Messina v Bridie

[1966] HCA 20

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Windeyer JJ.

MESSINA v. BRIDIE

(1966) 114 CLR 354

6 April 1966

Criminal Law

Criminal Law—Assault—Proceedings before justices—Hearing upon merits—Dismissal of complaint—Certificate of dismissal—When granted—Contents—Whether justice accepting a plea of autrefois acquit or convict may properly consider offence not proved—Crimes Act, 1900 (N.S.W.), s. 498*.

Decisions

April 6.
The following written judgments were delivered: -
BARWICK C.J. The respondent was charged and tried at Quarter Sessions at Sydney with assault of the appellant. He was acquitted. An information by the appellant in respect of the same assault which had not been proceeded with pending the outcome of the trial at Quarter Sessions was brought on for hearing before a stipendiary magistrate after the respondent had been acquitted. (at p355)

2. Upon being asked to state his defences, the respondent raised in documentary form the defence of autrefois acquit and orally the defence of not guilty. The police prosecutor who appeared on the hearing conceded that the respondent had been acquitted of the same offence, and accordingly the magistrate, as the papers show, held that the respondent's plea of autrefois acquit was sustained and dismissed the information. (at p356)

3. Subsequently, upon the request of the respondent for a certificate of dismissal which was assumed in the Supreme Court to have been a request for a certificate under s. 498 of the Crimes Act, 1900 (N.S.W.), a certificate of dismissal was signed by the magistrate and delivered to the respondent. That certificate, which has been produced to this Court, is on a printed form and follows precisely the terms of Form S in the Second Schedule to the Justices Act, 1902-1958 (N.S.W.), that form being the form prescribed in respect of a certificate of dismissal issued pursuant to s. 86 of the Justices Act. (at p356)

4. The appellant has commenced an action at law in the Supreme Court of New South Wales against the respondent for damages for assault, being the same assault as that in respect of which the respondent had been tried and acquitted and in respect of which the magistrate dismissed the information. The respondent has pleaded in the action the existence of a certificate of dismissal under s. 498 of the Crimes Act. That section is in the following terms: "If, on the hearing of any case of assault under sections four hundred and ninety-three to four hundred and ninety-six both inclusive 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." (at p356)

5. Section 499 (1) of the Crimes Act provides that "Any person who obtains a certificate of dismissal under section four hundred and ninety-eight, or, who having been convicted, 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." (at p356)

6. After this plea had been filed, the appellant applied for and obtained from a Judge of the Supreme Court an order nisi for a writ of certiorari to quash the certificate of dismissal signed by the magistrate. This application was made within six months of the dismissal of the information but there is no evidence that any prior notice of that application was given to the magistrate. The order nisi was made absolute by the primary judge in the following terms:

"that the said order nisi be and the same is hereby made absolute and that a writ of certiorari do issue to remove into this Court the records of the Court of Petty Sessions holden at Paddington on the ninth day of July 1963 relating to the issue of a certificate of dismissal to the respondent, Keith Gordon Hope Bridie, under s. 498 of the Crimes Act, 1900 and that the said certificate of dismissal be and the same is hereby quashed." (at p357)

7. On appeal from this order, the Full Court set it aside and dismissed the application for a writ of certiorari. The appellant now pursuant to special leave appeals to this Court and seeks to have the order for a writ of certiorari made by the primary judge reinstated. (at p357)

8. Special leave to appeal was granted as the questions dealt with by the Full Court were matters of general importance. In addition, it then appeared that their resolution would be necessary in connexion with the action commenced by the appellant for damages for assault. (at p357)

9. However, upon the appeal being called for hearing, the respondent's counsel appeared to take up the position that the respondent could not support the plea the respondent had made in the common law action because in fact a certificate under s. 498 of the Crimes Act, had not been granted. He suggested that the assumption made throughout the proceedings in the Supreme Court that the certificate of dismissal which the respondent had obtained was a certificate given under that section was erroneous. On that view the matter so far as the parties are concerned is merely a question as to who should pay the costs of the proceedings for the writ of certiorari. It may well be that had the attitudes of the parties which have now emerged been known to the Court when the opposed application for special leave was heard, such leave would have been refused. (at p357)

10. But, after consideration, I have come to the conclusion that the matter, having regard to its general significance, will not be appropriately dealt with now by rescinding the order for special leave and making an appropriate order as to costs. (at p357)

11. It will be evident that a number of important questions could arise in the matter. (at p357)

12. However, in my opinion, the appeal should be dismissed on the simple but fundamental ground that a certificate given in pursuance of s. 498 must follow upon the dismissal of the information or complaint upon one of the three grounds stated in the section, and must show on its face that the information or complaint was dismissed for one of those reasons. (at p357)

13. In my opinion, s. 498 in speaking of "such dismissal" requires these conclusions. Skuse v. Davis (1839) 10 A &E 635 (113 ER 241) - a decision to which we are told the Full Court was not referred - is sufficient authority to support them. The certificate produced in this case, even if it be regarded as in fact issued under s. 498, does not disclose any of the specified grounds of dismissal. As for that reason the certificate is not a certificate which by virtue of s. 499 affects the rights of the parties to the action, there exists, in my opinion, no reason to grant a writ of certiorari in respect of it. Consequently, the order of the Full Court discharging the order of the primary judge was for that reason right, and should be affirmed. (at p358)

14. Being of this clear opinion, there is no occasion for me to express my opinion on the question whether if a justice should issue a certificate under s. 498 expressing a ground of dismissal which was not in accord with his actual determination in dismissing the information or complaint, certiorari would be available as a means of quashing the certificate. Nor do I need express any final opinion upon the propriety of the views of the Full Court that there was in this instance a hearing of the information or complaint "upon the merits" or that the justice who had accepted a plea of autrefois acquit or convict could properly dismiss the information on the ground that he deemed the offence of which the information before him complained not to have been proved. Suffice it to say that in taking the course which I propose, I would not wish to be taken to adopt any such views. The essential consequence of a successful plea or defence of autrefois acquit or convict in preventing any further examination of the facts relating to the offence the subject of that plea or defence must have a serious impact upon the decision of the question whether a justice who has accepted such a plea or defence could properly consider the offence not to be proved. An affirmative answer to that question may well be thought to be inconsistent with the effect of the successful plea of autrefois acquit or convict. (at p358)

15. However, as I have said, I would dismiss the appeal upon the one ground I have stated and the appeal should be dismissed with costs. (at p358)

MCTIERNAN J. I agree that the appeal should be dismissed on the ground upon which the Chief Justice dismisses it. But, for my part, I desire to say that I feel persuaded by the reasons of Sugerman J. that there was a hearing of the case "upon the merits", and that although the justice upon such hearing acquitted the defendant on his defence of autrefois acquit, he was nevertheless entitled to "deem" that the offence alleged in the information had not been proved before him: indeed, that was the fact. (at p359)

TAYLOR J. At the outset of this appeal we were informed by counsel for the respondent that the certificate concerning which there has been much argument on two occasions in the Supreme Court is a certificate given pursuant to s. 86 of the Justices Act, 1902-1958 and not pursuant to s. 498 of the Crimes Act, 1900. This, indeed, appears to be the case. The former section provides that "If the Justice or Justices dismiss an information or complaint he or they may, on being required to do so, and if they think fit, draw up an order of dismissal and give the defendant a certificate thereof". Such certificate is, upon production and without further proof, a bar to any subsequent information or complaint for the same matter against the same person. Its consequences are, therefore, not the same as those which follow upon the granting of a certificate pursuant to s. 498 of the Crimes Act. The form prescribed for a certificate under s. 86 is Form S - "Certificate of Dismissal" - in the Second Schedule to the Act, and the certificate which was given appears on a printed form following precisely Form S under the heading "Justices Act - Certificate of Dismissal". Moreover, there is no evidence that the respondent made a specific application for a certificate under s. 498 of the Crimes Act. (at p359)

2. When these matters appeared the proper course would, I think, have been to revoke the order granting special leave to appeal since none of the questions that have been argued upon this appeal really arose. However, we have heard full argument on the assumption that the magistrate purported to act under s. 498 and I am content to say that the appeal should be dismissed for the reasons given by the Chief Justice. I regard Skuse v. Davis (1839) 10 A &E 635 (113 ER 241) as longstanding authority for the twofold proposition that a certificate may only be issued under s. 498 when the dismissal is upon one of the grounds stated in the section and that the certificate, itself, should state the ground of dismissal. I add that I do not regard the dismissal of an information following the successful assertion of what has been called the defence of autrefois acquit as involving the conclusion, after a hearing on the merits, that the magistrate has "deemed the offence not to be proved" any more than I would regard the dismissal of an information following the successful assertion of the defence of autrefois convict or a dismissal pursuant to s. 556A of the Crimes Act as involving that conclusion. (at p359)

MENZIES J. I agree with the Chief Justice. (at p360)

WINDEYER J. I agree in the judgment of the Chief Justice. (at p360)

Orders

Appeal dismissed with costs.