R v Johnstone

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.