Knezevic, L. v Markovic, D
[1985] FCA 106
•27 MARCH 1985
Re: LJUBOMIR KNEZEVIC
And: DJORDJE MARKOVIC
No. ACT G7 of 1984
Assault
5 FCR 219
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn(1), Lockhart(2) and Neaves(2) JJ.
CATCHWORDS
Assault - civil proceedings - Prior criminal proceedings - Barring of civil proceedings - Indictable offence - Summary trial by consent - Sentence of imprisonment - Term of imprisonment served - Crimes Act, 1900 (NSW) in its application to the Australian Capital Territory, ss.59, 476, 477, 481, 499 and 556.
Crimes Act, 1900 (NSW), ss.59, 476, 477, 481, 499 and 556.
Assault - Civil proceedings - Prior criminal proceedings - Whether civil proceedings barred - Crimes Act 1900 (NSW), ss 22, 59, 476, 477, 481, 499, 556.
HEADNOTE
Held: (1) Where an accused had previously been convicted of assault and imprisoned, s 556 of the Crimes Act 1900 (NSW) as it applied to the Australian Capital Territory (for the terms of which section see the judgment of Lockhart and Neaves JJ) bars civil as well as criminal proceedings for the same cause.
White v. Ellis (1983) 72 FLR 302, overruled.
(2) Observations upon the meaning of "proceeding", "prosecutions", "offence", "cause", "liable".
(3) Whether "for the same cause" meant "for the same assault", not decided.
HEARING
Canberra, 1984, July 12; 1985, March 27. #DATE 27:3:1985
APPEAL
Appeal from judgment and orders of the Supreme Court of the Australian Capital Territory (Gallop J).
S. L. Walmsley, for the appellant.
T. Higgins, for the respondent.
Cur adv vult
Solicitors for the appellant: Sutherland Swift & Co.
Solicitors for the respondent: Higgins.
GFV
ORDER
The appeal be allowed.
The order of the Supreme Court of the Australian Capital Territory made on 2 March 1984 be set aside.
In lieu thereof it be ordered that the motion to strike out paragraph 3 of the defence delivered on 21 November 1983 be dismissed with costs including the costs of the proceedings before the Registrar.
The respondent pay the appellant's costs of this appeal.
Appeal allowed. Order of the Supreme Court of the Australian Capital Territory set aside. Order that motion to strike out par 3 of the defence be dismissed with costs.
JUDGE1
I had come to the conclusion that this appeal should be dismissed, and I had prepared reasons for judgment supporting that conclusion. Having afterwards had the great advantage of an opportunity to read the reasons for judgment prepared by my brethern, I am now convinced, by their searching examination of the legislative history, that s.556 of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory, must be construed as barring bothe civil and criminal proceedings; that White v. Ellis (1983) 47 ACTR 7, must in this respect be overruled; and that the appeal must be allowed.
This result is capable of causing grave injustice. Section 556 was originally intended, as my brethren demonstrate, to prevent multiplicity of actions and to put a person aggrieved by an act which is both a crime and a tort to his election to institute either civil or criminal proceedings. In modern times, when criminal prosecutions are almost invariably initiated by the police, when the law of tort is so much more highly developed, and awards of damages are so much larger, the section is capable of providing a totally unmeritorious defence to an action for damages.
I agree with the order proposed by my brethren.
JUDGE2
This appeal from the Supreme Court of the Australian Capital Territory concerns the construction of s.556 of the Crimes Act, 1900 of the State of New South Wales in its application to the Australian Capital Territory ("the Crimes Act"). The question arises in the following circumstances.
On 27 July 1982 Ljubomir Knezevic, the appellant, wrongfully assaulted Djordje Markovic, the respondent, at the Kingston Bus Depot in the Australian Capital Territory by striking him on the head with a broom handle.
The appellant was charged with assault occasioning actual bodily harm under s.59 of the Crimes Act. An offence against s.59 is an indictable offence: but the appellant consented to the case being disposed of summarily pursuant to s.477 of the Crimes Act. On 16 December 1982 he was convicted and sentenced to a term of imprisonment by the Australian Capital Territory Court of Petty Sessions. He served that sentence.
In June 1983 the respondent brought proceedings against the appellant in the Supreme Court of the Australian Capital Territory claiming damages for injuries sustained by the respondent from the assault. On 21 November 1983 the appellant delivered a defence to the respondent's statement of claim admitting the assault, but not the alleged injuries and loss, and raising the issue whether the respondent's cause of action was barred by s.556 of the Crimes Act. At the date on which the defence was delivered that section was in the following terms -
"556. Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for non-payment thereof, or the imprisonment adjudged in the first instance, or is discharged from his conviction by the Magistrate under section five hundred and fifty-two of this Act, he shall not be liable to any other proceeding for the same cause."
The respondent filed a notice of motion which was heard by the Supreme Court (Gallop J.) seeking an order that the paragraph of the defence which pleaded s.556 in bar be struck out on the ground that it disclosed no reasonable answer to the claim and was frivolous or vexatious in that it disclosed no defence and was bad in law. The respondent sought interlocutory judgment against the appellant together with costs.
The Supreme Court ordered that the paragraph of the defence which raised s.556 be struck out on the ground that it disclosed no reasonable answer to the respondent's claim, that interlocutory judgment be entered against the appellant and that he pay the respondent's costs of and incidental to the application including certain proceedings before the Registrar. The appellant has appealed from the whole of the judgment of the Supreme Court.
A proper understanding of the questions raised by this appeal requires an examination of the legislative setting in which s.556 appears and the history of relevant sections of the Crimes Act.
The Crimes Act, 1900 (NSW) in its application to the Australian Capital Territory comprises the Crimes Act, 1900 of the State of New South Wales (Act No. 40 of 1900), the amendments made to that statute by the Parliament of New South Wales prior to 1 January 1911 and a number of amending Ordinances of the Australian Capital Territory promulgated since that date.
As appears from its long title, the Crimes Act, 1900 (N.S.W.) was an Act to consolidate the statutes relating to the criminal law. The diverse sources from which its provisions were drawn are illustrated by reference to the First Schedule which lists the statutory provisions that were repealed by the consolidating statute. The memorandum of the Commissioner for the Consolidation of the Statute Law as published in The Statutes of New South Wales, Cockshott and Lamb, vol.4 (1900), pp.312-5 certifies that the Act, except to the limited extent referred to therein, consolidated and in no way altered, added to, or amended the enactments so consolidated. The memorandum makes no reference to s.556. Nor is there any reference to ss.481 and 499 the relevance of which sections will hereafter appear.
The scheme of the Act is apparent from a perusal of the headings of the various parts and chapters into which the Act was divided, though it may be noted, in passing, that in its application to the Australian Capital Territory all headings other than Part headings were omitted from the Act by the Crimes (Amendment) Ordinance 1983 (No.27 of 1983) the date of commencement of which was 27 September 1983. Part I was preliminary and interpretative. Each of the Parts II to VIII inclusive dealt with a class of criminal offences, such offences being punishable upon indictment. Part IX dealt with abettors and accessories, Parts X and XI with procedural and evidentiary matters and Parts XII and XIII with sentences and proceedings after sentence. Part XIV provided that certain of the indictable offences set out in the earlier parts of the Act and certain other offences created by the Act might be heard and determined summarily before Justices.
Within Part XIV, Chapter 1, comprising ss.476-481, provided for certain offences, being those referred to in s.477, to be punishable summarily but only with the consent of the accused. Section 481 provided -
"481. Every conviction in any such case shall have the same effect as a conviction upon an indictment for the offence would have had, and no person, convicted as aforesaid, or who obtains a certificate of dismissal under the last preceding section, shall be afterwards liable to prosecution for the same cause."
Chapter 2 (ss.482-492) provided for offences punishable summarily in certain cases by whipping. Chapter 3 (ss.493-547) created a number of offences punishable summarily before Justices, their general scope being apparent from the sub-headings preceding each group of sections, namely -
(A) Assaults (ss.493-500)
(B) Larceny and similar offences (ss.501-529)
(C) Malicious injuries to property (ss.530-543)
(D) Coinage offences (ss.544-545)
(E) Abettors (s.546)
(F) Apprehended violence or injury (s.547)
Within the group of sections dealing with assaults were ss.498 and 499 which provided -
"498. If, on the hearing of any such case of assault upon the merits, the Justices deem the offence not to be proved, or find the assault to have been justified, or so trifling as not to call for punishment, and accordingly dismiss the complaint, they shall forthwith make out a certificate of such dismissal, and deliver the same to the defendant.
499. Any person who obtains such certificate, or, who, having been convicted, pays the amount adjudged to be paid, or suffers the imprisonment awarded, shall be released from all proceedings, civil or criminal, for the same cause."
Chapter 4 (ss.548-556) dealt with procedure before Justices and related matters. The text of s.556 was identical with the text that has already been set out except that the word "Justices" appeared in place of the word "Magistrate".
Before referring to certain of the provisions by which the Crimes Act, 1900 has been amended in its application to the State of New South Wales and in its application to the Australian Capital Territory, it is, we think, instructive to refer to a number of statutes relating to the criminal law previously enacted in the United Kingdom and in the State of New South Wales.
The Act 9 Geo. IV No.1 (NSW) provided that as from 1 April 1828 certain statutes of the Imperial Parliament "be and the same are hereby directed to be adopted in New South Wales and its Dependencies and applied in the administration of justice in like manner as other parts of the Criminal Laws of England are adopted and applied in the said Colony." The Imperial statutes so adopted and applied included the statutes 7 and 8 Geo. IV c.27, c.28, c.29 and c.30.
The only operative effect of the statute 7 and 8 Geo. IV c.27 was to repeal as from 1 July 1827 a large number of statutes previously in force in England. The statutes 7 and 8 Geo. IV c.29 and c.30 were statutes consolidating and amending the laws in England relative to larceny and other offences connected therewith (c.29) and the laws in England relative to malicious injuries to property (c.30). The preamble to each statute referred to the repeal effected by 7 and 8 Geo. IV c.27 and recited that it was desirable that the provisions contained in the repealed laws be amended and consolidated and take effect at the same time as the repealing Act. Both statutes, in relation to the subject matters with which they respectively dealt, created offences punishable on indictment and provided for other offences for which an offender might be convicted before a Justice of the Peace. In the case of a number of the offences in relation to which a conviction might be recorded by a Justice, the statutes provided for the forfeiture and payment, over and above the value of the goods, mechandise or articles involved or the amount of the injury done, of such sum of money not exceeding a specified amount as to the Justice might seem meet. Provision was also made for the application of all forfeitures and penalties upon summary conviction. Moneys forfeited for the value of any property stolen or taken or for the amount of any injury done were to be paid to the party aggrieved except where that party had been examined in proof of the offence or was unknown (see 7 and 8 Geo. IV c.29, s.66 and 7 and 8 Geo. IV c.30, s.32).
Section 70 of 7 and 8 Geo. IV c.29 and s.36 of 7 and 8 Geo. IV c.30 were in identical terms. They provided -
"And be it enacted That in case any person convicted of any offence punishable upon summary conviction by virtue of this Act shall have paid the sum adjudged to be paid together with costs under such conviction or shall have received a remission thereof from the Crown or shall have suffered the imprisonment awarded for non-payment thereof or the imprisonment adjudged in the first instance or shall have been discharged from his conviction in the manner aforesaid in every such case he shall be released from all further or other proceedings for the same cause."
The reference to the convicted person having been discharged from his conviction "in the manner aforesaid" was a reference to a provision making it lawful for the Justice convicting the person, if he should think fit, to discharge the offender "upon his making such satisfaction to the party aggrieved for damages and costs or either of them as shall be ascertained by the Justice" (7 and 8 Geo. IV c.29, s.68 and 7 and 8 Geo. IV c.30, s.34).
The long title of the statute 7 and 8 Geo. IV c.28 was "An Act for further improving the Administration of Justice in Criminal Cases in England". It is unnecessary to refer further to it.
In 1828, the year following the enactment of the statutes to which reference has been made, the statute 9 Geo. IV c.31 was enacted to consolidate and amend the statutes in England relative to offences against the person. That statute became operative in New South Wales by virtue of s.24 of the Act 9 Geo. IV c.83. After providing for a variety of offences against the person punishable on indictment, ss.27, 28 and 29 provided -
"27. And whereas it is expedient that a summary power of punishing persons for common assaults and batteries should be provided under the limitations hereinafter mentioned. Be it therefore enacted That where any person shall unlawfully assault or beat any other person it shall be lawful for two Justices of the Peace upon complaint of the party aggrieved to hear and determine such offence and the offender upon conviction thereof before them shall forfeit and pay such fine as shall appear to them to be meet not exceeding together with costs (if ordered) the sum of five pounds which fine shall be paid to some one of the overseers of the poor or to some other officer of the parish township or place in which the offence shall have been committed to be by such overseer or officer paid over to the use of the general rate of the county riding or division in which such parish township or place shall be situate whether the same shall or shall not contribute to such general rate and the evidence of any inhabitant of the county riding or division shall be admitted in proof of the offence notwithstanding such application of the fine incurred thereby and if such fine as shall be awarded by the said Justices together with the costs (if ordered) shall not be paid either immediately after the conviction or within such period as the said Justices shall at the time of the conviction appoint it shall be lawful for them to commit the offender to the common gaol or house of correction there to be imprisoned for any term not exceeding two calendar months unless such fine and costs be sooner paid but if the Justices upon the hearing of any such case of assault or battery shall deem the offence not to be proved or shall find the assault or battery to have been justified or so trifling as not to merit any punishment and shall accordingly dismiss the complaint they shall forthwith make out a certificate under their hands stating the fact of such dismissal and shall deliver such certificate to the party against whom the complaint was preferred.
28. And be it enacted That if any person against whom any such complaint shall have been preferred for any common assault or battery shall have obtained such certificate as aforesaid or having been convicted shall have paid the whole amount adjudged to be paid under such conviction or shall have suffered the imprisonment awarded for non-payment thereof in every such case he shall be released from all further or other proceedings civil or criminal for the same cause.
29. Provided always and be it enacted That in case the Justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony or shall be of opinion that the same is from any other circumstances a fit subject for a prosecution by indictment they shall abstain from any adjudication thereupon and shall deal with the case in all respects in the same manner as they would have done before the passing of this Act. Provided also that nothing herein contained shall authorize any Justices of the Peace to hear and determine any case of assault or battery in which any question shall arise as to the title to any lands tenements or hereditaments or any interest therein or accruing therefrom or as to any bankruptcy or insolvency or any execution under the process of any Court of Justice."
It must, we think, be accepted that s.70 of 7 and 8 Geo. IV c.29 and s.36 of 7 and 8 Geo. IV c.30 operated, in the situations to which they were respectively applicable, to bar not only criminal but also civil proceedings "for the same cause". The language used was of the widest import and was 1`early capable of encompassing civil proceedings. The use of the verb "release" was, as Sheppard J. said in White v. Ellis (1983) 47 ACTR 7 at p 13, apt language for a provision taking away civil rights. A similar comment may be made in relation to the use of the word "cause". We are unable to accept that the provisions should be given a more limited application than the width of their language will support simply by reason of the circumstance that the statutes were dealing with the criminal law. The conclusion that the provisions should not be construed as barring only further criminal proceedings is strengthened when the provisions of s.28 of 9 Geo. IV c.31 are taken into account. That section makes it plain that, in relation to the subject matter dealt with in that statute, the bar was to extend to both civil and criminal proceedings. But for the inclusion of the words "civil or criminal" the section uses, so far as material, identical language to that used in the earlier provisions. It seems to us that the inclusion of those words is more likely to have been due to a desire on the part of the legislature to remove any doubt as to the extent of the bar than to reflect an intention on the part of the legislature to make a significantly different provision in relation to offences against the person than it had so recently made in relation to larceny and related offences in 7 and 8 Geo. IV c.29 and in relation to malicious injuries to property in 7 and 8 Geo. IV c.30. The provisions no doubt reflected the prevailing conditions in England when there was no established police force and it was left to the individual aggrieved to set the criminal law in motion. There are, for example, in the statute 7 and 8 Geo. IV c.29 provisions which expressly refer to the need to encourage the prosecution of offenders (see ss.57, 63 and 64). The evident purpose of s.70 of 7 and 8 Geo. IV c.29, s.36 of 7 and 8 Geo. IV c.30 and s.28 of 9 Geo. IV c.31 was to put the person aggrieved to his election to institute either civil or criminal proceedings.
Although not directly relevant, it is also instructive to refer to the series of statutes passed by the Imperial Parliament in 1861 to consolidate and amend the criminal law. The statutes of Geo. IV to which reference has been made were repealed (see 24 and 25 Vict. c.95) and a number of statutes were passed each dealing with a separate subject matter. It is sufficient to refer to 24 and 25 Vict. c.96 dealing with larceny, 24 and 25 Vict. c.97 dealing with malicious injuries to property and 24 and 25 Vict. c.100 dealing with offences against the person.
Section 109 of the statute dealing with larcency was, so far as presently material, in identical terms to s.70 of 7 and 8 Geo. IV c.29 while s.67 of the statute dealing with malicious injuries to property was, so far as material, in identical terms to s.36 of 7 and 8 Geo. IV c.30. Sections 42, 44 and 45 of 24 and 25 Vict. c.100, the statute dealing with offences against the person, were based upon ss.27, 28 and 29 of 9 Geo. IV, c.31 though with some amendment. Section 42 enabled summary proceedings to be taken not only by the party aggrieved as was the case under 9 Geo. IV c.31, s.27 but by any one on behalf of that party. The bar from further proceedings, civil or criminal, which was re-enacted in 24 and 25 Vict. c.100, s.45 was expressed to apply where the summary proceedings had been brought by or on behalf of the party aggrieved. Further, in the case of dismissal of the complaint a certificate which would bar further proceedings could only be given under s.42 where there had been a hearing "upon the merits".
The sections referred to are discussed in Criminal Law Acts, Greaves, 2nd ed. (1862) at pp.70-75, 193 and 258. Commenting upon s.45 of 24 and 25 Vict. c.100 the learned author says at pp.73-4:
"Before the 9 Geo. 4, c.31, a party assaulted might either bring an action or prefer an indictment for such assault, or might do both the one and the other. Now the 9 Geo. 4, c.31, s.27, gave the party assaulted another mode of proceeding, and as far as I am aware it had never been held before that time that a conviction or acquittal on a summary proceeding could be pleaded as a bar to an indictment even for a misdemeanor; it was but reasonable, therefore, that sec.28 should be introduced to prevent the prosecutor from either bringing an action or preferring an indictment for the same assault, with respect to which he had elected to proceed before the justices. But it is to be remembered that by the common law auterfois acquit or convict of a misdemeanor could never be pleaded to an indictment for any felony (see my note 1 Russ. C. & M. 838, and the authorities there collected); and, consequently, if sec.28 had been so framed as to make a proceeding under sec.27 a bar to an indictment for felony, this inconsistency would have been created, that such a proceeding would have been a bar to an indictment for felony, whilst an acquittal or conviction for an assault upon an indictment would not have been so; and this affords a strong inference that the words 'for the same cause,' were used to prevent the provision from extending to an indictment for felony, especially when it is borne in mind that an indictment for felony and one for misdemeanor were always considered as proceedings for a different and not for the same cause, as the authorities above referred to plainly show."
We need not pause to consider whether these comments were correct in relation to the meaning of the phrase "for the same cause". What is important for present purposes is that the learned author, despite his involvement over many years with the preparation of the provisions which eventually found their way into the statutes consolidating and amending the criminal law enacted in 1861 and the detailed comments which he made on the various provisions, made not the slightest suggestion that the language of s.109 of 24 and 25 Vict. c.96 and s.67 of 24 and 25 Vict. c.97 did not bar both civil and criminal proceedings.
In the introduction to the work cited Greaves drew attention to the difficulties attendant upon the consolidation of statutes. At p.xv the learned author said:
"Another difficulty arising from such a course is, that a clause in one statute may, either by itself, or construed with the rest of that statute, bear one meaning, but when transferred into a Consolidation Act, and separated from its former associated clauses, and placed amongst other clauses taken from other Acts, it may be open to an entirely different construction: and in this point one of the greatest difficulties in consolidation consists; for it is hardly possible, even with the greatest care, to foresee the effect of placing in the same Act, especially if it be a long Act, clauses taken from different Acts. And in such cases this dilemma arises. If the effect is foreseen, an alteration of some kind must be made, and then the question immediately arises what that alteration ought to be, and in this the greatest lawyers may differ, and if any alteration in the law be made, it at once ceases to be mere consolidation. If the effect is not foreseen, then the law will be thrown into confusion."
It was no doubt because of the difficulties that were thought to attend the task of consolidating into a single statute all the statutory provisions relating to the criminal law that the course was adopted in the United Kingdom both in relation to the statutes passed in 1827-8 and those enacted in 1861 to pass separate statutes dealing with a particular subject matter of the criminal law. Such an approach, however, was eschewed in New South Wales when the Criminal Law Amendment Act of 1883 (46 Vict. No.17) was enacted.
That Act repealed 7 and 8 Geo. IV c.28, c.29 and c.30, 9 Geo. IV c.31 (with certain exceptions immaterial for present purposes) and 9 Geo. IV No.1. Part I (ss.9-69) related to offences against the person and in ss.63-69 inclusive it provided for offences under Part I punishable by Justices. The offences so punishable were assaults respecting the sale of grain, assaults obstructing workmen, common assaults and certain aggravated assaults. The Justices might in certain circumstances abstain from adjudicating on the matter and deal with the case by committal (s.66). Sections 67 and 68 were in the following terms -
"67. If on the hearing of any such case of assault upon the merits the Justices deem the offence not to be proved or find the assault to have been justified or so trifling as not to call for punishment and accordingly dismiss the complaint they shall forthwith make out a certificate of such dismissal and deliver the same to the defendant.
68. Any person who obtains such certificate or who having been convicted pays the amount adjudged to be paid or suffers the imprisonment awarded shall be released from all proceedings civil or criminal for the same cause."
Part II (ss.70-176) dealt with larceny and similar offences, ss.150-176 being preceded by the sub-heading "Offences under Part II Punishable by Justices". Section 150 provided for certain indictable offences to be determined summarily and, in relation to that limited class of offences, s.153 provided as follows -
"153. Every such conviction shall have the same effect as a conviction upon an indictment for the offence would have had and no person convicted as aforesaid or who obtains a certificate of dismissal under the last section shall be afterwards liable to prosecution for the same cause."
This section is clearly the precursor of s.21 of the Criminal Law and Evidence Amendment Act of 1891 (N.S.W.) (55 Vict. No.5) and s.481 of the Crimes Act, 1900 (N.S.W.) though in both those statutes the provision had a wider operation by reason of the extension of the indictable offences that might be adjudicated upon summarily. Such offences could, however, only be dealt with summarily with the consent of the accused and the primary purpose of the provision was to equate a summary conviction obtained in such circumstances to a conviction upon indictment. Its evident purpose was, therefore, quite different from that underlying such provisions as ss.499 and 556 of the Crimes Act.
Returning to the Criminal Law Amendment Act of 1883, Part III (ss.177-229) dealt with malicious injuries to property. Sections 222-229 were preceded by the sub-heading "Offences under Part III Punishable by Justices". No provisions were included in Part III similar to ss.67 and 68 appearing in Part I the text of which has already been set out.
Parts IV, V and VI dealt respectively with forgery, coinage offences and perjury, Part VII with abettors and accessories, Part VIII with procedure, evidence and verdict in relation to trials on indictment and Part IX with proceedings after verdict. Part X was headed "Summary Proceedings before Justices". It made general provision for the procedures before Justices where by the Act a person was made liable to imprisonment or to pay a sum of money on conviction before Justices and for such matters as the apprehension of offenders, the issue of search warrants, the jurisdiction of Justices and appeals. Section 439 provided -
"439. Where any person summarily convicted under this Act pays the sum or sums adjudged to be paid together with costs or receives a remission thereof from the Crown or suffers the imprisonment provided for non-payment thereof or the imprisonment adjudged in the first instance or is discharged from his conviction by the Justices as last aforesaid he shall not be liable to any other proceeding for the same cause."
The reference to a person being discharged from his conviction "as last aforesaid" was a reference to s.438 providing for the discharge of a first offender under the age of 16 years who might be discharged upon making amends and entering into a recognizance.
It may be noted that s.439 substitutes the words "shall not be liable to" any other proceeding for the same cause for the words "shall be released from" such proceedings as appeared in s.70 of 7 and 8 Geo. IV c.29 and s.36 of 7 and 8 Geo. IV c.30, language which was repeated in s.556 of the Crimes Act, 1900 (N.S.W.). But, notwithstanding this change of language, we think that the effect of s.439 was, in the cases to which it related, intended to bar not only criminal but also civil proceedings "for the same cause". To construe it otherwise would attribute to the legislature an intention, which is not manifest by any express reference, to change the pre-existing law to a very substantial degree.
We have already referred to the relevant provisions as enacted in the Crimes Act, 1900 (N.S.W.) and it is convenient now to notice some of the amendments which have since been made to those provisions.
Sections 499 and 556 of the Crimes Act, 1900 were amended in New South Wales by the Crimes (Amendment) Act, 1955. Section 499 was amended so that the offender was to be released from all criminal proceedings for the same cause and from all civil proceedings for the same cause at the suit of the person laying the information in respect of the proceedings for assault. Sub-section (2) was added to the section reading as follows:
"(2) Any person against whom civil proceedings have been taken in respect of any act done by him which is an offence of which he might have been convicted under sections four hundred and ninety-three to four hundred and ninety-six both inclusive shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken."
Section 556 was amended by omitting the reference to a discharge from conviction under s.552 of the Act and by providing that the offender was not to be liable to any other criminal proceedings for the same cause or to any civil proceedings for the same cause at the suit of the person laying the information upon which be was summarily convicted under the Act. Sub-section (2) was inserted reading as follows:
"(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him which is an offence of which he might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken."
It is clear from a consideration of the second reading speech of the Attorney-General for New South Wales upon the Crimes (Amendment) Bill that the mischief that was aimed at in making the above amendments was the mischief arising from the circumstance that the institution by the police of criminal proceedings in cases falling within s.499 or s.556 had the effect of barring the victim's civil remedy to recover any loss or injury suffered by reason of the criminal conduct. The amendment made to s.556 is only explicable if s.556 in the form in which it stood before the amendment operated in such circumstances to bar not only criminal but also civil proceedings.
The Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory as in force at the material times for the purpose of these proceedings provides in ss.476-481 for certain indictable offences to be punishable summarily (see Crimes Ordinance 1974, s.11). Section 476 confers upon courts of summary jurisdiction power to hear and determine certain charges in a summary manner without the consent of the accused to their being so heard and determined. Section 477 confers upon such a court power to hear and determine certain other charges in a summary manner with the consent of the accused. Many offences are within the scope of s.477 including offences relating to money or property other than a vehicle, but only where the amount of the money or the value of the property involved does not, in the opinion of the court, exceed $2000. The section does not apply to offences punishable by imprisonment for life or for a term exceeding ten years (s.478).
Section 481 provides -
"481.(1) A conviction upon a charge disposed of summarily in pursuance of section 476 or 477 has the same effect as a conviction upon indictment for the offence would have had and a person who is so convicted is not afterwards liable to prosecution for the same cause.
(2) The dismissal by the Court of Petty Sessions of an information heard and determined by the Court in pursuance of section 476 or 477 has the same effect as an acquittal of the person charged in a trial on indictment."
Sections 493-500 relate to assaults of various descriptions punishable summarily. The assaults comprise common assaults (s.493); assaults on justices, constables, sheriff's officers and others in the execution of their duties or on children under 12 years of age or on females and assaults in company (s.494); assaults relating to the distribution of grain (s.495) and assaults obstructing workmen (s.496). Upon conviction the defendant may be imprisoned or fined. The Justices hearing the case may dismiss the complaint whereupon they must make out a certificate of such dismissal and deliver it to the defendant (s.498). Section 499, which was amended by the Crimes Ordinance 1963, s.25 in respects similar to the amendments made in New South Wales by the Crimes (Amendment) Act, 1955) provides -
"499.-(1.) A person who obtains a certificate of dismissal under section four hundred and ninety-eight, or, who, having been convicted under sections four hundred and ninety-three to four hundred and ninety-six (both inclusive), pays the amount adjudged to be paid, or suffers the imprisonment awarded, shall be released -
(a) from all criminal proceedings for the same cause; and
(b) from all civil proceedings for the same cause at the suit of the person laying the information in respect of the proceedings for assault.
(2.) A person against whom civil proceedings have been taken in respect of an act done by him which is an offence of which he might have been convicted under sections four hundred and ninety-three to four hundred and ninety-six (both inclusive) shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken."
Sections 501-529 create a wide variety of offences which may be characterised as larceny and similar offences. Sections 530-543 deal with malicious injuries to property, ss.544 and 545 with coinage offences, s.546 with abettors and s.547 with apprehended violence or injury.
Provision is made for alternative methods of procedures before Justices (s.548), the issue of summonses and warrants for the purpose of compelling the appearance of persons before Justices (s.549), averments (ss.550-1), the discharge of juvenile first offenders (s.552), the reduction of sentences (s.553), sentences to hard labour (s.554) and the assessment and payment of penalties (s.555). Then follows s.556 with which this case is primarily concerned. The text of that section has already been set out and it is to be noted that the amendments made in New South Wales to the corresponding section by the Crimes (Amendment) Act, 1955 had not been adopted in the Australian Capital Territory at any time material to these proceedings. The section has, however, since been amended - see Crimes (Amendment) Ordinance (No.2) 1984 - and now reads as follows -
"556.-(1)Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for non-payment thereof, or the imprisonment adjudged in the first instance, or is discharged from his conviction by the Magistrate under section five hundred and fifty-two of this Act, he shall not be liable -
(a) to any other criminal proceedings for the same cause; or
(b) to any civil proceedings for the same cause at the suit of the person laying the information upon which he was summarily convicted under this Act.
(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him which is an offence of which he might have been convicted summarily without consent under this Act shall not be liable to any criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken."
In our opinion, the placing of ss.481, 499 and 556 of the Crimes Act in their historical setting leads to the conclusion that s.556 bars civil as well as criminal proceedings for the same cause. We ignore, of course, the amendments made to that section in 1984 in the Australian Capital Territory. Our earlier reference to it was simply for the purpose of completing the historical development of the section. Like its predecessors, s.556 releases from civil as well as criminal proceedings since it is contrary to the expressed intention of the legislature that, having expressly provided for sums to be paid by way of compensation for injury or loss sustained by reason of the commission of the offence (sub-s.554(3) and s.552), an independent civil action for damages should remain.
The fact that s.499 in terms provides a release from criminal and civil proceedings for the same cause in the case of assaults to which it is directed does not, in our opinion, assist the argument that s.556 is directed only to release from criminal proceedings. The history of the relevant sections to which we have referred demonstrates that the argument is untenable. Section 499 and its predecessors have expressly applied the release to proceedings both civil and criminal. Section 556 and its predecessors, although not in terms making that express provision, have been couched in language that encompasses both criminal and civil proceedings. The words "shall not be liable to any other proceedings for the same cause" are no more apt to describe criminal than civil proceedings. The word "liable" is itself apposite to both kinds of proceedings. Indeed s.481, which is plainly limited to barring criminal proceedings, uses the words "is not afterwards liable to prosecution for the same cause". Section 556 on the other hand uses the word "proceeding" not "prosecution", the latter being appropriate only to criminal proceedings. Nor is the word "offence" used in s.556 or, for that matter, in s.481. The word "offence" is appropriate only to criminal proceedings; "cause" is equally applicable to both criminal and civil proceedings: see Greaves at p.74.
The purpose of ss.556 and 499 was to prevent multiplicity of actions and to put the person aggrieved by the assault to his election to institute either civil or criminal proceedings. Obvious injustices were caused to persons aggrieved where criminal proceedings for assault were brought by the police and the persons were unable to recover compensation for the losses or injuries sustained by them. It was those injustices which led to the amendments to s.499 and s.556 in New South Wales with the passing of the Criminal Law (Amendment) Act, 1955 of New South Wales and which were later adopted in the Australian Capital Territory, although not until 1984 in the case of the amendments to s.556. That is the source of the problem in the present case.
Our view is reinforced by the fact that, throughout the history of the relevant barring provisions of the Crimes Act (for example, ss.481, 499 and 556), they have appeared together with other provisions which expressly provide for sums to be paid to the person aggrieved by way of compensation for the injury or loss sustained by him. It would be contrary to the expressed intention of the legislature that an independent civil claim for damages should remain having expressly provided for sums to be forfeited in respect of the injury done.
We therefore regard as untenable the view that it is unlikely that there would be found in Crimes Acts provisions intended to bar civil proceedings unless they expressly so provide. The history of ss.481, 499 and 556 of the Crimes Act and the language in which they are cast is destructive of this view.
As the Crimes Act is a consolidating Act it must be examined in the light of its history. So regarded, it is impermissable to attribute to the legislature an intention to draw a distinction between the barring of civil as well as criminal proceedings (s.499) and the barring only of criminal proceedings (s.556).
The learned trial Judge followed the judgment of Sheppard J. in White v. Ellis (supra) where his Honour held that s.556 did not afford a defence to a civil claim for damages brought by the plaintiff in the Supreme Court of the Australian Capital Territory for the defendant's assault upon him. Upon the information of a police officer the defendant was charged with the indictable offence of assault. With his consent he was tried summarily by the Court of Petty Sessions, the offence was found proved and the magistrate convicted the defendant; but without passing sentence, discharged him upon his entering into a recognizance, on condition that he be of good behaviour for twelve months and that he pay a penalty of $100. Sheppard J. held that civil proceedings for damages were not "other proceedings for the same cause" within s.556 and that the section did not afford a defence to the action. His Honour reached this conclusion essentially for the reasons that:-
1. It is unlikely that s.556 was intended by the legislature to bar civil proceedings both because the effect would be startling and would lead to manifest injustice, and, as the section is part of the Crimes Act, it would be unlikely that the legislature intended to bar civil proceedings unless expressly saying so. His Honour expressed this another way by saying that it would not readily be concluded that the legislature intended to bar common law rights in the absence of clear words indicating that this was its intention;
2. The language of s.556, when contrasted with the language of s.499, indicated that the legislature had clearly manifested an intention to interfere with common law rights, in s.499, but not in s.556;
3. Section 499 was an unnecessary provision if s.556 barred civil as well as criminal proceedings; and
4. The penalty of $100 was not "a sum adjudged to be paid" within the meaning of s.556. This last mentioned point does not arise in the present case.We respectfully disagree with his Honour's conclusions for the reasons which we have given. (We say nothing about his Honour's construction of the words "sum adjudged to be paid" because it is unnecessary to do so in the present case.) It is only after carefully considering s.556 and its history that we have reluctantly come to the conclusion that it bars the proceedings for damages in the Supreme Court by the respondent. This seems to us, however, to be an inevitable conclusion when the section is read in the light of the other sections to which we have referred and their history.
It was not argued before us that the appellant was not a "person, summarily convicted under this Act" within the meaning of the opening words of s.556; nor was it argued that the words in the section "for the same cause" meant other than "for the same assault".
In our opinion, the appeal should be allowed. The orders made on 2 March 1984 by the Supreme Court of the Australian Capital Territory that paragraph 3 of the defence dated 21 November 1983 be struck out, that interlocutory judgment be entered against the appellant, and that the appellant pay the respondent's costs of and incidental to the motion to strike out paragraph 3 of the defence should be set aside. In substitution for those orders of the Supreme Court it should be ordered that the respondent's motion to strike out be dismissed with costs including the costs of the proceedings before the Registrar and that the respondent pay the appellant's costs of this appeal.
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