R v Johnstone - [1945] HCA 25

APPLICANT-APPELLANT JOHNSTONE

RESPONDENT. Criminal Law-Habitual criminal-Declaration-Offences within schedule-Simple

larceny-Stealing from the person-Summary conviction-Habitual Criminals Act 1905 (N.S.W.) (No. 15 of 1905), S. 3 (2), (3), Schedule-Crimes Act 1900- 1929 (N.S.W.) (No. 40 of 1900-No. 2 of 1929), 88. 476, 477, 501.

Convictions in respect of simple larceny or stealing from the person, where the offender has been proceeded against summarily under S. 501 of the Crimes Act 1900-1929 (N.S.W.), are convictions of offences comprised in class (V) of the schedule to the Habitual Criminals Act 1905 (N.S.W.) for the purposes of

So held by Latham C.J., Rich, Dixon and Williams JJ. (Starke J. dissenting). Opinion of Dixon and McTiernan JJ. in Commissioner for Railways (N.S.W.) V. Pitman, (1936) 56 C.L.R. 144, that S. 501 of the Crimes Act refers to existing offences and does not define new ones, approved and applied.

Decision of the Court of Criminal Appeal of New South Wales: R. v. John- stone. (1945) 45 S.R. (N.S.W.) 367: 62 W.N. 207, reversed.

APPLICATION for special leave to appeal and APPEAL from the Court of Criminal Appeal of New South Wales.

Hilton Lawrence Johnstone was convicted before a stipendiary magistrate of the offence of stealing from the person, an offence punishable summarily without his consent under S. 501 of the Crimes Act 1900-1929 (N.S.W.). During the preceding nine years, Johnstone had been convicted under S. 501 twice of stealing from the person and five times of larceny and he had many other convictions. Steal- ing from the person and larceny are indictable offences under SS. 94 and 117 of the Crimes Act 1900-1929.

In addition to imposing a sentence of twelve months' imprisonment with hard labour upon Johnstone, the magistrate directed that an

70 CLR 562

application be made by the clerk of the peace to a court of quarter sessions to have Johnstone declared an habitual criminal.

The declaration was made under sub-ss. 2 and 3 of S. 3 of the Habitual Criminals Act 1905 (N.S.W.) by Holt, Chairman of Quarter Sessions, and Johnstone appealed to the Court of Criminal Appeal of New South Wales.

The Chairman of Quarter Sessions reported that, apart from the question as to whether Johnstone's convictions warranted the declaring of Johnstone an habitual criminal, the important question arose as to whether convictions in respect of offences for simple larceny or stealing from the person, where the offender had been proceeded against under S. 501 of the Crimes Act 1900-1929, were summary convictions of offences comprised in class (V) of the schedule to the Habitual Criminals Act 1905.

The Court of Criminal Appeal held that S. 501 of the Crimes Act created new offences, and that therefore a conviction for stealing from the person or for larceny under that section was not a con- viction of an offence comprised in any of the classes in the schedule to the Habitual Criminals Act, S. 501 not being one of the sections specified in that schedule R. v. Johnstone 1.

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 R v Johnstone

Details

AGLC: R v Johnstone [1945] HCA 25
Case: [1945] HCA 25
Decision Date: 15 October 1945

CaseChat Overview and Summary

The applicant, Johnstone, appealed to the High Court of Australia after being declared an habitual criminal by a court of quarter sessions in New South Wales. The declaration followed his conviction for stealing from the person, an offence punishable summarily under section 501 of the Crimes Act 1900-1929 (N.S.W.). Johnstone had numerous prior convictions for larceny and stealing from the person, some of which were also under section 501. The central dispute concerned whether these summary convictions under section 501 qualified as convictions for offences comprised within Class (V) of the schedule to the Habitual Criminals Act 1905 (N.S.W.), which listed indictable offences such as larceny and stealing from the person under specific sections of the Crimes Act.

The legal issue before the High Court was whether convictions for simple larceny or stealing from the person, when prosecuted summarily under section 501 of the Crimes Act, constituted summary convictions of offences that were comprised within Class (V) of the schedule to the Habitual Criminals Act. The Court of Criminal Appeal of New South Wales had held that section 501 created new offences, distinct from those listed in the schedule, and therefore convictions under it did not count towards the prior convictions required for an habitual criminal declaration.

A majority of the High Court, comprising Latham C.J., Rich, Dixon, and Williams JJ., allowed the appeal, overturning the decision of the Court of Criminal Appeal. The majority reasoned that section 501 of the Crimes Act did not create new offences but rather provided a specific summary procedure for prosecuting existing indictable offences, such as simple larceny and stealing from the person, with a limitation on the value of the property involved and a reduced maximum penalty. They applied the principle that the nature of the offence, rather than the procedural method of conviction or the specific penalty imposed, was determinative for the purposes of the Habitual Criminals Act. The Court approved and applied the opinion of Dixon and McTiernan JJ. in *Commissioner for Railways (N.S.W.) v. Pitman* that section 501 referred to existing offences and did not define new ones.

Consequently, the High Court held that summary convictions under section 501 were indeed convictions of offences comprised within Class (V) of the schedule to the Habitual Criminals Act. The appeal was allowed, the order of the Court of Criminal Appeal was set aside, and the original declaration of Johnstone as an habitual criminal was restored. Starke J. dissented, finding that section 501 created distinct offences not covered by the schedule.

Orders