Sec. 6 of the War Precautions Act 1914-1916 provides, by sub-sec. 1, that any person who contravenes, or fails to comply with, any provision of any regulation or order made in pursuance of the Act shall be guilty of an offence against the Act; by sub-sec. 2, that an offence against the Act may be prose- cuted either summarily or upon indictment; and by sub-sec. 3A, that an offence against the Act shall not be prosecuted summarily without the written consent of the Attorney-General or the Minister for Defence, or a person authorized in writing by the Attorney-General or the Minister for Defence, and that an offence against the Act shall not be prosecuted upon indictment except in the name of the Attorney-General.

Held, that the consent required by sub-sec. 3A must be obtained before a prosecution under the section is initiated, that is, before the information is

Decision of the Supreme Court of New South Wales (Ferguson J.): Ex parte Smith, 35 N.S.W.W.N., 54, affirmed.

APPEAL from the Supreme Court of New South Wales.

On 21st December 1917 an information was laid by John Percy McDonnell against William Henry Smith under reg. 44 of the War

24 CLR 410

Precautions (Military Service Referendum) Regulations 1917 (Statu-

tory Rules 1917, No. 290-No. 326), complaining that on 13th

McDONNELL December 1917 he did at Candelo in the State of New South Wales,

at a public meeting then and there being held in relation to the Referendum, wilfully disturb the said meeting. A summons was duly served upon the defendant to appear before a justice or jus- tices on 14th January 1918. He appeared on that date before a Police Magistrate, but the hearing of the summons was adjourned until 11th February 1918, when, on the application of the informant, a further adjournment was granted to 19th February 1918 on the ground that certain documents necessary for the prosecution were not then in the informant's possession. On 19th February 1918 the defendant again appeared before the Magistrate and the matter came on for hearing, and it then appeared that the consent pre- scribed by sec. 6, sub-sec. 3A, of the War Precautions Act 1914-1916 had only been obtained on 14th February 1918. His solicitor moved that the information be dismissed on that ground, but the Magistrate convicted the respondent, and fined him £5 with 6s. costs, in default two months' hard labour, holding that the consent could be obtained at any time before the hearing. On 10th April 1918 the Supreme Court of New South Wales (Ferguson J.) granted a rule absolute directed to the informant and the Magistrate restraining them from further proceeding upon the conviction Ex parte Smith 1.

From that decision the informant now, by special leave, appealed to the High Court.

Knox K.C.…

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.

Continue reading McDonnell v Smith

Details

AGLC: McDonnell v Smith [1918] HCA 26
Case: [1918] HCA 26
Decision Date: 3 May 1918

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, John Percy McDonnell, had laid an information against the respondent, William Henry Smith, alleging a wilful disturbance of a public meeting held in relation to a referendum. The prosecution was brought under regulation 44 of the War Precautions (Military Service Referendum) Regulations 1917, pursuant to the War Precautions Act 1914-1916. A summons was issued, and the matter proceeded before a Police Magistrate.

The central legal issue before the High Court was whether the written consent required by section 6(3A) of the War Precautions Act 1914-1916 for a summary prosecution had been obtained prior to the initiation of proceedings. Section 6(3A) stipulated that an offence against the Act shall not be prosecuted summarily without the written consent of the Attorney-General, the Minister for Defence, or an authorised person. The consent in this instance was obtained after the information was laid and the summons issued, but before the hearing.

The High Court, affirming the decision of Ferguson J. of the Supreme Court of New South Wales, held that the consent required by section 6(3A) must be obtained before the prosecution is initiated. The Court reasoned that the word "prosecuted" in the subsection meant the commencement of proceedings, which occurs when the information is laid. To interpret "prosecuted" as "dealt with" would alter the plain meaning of the legislation. The Court found that the intention of the legislature was to prevent the harassment of individuals by frivolous prosecutions, and this safeguard required the consent to be in place at the outset of the legal process.

Consequently, the High Court dismissed the appeal with costs, upholding the Supreme Court's order restraining further proceedings upon the conviction.

Orders