ON APPEAL FROM THE SUPREME COURT OF Justices-Complaint-Disclosure of offence-Sufficiency of particulars--Latent H. C. o.
ambiguity-Words applicable to a number of alleged offences-Refusal by prose- cutor to specify offence alleged-Power to dismiss complaint-Licensing Act 1932-1935 (S.A.) (No. 2102-No. 2241), sec. 209*-Justices Act 1921-1936 (S.A.) (No. 1479-No. 2261), secs. 22a, 51, 55, 56, 181-183*.
M. laid a complaint against J. in the language of sec. 209 (1) of the Licensing Act 1932-1935 (S.A.), alleging that J. was the licensee of specified premises out of which certain persons were seen coming during prohibited hours. In the course of correspondence between the parties and their solicitors in furnishing particulars, it appeared that M. alleged and proposed to prove that about thirty men were seen coming in or out of the premises between the times stated, and that M. was in a position to give the exact time when each * Sec. 209 (1) of the Licensing
on the premises for any purpose Act 1932-1935 (S.A.) provides Any
(whether the sole purpose or not) con- trary to the provisions of this Act or premises any person is seen coming
(b) was on the premises contrary to the during any Sunday afternoon and two o'clock in
able steps to prevent the said person from entering the premises and to six o'clock in the evening and eight
remove him therefrom or (c) was on the o'clock in the evening
premises without the knowledge of the be guilty of an offence
and that the licensee he proves to the satisfaction of the
exercised all practicable diligence special magistrate or justices hearing
to prevent the said person from entering the case, that the person-(a) was not
man was seen, but could prove the identity of only four of the men. Later M. withdrew the letter giving particulars as to the thirty men, and a statement that an unknown person was seen coming out of the premises during the specified hours on the date stated was substituted. At the hearing the com- plaint was amended to refer to "a certain person" instead of "certain per- sons." J. then contended that M. should supply further particulars to show which of the thirty men was the man whose emergence from the hotel was the subject of the complaint. M. refused to do so, and the complaint was dis- missed on the ground that, within the meaning of sec. 182 (1) of the Justices Act 1921-1936 (S.A.), it was defective in substance and J. was prejudiced by
Held, by Dixon, Evatt and McTiernan JJ. (Latham C.J. dissenting), that the complaint was rightly dismissed.
Decision of the Supreme Court of South Australia (Full Court): Miller V. Johnson, (1937) S.A.S.R. 323, reversed.
APPEAL from the Supreme Court of South Australia.
On a complaint laid by William Charles Miller of Adelaide, police prosecutor, Paul Johnson of Adelaide, licensed person, was charged that on 29th November 1936, at Adelaide,…
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
Johnson v Miller [1937] HCA 77
Case
[1937] HCA 77
Decision Date
CaseChat Overview and Summary
This case involved a complaint laid by a police prosecutor, Miller, against Paul Johnson, a licensed hotel owner. Miller alleged that Johnson was the licensee of premises from which certain persons were seen coming during prohibited hours on a Sunday. The dispute arose over the sufficiency of particulars provided by the prosecutor regarding the identity of the persons seen leaving the premises, with Johnson contending he was prejudiced by the lack of specificity. The matter was heard in the Supreme Court of South Australia and subsequently appealed to the High Court of Australia.
The legal issues before the High Court were whether the complaint, as amended and particularised, was defective in substance or form, and whether the magistrate had the power to dismiss the complaint on the grounds that the defendant was prejudiced by the prosecutor's refusal to provide further particulars. Specifically, the court had to consider the interplay between the Licensing Act 1932-1935 (S.A.) and the Justices Act 1921-1936 (S.A.), particularly provisions relating to the sufficiency of complaints, the requirement for particulars, and the power of a court to dismiss a complaint.
A majority of the High Court, comprising Dixon, Evatt, and McTiernan JJ., held that the complaint was rightly dismissed. They reasoned that while the complaint, in its final amended form, alleged that "a certain person" was seen leaving the premises during prohibited hours, the surrounding circumstances, including earlier particulars provided by the prosecutor which suggested multiple individuals were observed, created ambiguity. This ambiguity, coupled with the prosecutor's refusal to specify which individual the complaint referred to, prejudiced the defendant's ability to prepare a defence. The court found that the Justices Act, particularly section 182, empowered the magistrate to dismiss the complaint when the defendant was prejudiced by such defects, even if the complaint technically disclosed an offence. Latham C.J., dissenting, found that the amended complaint and particulars provided were sufficient under the Justices Act and that the magistrate erred in dismissing the complaint.
The High Court, by majority, reversed the decision of the Supreme Court of South Australia and affirmed the magistrate's dismissal of the complaint.