ON APPEAL FROM THE SUPREME COURT OF Assault and false imprisonment-Arrest-General - - power to apprehend person found
committing offence-Special power to apprehend for offence in respect of inclosed land-Construction of consolidating Statuie-Criminal - Law Amendment Act 1883 (N.S.W.) (46 Vict. No. 17), sec. 429 - Crimes Act 1900 (N. S. W.) (No. 40 of Sept. 1, 2, 3,
Sec. 352 (1) of the Crimes Act 1900 (N.S.W.) provides that: Any con- stable or other person may without warraut apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punish able, whether by indictment, or on summary conviction, under any Act."
Held, that sec. 352 (1) (a) of the Crimes Act 1900 applies to offences created by, and punishable under, other Statutes as well as to offences created by, and punishable under, the Crimes Act itself.
Sec. 4 of the Inclosed Lands Protection Act 1901 (N.S W.) provides that " Any person who, without lawful excuse, enters into the inclosed lands of any other person, without the consent of the owner or occupier thereof, or the person in charge of the same, shall be liable to a penalty not exceeding £5," &.
Sec. 6 (1) of the same Act provides that: " Any person found committing any offence against this Act, and who refuses, when required to do so, to give his name and place of abode, may be apprehended by the owner, occu- pier, or person in charge of the inclosed lands upon or in relation to which the offence was committed, and delivered to the custody of the nearest con- stable to be taken before a Justice to be dealt with according to law."
Hold, that sec. 352 (1) (a) of the Crimes Act 1900 applies to offences created by, and punishable under, the Inclosed Lands Protection Act 1901, notwith- standing the provisions of sec. 6 of the latter Act, the two sections being consistent with, and mutually assisting, one another.
The construction of a consolidating Statute depends on its language as applied to the subject matter considered as at the date of its enactment.
Decision of the Supreme Court of New South Wales: Plowman v. May. bury, 13 S.R. (N.S.W.), 34, reversed.
APPEAL from the Supreme Court of New South Wales.
An action was brought in the Supreme Court by George Plow- man against Cecil Edmunds Bridgewater Maybury, the Sheriff of New South Wales, and his bailiff, James Leslie King, in which the plaintiff alleged that the defendants assaulted the plaintiff and gave him into custody to a constable and compelled him to remain in the said custody for a long time whilst being conveyed by the said constable to a police station and there caused…
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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Maybury v Plowman [1913] HCA 43
Case
[1913] HCA 43
Decision Date
CaseChat Overview and Summary
The case of *Maybury v Plowman* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from an action for assault and false imprisonment brought by the respondent, Plowman, against the appellants, Maybury (the Sheriff) and King (his bailiff). Plowman alleged he was unlawfully arrested and detained after re-entering land from which he had previously been removed under a writ of possession. The appellants sought to justify the arrest and detention by asserting that Plowman had committed an offence under the *Inclosed Lands Protection Act 1901* (NSW) by trespassing on inclosed lands after being removed, and that the arrest was lawful under section 352(1)(a) of the *Crimes Act 1900* (NSW).
The central legal issue before the High Court was whether section 352(1)(a) of the *Crimes Act 1900* (NSW), which provides a general power for a constable or other person to apprehend without warrant any person found committing an offence punishable under any Act, applied to offences created by the *Inclosed Lands Protection Act 1901* (NSW). Specifically, the court had to determine if this general power of arrest was overridden by the more specific provisions for apprehension contained in section 6 of the *Inclosed Lands Protection Act 1901*, which permits the owner, occupier, or person in charge of the land to apprehend an offender.
The High Court held that section 352(1)(a) of the *Crimes Act 1900* was applicable to offences created by the *Inclosed Lands Protection Act 1901*. The Court reasoned that the language of section 352(1)(a) was broad enough to encompass offences under any Act, and that there was no inherent inconsistency or repugnancy between the general power of arrest in the *Crimes Act* and the specific power of arrest in the *Inclosed Lands Protection Act*. Instead, the Court found that the two provisions were consistent and mutually assisting, with the general power in the *Crimes Act* providing an additional means of apprehending offenders under the *Inclosed Lands Protection Act*. The Court also noted that the construction of a consolidating statute depends on its language as applied to the subject matter at the date of its enactment, and that the inversion of the order of statutes due to consolidation did not alter the legal effect of their provisions in this instance.
Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and overruled the demurrer. The Court found that the second plea, which sought to justify the arrest under section 352(1)(a) of the *Crimes Act 1900*, disclosed a valid defence. The parties were to bear their own costs of the appeal and the demurrer.