; and second, whether the refusal by the justices to adjudicate summarily was an "order" that could be reviewed by the Supreme Court under the Justices Act 1928.
A majority of the High Court (McTiernan, Williams, and Kitto JJ.) held that the words "from any circumstances" in section 72 of the Crimes Act 1928 (Vict.) permitted the magistrates to consider the defendant's previous convictions when deciding whether to proceed summarily. However, Dixon C.J. and Fullagar J., dissenting on this point, considered that the phrase should not extend to the character and antecedents of the defendant, as this would contravene the principle that a tribunal of fact should not be informed of a defendant's criminal record before determining guilt. On the second issue, a majority of the Court (Dixon C.J. and Fullagar J. expressing no opinion on the first issue) held that the refusal by the justices to proceed summarily was an order open to review under the Justices Act.
The High Court allowed the appeal, quashed the order of the Supreme Court, and remitted the information to the magistrates for reconsideration according to law.