KIDMAN AND OTHERS. Constitutional Law-Legislative power of Parliament-Ex post facto -High Court
Original jurisdiction-Criminal law-Conspiracy to defraud the Common- wealth-Common law of the Commonwealth--The Constitution (63 &64 Vict. c. 12), secs. 51 (xxxix.), 75, 76-Crimes Act 1914 (No. 12 of 1914), sec. 86-Crimes SYDNEY, Act 1915 (No. 6 of 1915), secs. 2, 3-Judiciary Act 1903-1915 (No. 6 of 1903- Aug. 30, 31; No. 4 of 1915), secs. 30, 71A-High Court Procedure Act 1903-1915 (No. 7 of Sept. 1, 2, 3. 1903-No. 5 of 1915), sec. 15A. Practice-High Court-Reserving questions for Full Court-Criminal trial before
Justice of High Court-Judiciary Act 1903-1915 (No. 6 of 1903-No. 4 of 1915), sec. 18.
The Crimes Act 1915, which, by sec. 2, adds conspiracies to defraud the Commonwealth to the conspiracies which by sec. 86 of the Crimes Act 1914 are declared to be indictable offences, and, by sec. 3, provides that the Act is to be deemed to have been in force from the date of the commencement of the Crimes Act 1914, is a valid exercise of the power of the Parliament of the
So held by the whole Court. By Griffith C.J., on the ground that there is a common law of the Common- wealth applicable to the execution of its powers under which it is an offence to conspire to defraud the Commonwealth that the Commonwealth Parlia- ment has no power to enact a criminal law which can only operate as an ex post facto law, but has power under sec. 51 (XXXIX.) of the Constitution to embody the common law of the Commonwealth applicable to the execution of its powers in the form of a Statute; and that such a Statute, so far as it refers to the Courts in which offences against the law so declared are to be prosecuted, is a law of procedure, and therefore to be construed as retro- spective in its operation.
HIGH COURT By Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ., on the ground that within the limits as to subject matter prescribed by the Constitution the power of Parliament to make laws is plenary, and includes the power within those limits to make ex post facto laws; that the power conferred by sec. 51 (XXXIX.) of the Constitution to make laws with respect to matters incidental to the execution of any of the powers therein mentioned is as plenary as any other of the powers to make laws, and that the Crimes Act 1915 is a law with respect to matters incidental to the execution of one or more of those
By Isaacs J., further, on the ground that the common law of Australia recognizes the peace of the King in relation to the Commonwealth, just as it recognizes the peace of the King in relation to each separate State; and therefore any obstruction to the Crown in the performance of its Common- wealth functions is a justiciable matter of complaint…
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 Kidman
Sign in free to access the full text
Details
AGLC
R v Kidman [1915] HCA 58
Case
[1915] HCA 58
Decision Date
CaseChat Overview and Summary
The case of *R v Kidman* involved a criminal trial before the High Court of Australia, where the accused, Arthur Kidman and others, were charged with conspiracy to defraud the Commonwealth. The dispute centred on the validity of the *Crimes Act 1915* (Cth), which retrospectively created the offence of conspiring to defraud the Commonwealth and purported to apply from a date prior to its enactment. The accused sought to quash the indictment on several grounds, including the competence of the Commonwealth Parliament to enact such retrospective legislation and the High Court's jurisdiction to hear such matters.
The High Court was required to determine several key legal issues. Firstly, whether the Commonwealth Parliament possessed the power to enact retrospective criminal laws, specifically an *ex post facto* law, under the Constitution. Secondly, it had to consider whether the Parliament could confer original jurisdiction upon the High Court to hear offences against the common law of the Commonwealth. Finally, the Court needed to ascertain if the *Crimes Act 1915* validly conferred jurisdiction on the High Court for the charged offence and whether the indictment constituted a matter to which the Commonwealth was a party for the purposes of the Constitution.
The Court, by majority, held that the *Crimes Act 1915* was a valid exercise of parliamentary power. Griffith C.J. reasoned that while the Parliament could not enact a purely *ex post facto* law, it had the power under section 51(xxxix) of the Constitution to codify the common law of the Commonwealth applicable to the execution of its powers. Such a statute, particularly concerning procedural aspects, could be construed as retrospective. Isaacs, Higgins, Gavan Duffy, Powers, and Rich JJ. held that the Parliament's legislative power was plenary within constitutional limits, including the power to make *ex post facto* laws. They further reasoned that section 51(xxxix) granted broad power to legislate on incidental matters, which encompassed the *Crimes Act 1915*. Isaacs J. also noted that the common law of Australia recognised the "peace of the King" in relation to the Commonwealth, making obstructions to its functions a justiciable matter.
The motions to quash the indictment were refused. The Court found that there was a common law of the Commonwealth, and that conspiring to defraud the Commonwealth constituted an offence against this common law. The *Crimes Act 1915* was deemed a valid law, either as a codification of this common law or as a plenary exercise of legislative power, and the High Court possessed the necessary original jurisdiction to hear the matter.