Menges v The King - [1919] HCA 37

RESPONDENT.

ON APPEAL FROM THE MAGISTRATE'S COURT Criminal Law-Law of Norfolk Island-Prosecution-Information, form of-

Necessity of bath-Indictment-Verdict of jury-Cattle stealing-Fraudulently branding-Appeal to High Court-Norfolk Island Act 1913 (No. 15 of 1913), secs. 4, 11 (I) Administration Law 1913 (Norf. 1.) (No. 2 of 1913), secs. 6, 10, 15 (1), 16-Appeal Ordinance 1919 (Norf. I.) (No. I of 1919), clause 2 (1)- Crimes Act 1900 (N.S.W. (No. 40 of 1900), secs. 4, 126, 130, 131.

Sec. 16 of the Administration Law (Norf. I.) provides that is All crimes and offences shall be prosecuted by information in the name of the senior officer of police."

Held, that a document signed by the senior officer of police and stating that he, being the officer duly appointed to prosecute for His Majesty, charged a named person with a specified offence, was an "information" within the meaning of sec. 16, although it was called an "indictment"; and that it need not be upon oath.

By Barton J.: Clause 2 (1) of the Appeal Ordinance, made under the authority of the Norfolk Island Act 1913, which in the case of any person being 'indicted for an indictable offence " authorizes the Magistrate's Court to reserve ques- tions of law for the consideration of the High Court, applies to a prosecution instituted by an information pursuant to sec. 16 of the Administration Law.

By secs. 130 and 131 of the Crimes Act 1900 (N.S.W.), which are in force in Norfolk Island, it is provided that where on the trial of a person for stealing cattle the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of the offence of (inter alia) fraudulently branding any cattle the property of another person, they may acquit him of the offence charged and find him guilty of the offence of which they are satisfied he is guilty.

26 CLR 370

On a prosecution before the Chief Magistrate of Norfolk Island sitting as the Magistrate's Court, for stealing a heifer the property of a named person, the jury found the accused " not guilty of cattle stealing, but guilty of fraudu- lently branding."

On appeal to the High Court pursuant to sec. 11 (1) of the Norfolk Island Act 1913, which permits appeals to the High Court from all judgments, decrees, orders, and sentences" of the Chief Magistrate acting judicially,

Held, that the jury must be taken to have found the accused guilty of fraudulently branding cattle the property of the named person.

Decision of the Magistrate's Court of Norfolk Island affirmed.

APPEAL from the Magistrate's Court of Norfolk Island.

A prosecution of Henry Walter Harvey Menges in the Magistrate's Court was instituted by a document in the following terms "Sidney Charles Werner Esquire Acting Chief Police Officer being the officer duly appointed to prosecute for His Majesty in this behalf, by virtue of the Act in such case made, being present in the Magis- trate's Court at Kingston in the…

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 Menges v The King

Details

AGLC: Menges v The King [1919] HCA 37
Case: [1919] HCA 37
Decision Date: 30 July 1919

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Magistrate's Court of Norfolk Island. The appellant, Henry Walter Harvey Menges, had been prosecuted for cattle stealing. The prosecution was initiated by a document signed by the Acting Chief Police Officer, which the Magistrate's Court treated as an indictment. The jury found Menges not guilty of cattle stealing but guilty of fraudulently branding. Menges was subsequently sentenced to six months' imprisonment with hard labour.

The High Court was required to determine several legal issues. Firstly, whether the document initiating the prosecution constituted a valid "information" under section 16 of the Administration Law 1913 (Norfolk Island), which stipulated that all crimes and offences must be prosecuted by information in the name of the senior officer of police. Secondly, the Court considered whether this document needed to be sworn. Thirdly, the Court addressed the validity of the jury's verdict, specifically whether it sufficiently established that the fraudulently branded cattle belonged to another person, as required by sections 130 and 131 of the Crimes Act 1900 (New South Wales), which were in force in Norfolk Island. Finally, the Court considered its appellate jurisdiction in relation to the grounds of appeal concerning the verdict and the admission of evidence.

The High Court held that the document, despite being referred to as an "indictment" in the lower court, was a valid "information" within the meaning of section 16 of the Administration Law. The Court reasoned that it was an official charge laid by the appropriate officer and that there was no legal requirement for such an information to be sworn. Furthermore, the Court found that the jury's verdict of "guilty of fraudulently branding" implicitly meant that the cattle were the property of another person, consistent with the primary charge of stealing and the provisions of the Crimes Act. The Court also noted that grounds of appeal relating to the weight of evidence and the admission of evidence were not within its appellate jurisdiction under section 11(1) of the Norfolk Island Act 1913.

Consequently, the High Court dismissed the appeal, affirming the decision of the Magistrate's Court of Norfolk Island.

Orders