Isaacs v McKinnon - [1949] HCA 64

80 CLR 502

ON APPEAL FROM THE FEDERAL COURT OF BANKRUPTCY. A. Bankruptcy-Federal Court of Bankruptcy-Jurisdiction-Offence by bankrupt

against Bankruptcy Act-Summary trial-Conviction-Release on recognizance -Condition that bankrupt make payments to Official Receiver for benefit of MELBOURNE,

creditors--Validity of condition-Non-compliance with condition-Offence Oct. 11, 12;

punishable under Crimes Act by " imprisonment for the period provided by law in respect of the offence of which " the offender was previously convicted " Whether offence indictable-Penulty "may be imposed by the court by which the offender was originally convicted or by any court of summary jurisdiction Original offence punishable by imprisonment for one year, except that on summary trial by Court of Bankruptcy maximum limited to six months-Power - of Court of Bankruptcy to try offence against Crimes Act summarily-Sentence which may be imposed by that Court--Constitution (63 &64 Vict. c. 12), 8. 80-Acts Interpretation Act 1901-1948 (No. 2 of 1901-No. 79 of 1948), 88. 42, 43-- Bankruptcy Act 1924-1947 (No. 37 of 1924-No. 52 of 1947), SS. 61, 91, 101, 119 (6) (c), (d), (7), 210 (3) (c), 212 (1) (a), 217, 218-Crimes Act 1914-1946 (No. 12 of 1914-No. 77 of 1946), ss. 12, 20.

On summary trial by the Federal Court of Bankruptcy under S. 217 of the Bankruptcy Act 1924-1947 a bankrupt was convicted of an offence against the Act. The offence was one for which the offender was liable to imprison- ment for a year, if tried otherwise than summarily under S. 217 (1) (a) of the Act, but which, on summary trial by the Court of Bankruptcy, was, by reason of S. 217 (2), punishable by imprisonment for no longer than six months. Under S. 20 (1) of the Crimes Act 1914-1946 the court, without passing sentence on the bankrupt, released him on a recognizance a condition of which was

80 CLR 503

that for five years he should pay to the Official Receiver £160 a year in quarterly instalments for the benefit of his creditors. On the information of the Official Receiver, the bankrupt was tried summarily by the Court of Bankruptcy for an offence against S. 20 (2) of the Crimes Act in that he had failed to comply with the condition of the recognizance, and he was sentenced to ten weeks' imprisonment. The penalty prescribed by S. 20 (2) of the Crimes Act was "imprisonment for the period provided by law in respect of the offence of which" the offender " was previously convicted," and, under S. 20 (3), it might be imposed by the court by which the offender was originally convicted or by any court of summary jurisdiction."

(1) By Latham C.J., Rich, McTiernan and Webb JJ. (Dixon J. dissenting), that the Court of Bankruptcy had jurisdiction to try the charge of an offence against S. 20 (2) of the Crimes Act summarily. That offence was not an indict- able offence by reason of the provision of S. 42 of the Acts Interpretation Act 1901-1948 that " offences against any…

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: Isaacs v McKinnon [1949] HCA 64
Case: [1949] HCA 64
Decision Date: 21 December 1949

CaseChat Overview and Summary

The case of *Isaacs v McKinnon* concerned an appeal from a decision of the Federal Court of Bankruptcy. The bankrupt, Mr. Isaacs, had been convicted of offences under the *Bankruptcy Act 1924-1947* and subsequently released on a recognizance. A condition of this recognizance required him to make annual payments to the Official Receiver for the benefit of his creditors. When Mr. Isaacs failed to comply with this condition, he was charged with an offence under section 20(2) of the *Crimes Act 1914-1946* for breaching the recognizance. The Federal Court of Bankruptcy, sitting as a court of summary jurisdiction, convicted him of this offence and sentenced him to ten weeks' imprisonment.

The primary legal issues before the High Court were whether the Federal Court of Bankruptcy had the jurisdiction to try the bankrupt summarily for the offence of breaching the recognizance, and whether the condition imposed in the recognizance was valid. The bankrupt argued that the offence of breaching the recognizance was an indictable offence, as the potential penalty derived from the original Bankruptcy Act offences (up to one year's imprisonment) exceeded six months, and therefore it should have been tried by a jury. He also contended that the condition requiring payment to the Official Receiver was contrary to the policy of the *Bankruptcy Act*.

A majority of the High Court, comprising Latham C.J., Rich, McTiernan, and Webb JJ., held that the Court of Bankruptcy did have jurisdiction to try the charge summarily. They reasoned that section 20(3) of the *Crimes Act* expressly permitted the court that originally convicted the offender, or any court of summary jurisdiction, to impose the penalty for breaching a recognizance. This provision, they found, indicated a contrary intention to section 42 of the *Acts Interpretation Act 1901-1948*, which generally classifies offences punishable by imprisonment exceeding six months as indictable. Furthermore, the majority found that the condition of the recognizance was not contrary to the policy of the *Bankruptcy Act*, as it served to secure the observance of the Act's provisions and was within the court's discretion under section 20(1) of the *Crimes Act*. Dixon J. dissented on both these points.

The appeal was dismissed. The Court also ordered that the new Official Receiver, Mr. Ormonde Lloyd Jones, be substituted as the respondent in place of the deceased Mr. Archibald McKinnon.

Orders