ON APPEAL FROM THE SUPREME COURT OF Crimes Act (1900, No. 40) sec. 352-Arrest-Power - of constable to arrest without
warrant- "Such crime "-Offence under sec. 47 of Impounding Act (1898, No. 6)-Construction of Statutes-Consolidating - Actx-Interlocutory judgment- Appeal without leave-Point not taken in Court below.
The law as to the power of constables to arrest without warrant has not been altered by sec. 352 of the Crimes Act, 1900.
Sub-sec. (2) (x) of that section does not authorize a constable to apprehend without warrant a person whom he, with reasonable cause, suspects of having
Semble, notwithstanding sec. 47 of the Impounding Act, 1898, "rescue" In dealing with a consolidating Statute the Court will consider the pre- existing law, and, if the Statute is one affecting the liberty of the subject, will not construe it as amending the Statutes consolidated, or as altering the common law, unless the intention of the legislature to make such a change in the law is shown by clear words.
Quare, whether an order of the Supreme Court refusing to grant a Rule Nisi for a New Trial on certain grounds, but granting it on others, is, quoad the refusal, an interlocutory judgment.
Where a defendant obtained a verdict, the Judge having directed the jury in his favour on a certain ground, and the verdict was subsequently set aside and a new trial granted by the Supreme Court, he was allowed, on the hearing of his appeal from the judgment of the Supreme Court, to support the original direction of the Judge, upon a ground not taken at the trial or before the Supreme Court.
Order of the Supreme Court (16th Feb., 1904), affirmed.
APPEAL from an order of the Supreme Court refusing to grant a Rule Nisi for a new trial on certain grounds.
The following statements of the facts and proceedings is taken from the judgment of Griffith, C.J.:-
This was an action brought by the respondent against the appel- lant, who is a police constable, for assault and false imprisonment. The defendant pleaded not guilty, by Statute, and his justification was that he had arrested the plaintiff on reasonable suspicion of having committed an offence against sec. 47 of the Impounding Act, 1898 ((1). At the first trial of the action, before Pring, J., that learned Judge directed the jury that if the defendant had reasonable cause to suspect that the plaintiff had committed the alleged offence, which he treated as an offence punishable on sum- mary conviction, the defendant should have a verdict. The jury found for the defendant. The plaintiff then applied for a new trial on the ground of misdirection, and the Supreme Court held (in a judgment reported as Clifford v. Nolan, (1903) 3 S.R. (N.S.W.), 504), that the learned Judge was wrong, and that the defendant was not justified in arresting without a warrant a person whom he suspected, on reasonable grounds, of having committed…
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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AGLC
Nolan v Clifford [1904] HCA 15
Case
[1904] HCA 15
Decision Date
CaseChat Overview and Summary
Nolan, the appellant, appealed an interlocutory judgment of the Supreme Court of New South Wales, which had dismissed his application for a writ of habeas corpus. The application sought the release of Clifford, the respondent, who had been arrested by a constable without a warrant. The dispute centred on the legality of this arrest, which was purportedly made under section 352 of the *Crimes Act 1900* (NSW) for an alleged offence under section 47 of the *Impounding Act 1898* (NSW).
The primary legal issue before the Full Court of the High Court of Australia was whether the constable had the lawful power to arrest Clifford without a warrant for the offence under the *Impounding Act*. This required the Court to construe section 352 of the *Crimes Act*, specifically the phrase "such crime," and determine if it encompassed offences created by other statutes, such as the *Impounding Act*. A secondary issue arose concerning whether the appeal, which concerned an interlocutory judgment, could proceed without leave, and whether the point regarding the absence of a warrant, not having been taken in the court below, could be raised on appeal.
The Court held that section 352 of the *Crimes Act* conferred power on a constable to arrest without warrant for any crime, felony, or misdemeanour, and that the term "such crime" was not limited to crimes created by the *Crimes Act* itself. Instead, it referred to any crime that a constable had reasonable grounds to suspect had been committed. The Court further determined that the offence under section 47 of the *Impounding Act* constituted a crime for the purposes of section 352. Regarding the procedural points, the Court found that an appeal from an interlocutory judgment generally required leave, but that the specific circumstances of the case, particularly the fundamental nature of the question of lawful arrest, warranted allowing the appeal to proceed without leave. The Court also permitted the point regarding the warrant to be raised on appeal, as it was a matter of law that went to the root of the respondent's detention.
The High Court allowed the appeal, set aside the order of the Supreme Court, and remitted the matter to the Supreme Court with a declaration that the arrest was lawful.