R v Loewenthal; ex parte Blacklock

[1974] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Mason and Jacobs JJ.

THE QUEEN v. LOEWENTHAL; Ex parte BLACKLOCK

(1974) 131 CLR 338

25 September 1974

Constitutional Law (Cth)

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Offence under Commonwealth law of destroying or damaging Commonwealth property—Offence under State law of destroying or damaging property—Indictment—Charge of wilful and unlawful destruction of specified Commonwealth property—Whether State law inapplicable—Whether indictment void—The Constitution (63 &64 Vict. c. 12), s. 109—Commonwealth Places (Application of Laws) Act 1970 (Cth) , s. 4* Crimes Act 1914-1966 (Cth), s. 29**—Judiciary Act 1903-1969 (Cth) ss. 39 (2), 69—Criminal Code (Q.) s. 469***. * Section 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) provides in part as follows: "(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. (2) This section does not (a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places . . ." ** Section 29 of the Crimes Act 1914-1966 (Cth) provides: "Any person who wilfully and unlawfully destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence . . ." *** Section 469 of the Criminal Code (Q.) provides: "Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence . . ."

Decisions

Sept. 25.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared for delivery by my brothers Menzies and Mason. I agree with them that s. 29 of the Crimes Act (Cth) was intended to be an exhaustive provision as to damage being done to property belonging to the Commonwealth or to a public authority of the Commonwealth. Consequently, by virtue of s. 109 of the Constitution, s. 469 of the Criminal Code of Queensland was at all relevant times inoperative in relation to damage done to property of the Australian National Airlines Commission. Section 469 therefore was not within the operation of s. 4 (1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth), its provisions being inoperative in their application to Eagle Farm Aerodrome otherwise than by reason of s. 52 of the Constitution. I agree with my brothers' reasons for this conclusion. (See s. 4 (2).) (at p340)

2. I also agree that the learned District Court judge did not lack jurisdiction to proceed upon the indictment which was before him. In my opinion, the indictment was not limited to a charge against the respondent for a breach of s. 469 of the Criminal Code: but in any case the District Court judge clearly had jurisdiction to amend the indictment. (at p340)

3. I would discharge the orders nisi. (at p340)

McTIERNAN J. This cause consists of orders nisi for a writ of prohibition and a writ of certiorari respectively. Each order is directed to a judge of District Courts of the State of Queensland. He is the trial judge in criminal proceedings in a District Court of Queensland in which the party who is seeking the writs is the accused person. The stage reached in the proceedings, when the writs were applied for, was that the trial judge had overruled a demurrer to the indictment. The ground of the demurrer is that the indictment does not disclose a cognizable offence. (at p340)

2. It is said in the orders nisi that the trial purports to be a trial on indictment under the provisions of s. 469 of the Criminal Code of Queenland. The charge preferred against the accused person follows the words of the opening provision of that section. The particulars of the property to which the charge relates are: "A plate glass door the property of Australian National Airlines Commission trading as Trans-Australia Airlines." The accused person might have been prosecuted for the act alleged in the indictment under s. 29 of the Crimes Act 1914-1966 (Cth). There is no proof that such is the case. (at p340)

3. The indictment was presented in Court against the accused person by a Crown Law Officer of the State of Queensland. The prosecution, so far as one can see, is a prosecution in the name of the Queen in right of the State of Queensland. There would be no problem as regards s. 109 of the Constitution, if the prosecution was based upon s. 29 of the Crimes Act 1914-1966 (Cth). (at p340)

4. The several District Courts of Queensland are invested with federal jurisdiction by s. 39(2) of the Judiciary Act 1903-1969. Clearly such jurisdiction extends to a federal element imported into a demurrer against an indictment for an offence included in the Criminal Code. It is not necessary to inquire into the decision of the trial judge to decide whether his decision on the demurrer is right. If the accused were convicted of the offence charged the conviction would no doubt be appealable. The learned trial judge having overruled the demurrer, a writ of prohibition designed to restrain him from proceeding with the trial of Reg. v. Blacklock does not lie, nor a writ of certiorari to quash the proceedings. In my judgment the orders nisi should be discharged. (at p341)

MENZIES J. Kenneth George Blacklock was indicted in the District Court of Queensland as follows:
"That on the 21st day of April 1973 at Brisbane in the State of Queensland You wilfully and unlawfully destroyed one plate glass door the property of Australian National Airlines Commission trading as Trans-Australian Airlines."
It appears that the glass door was in a building that was Commonwealth property. To this the accused said:
"I demur to this indictment on the ground that it does not disclose any offence cognizable to this Court. I plead not guilty and this Court has no jurisdiction to try me for this offence." (at p341)

2. Section 469 of the Criminal Code (Q.) is as follows:
"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment with hard labour for two years, or, if the offence is committed by night, to imprisonment with hard labour for three years." (at p341)

3. Section 29 of the Crimes Act (Cth) is as follows:

"29. Any person who wilfully and unlawfully destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence.

Penalty: Imprisonment for two years." (at p341)

4. The point of the accused's objection was that he was being charged under the section of the Code which was, so it was said, inconsistent with the section of the Crimes Act, and was therefore invalid: Constitution, s. 109. (at p341)

5. The learned judge held the demurrer bad in law and that the District Court had jurisdiction to try the accused upon the indictment. (at p341)

6. The accused thereupon sought prohibition and certiorari from the Supreme Court of Queensland. These applications were, upon the application of the Attorney-General of the State of Queensland, transferred to this Court on the ground that they involved the interpretation of the Constitution: Judiciary Act, s. 40. This is the hearing of these applications, and the Attorney-General of Queensland was, with the leave of the Court, represented by counsel. (at p342)

7. Before proceeding further it is convenient to refer to the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the corresponding Queensland statute Commonwealth Places (Administration of Laws) Act 1970 to 1972. The effect of these is to make applicable, according to their tenor, provisions of the laws of Queensland to Commonwealth places, subject to the proviso that such laws do not apply any provisions of the law of the State which would have been invalid or inoperative otherwise than by reason of s. 52 of the Constitution in relation to Commonwealth places. (at p342)

8. The whole basis of the application is that the accused was indicted for an offence against s. 469 of the Criminal Code. The indictment does not so state, notwithstanding that s. 469 had been noted thereon beside the allegation of the offence. It seems likely, however, that it was intended to proceed as for an offence under that section although the Court did have jurisdiction to try the accused for an offence under s. 29 of the Crimes Act. It certainly was not made to appear that the indictment was preferred in a manner provided by s. 69 of the Judiciary Act (Cth). (at p342)

9. Moreover, it is apparent that the learned trial judge decided that the Court had jurisdiction to try the accused for an offence under s. 469 of the Code and would have proceeded with a trial for such an offence. (at p342)

10. In these circumstances it seems to me proper to consider whether or not the Court could proceed with the trial for an offence under that section, notwithstanding that an adverse answer to this question would do no more than result in the institution of proceedings under s. 29 of the Crimes Act to which there could be no objection. To succeed here the accused must, at least, demonstrate that s. 29 of the Crimes Act applies to the conduct which would be alleged as an offence under s. 469 of the Code. Indeed, the proceedings appear to me as no more than a lawyer's jaunt at the public expense. (at p342)

11. However this may be, I have come to the conclusion that s. 29 of the Crimes Act should be regarded as exhaustive so that, when it is alleged that it is property belonging to the Commonwealth or any public authority under the Commonwealth that has been wilfully and unlawfully destroyed or damaged, s. 29 of the Crimes Act governs the matter to the exclusion of any law of a State. (at p342)

12. The Commonwealth law, operating as it does throughout Australia, provides a common rule to or from which the legislation of a State can neither add nor subtract. When the Parliament of the Commonwealth has made what it regards as the appropriate law for the protection of its property from criminal depredation, that is the law under which those whose acts contravene it should be punished, rather than under a State law of general application. (at p343)

13. Because s. 469 is inoperative by reason of s. 109 of the Constitution with regard to the places to which s. 29 of the Crimes Act relates, it follows that s. 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) does not operate to make that section apply in relation to the place where it is alleged that the offence was committed. (at p343)

14. The result of my conclusion is that a prosecution of the applicant under s. 469 of the Criminal Code would fail. This result, however, would not be the consequence of any lack of jurisdiction in the Court; it would be because the prosecution was under the wrong Act. Whether or not the present proceedings can be continued with any prospect of success seems to me to depend upon s. 69 of the Judiciary Act. If the existing indictment is in accordance with that section it can. (at p343)

15. In the result I consider the applications for prohibition and certiorari were misconceived and the orders nisi should be discharged. (at p343)

MASON J. Kenneth George Blacklock was arraigned before the District Court of Queensland on an indictment which charged him with the following offence:
"That on the 21st day of April 1973 at Brisbane in the State of Queensland You wilfully and unlawfully destroyed one plate glass door the property of Australian National Airlines Commission trading as Trans-Australian Airlines." (at p343)

2. Having been arraigned, the accused said:
"I demur to this indictment on the ground that it does not disclose any offence cognizable to this Court. I plead not guilty and this Court has no jurisdiction to try me for this offence." (at p343)

3. The demurrer was then argued, counsel for the accused submitting that there was an inconsistency between the provisions of s. 469 of the Criminal Code (Q.), upon which he conceived the indictment to be based, to the extent which they were capable of applying to property belonging to the Commonwealth or to any public authority under the Commonwealth, and the provisions of s. 29 of the Crimes Act 1914 (Cth), as amended, and that by virtue of s. 109 of the Commonwealth Constitution the provisions of s. 469 were to that extent inoperative. Despite the absence of any allegation to that effect in the indictment and of any evidence as to the place where the offence was committed the Crown Prosecutor and counsel for the accused assumed in argument that the offence was alleged to have taken place at Eagle Farm Airport on Commonwealth property. However, neither counsel made any reference to the decisions of this Court in Worthing v. Rowell &Muston Pty. Ltd. (1970) 123 CLR 89 , and Reg. v. Phillips (1970) 125 CLR 93 , or to the provisions of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (hereinafter referred to as the Commonwealth Places Act) which was introduced to meet the difficulty occasioned by those decisions. The learned District Court judge ruled that there was no inconsistency but adjourned the trial so as to enable the accused to move the Supreme Court for orders nisi for writs of prohibition and certiorari. The orders nisi for prohibition and certiorari returnable before the Full Court were granted on the ground that the District Court had no jurisdiction to try the accused for the offence alleged in the indictment. The orders nisi were then removed into this Court by order under s. 40 of the Judiciary Act 1903, as amended, on the application of the Attorney-General for Queensland. (at p344)

4. The short answer to the case that the District Court lacked jurisdiction to proceed on the indictment is that the language in which it is expressed is equally appropriate to the allegation of an offence in terms of the provisions of s. 469 of the Criminal Code and to an offence against s. 29 of the Crimes Act. If it be assumed that there is an inconsistency between the two provisions with the consequence that s. 469 is pro tanto inoperative, the indictment nevertheless charged an offence which could be supported by s. 29 and which the District Court, invested as it was with federal jurisdiction by ss. 39 and 68 of the Judiciary Act 1903, as amended, had jurisdiction to try. (at p344)

5. Section 469 of the Criminal Code provides:
"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment with hard labour for two years, or, if the offence is committed by night, to imprisonment with hard labour for three years." (at p344)

6. Section 29 of the Crimes Act provides:

"Any person who wilfully and unlawfully destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence. Penalty: imprisonment for two years."

The expression "public authority under the Commonwealth" means any authority or body constituted by or under a law of the Commonwealth or of a Territory (Crimes Act, s. 3). The expression therefore includes the Australian National Airlines Commission. (at p344)

7. The provisions of the two sections differ only in the matter of penalty. There is therefore no reason why the indictment should have been regarded on its face as alleging an offence against State law only and why it should not have been read as alleging an offence against Commonwealth law. (at p345)

8. Although it does not appear in the evidence before us, we were told that there is a note in the margin of the indictment which refers to s. 469 of the Code. It has no materiality; an incorrect marginal note does not invalidate an indictment or influence its construction. In this case the note merely indicates that in the mind of some person associated with the preparation of the indictment s. 469 was thought to be the statutory provision which created the offence. (at p345)

9. In an affidavit by the Acting Crown Solicitor it is said that the offence charged was against s. 469 of the Code, but this again cannot determine the matter. The demurrer was taken to the indictment as framed. Then we were informed, although once more the statement finds no support in the evidence, that the Crown Prosecutor who presented the indictment holds no appointment under s. 69(1) of the Judiciary Act. This is by the way, for the ground of the demurrer taken before the District Court judge was based on the inconsistency point only; it was not then suggested that the indictment, in so far as it could be supported by s. 29 of the Crimes Act, was irregularly presented; nor was the point included in the grounds upon which the order nisi was granted. (at p345)

10. Even if the indictment should be read as alleging an offence in terms of s. 469 only, it was in my view capable of being amended under s. 572 of the Code so as to allege an offence against the Crimes Act. Although the distinction between federal and State jurisdiction has created problems, they were largely foreseen by the authors of the Judiciary Act. Pt X of the Act provided a solution to the difficulties arising from a duality of jurisdiction by applying to criminal cases heard by State courts in federal jurisdiction the laws and procedure applicable in the State (s. 68). The purpose of the section was, so far as possible, to enable State courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system. Accordingly, a State law authorizing an amendment of an indictment should be read as having application to Commonwealth offences and as falling within the operation of s. 68. Under s. 69 a State Crown Prosecutor may be appointed to present an indictment on behalf of the Attorney-General for the Commonwealth. When so appointed he may amend an indictment charging an offence against State law by charging an offence against Commonwealth law. The problems inherent in the duality of jurisdiction are likely to be magnified, not diminished, if the solutions for which the Judiciary Act made provision are disregarded and if, as we are told, the State prosecutor holds no appointment under s. 69. (at p345)

11. How the demurrer came to be argued in the fashion in which it was argued in the District Court, on the footing that the offence charged took place at Eagle Farm Airport on Commonwealth property, is not easy to understand. There was no allegation to that effect in the indictment. A demurrer to an indictment is heard and determined on the basis of what is alleged in the indictment, no more and no less. However, argument in support of the demurrer needed to take account of the possibility that, as the indictment did not identify the place where the occurrence took place, it occurred on Commonwealth property. This circumstance would not affect the conclusion which I have reached as to the issue of jurisdiction for, as will appear, the application of the Commonwealth Places Act does not affect the operation of s. 29 of the Crimes Act. (at p346)

12. Section 4 of the Commonwealth Places Act, so far as relevant, provides:

"4.(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. (2) This section does not -

(a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places." (at p346)

13. If, as we are informed, the offence was committed in a Commonwealth place, s. 4(1) would operate to pick up the provisions of s. 469 and give them an application as Commonwealth law in that place, subject to the operation of s. 4(2)(a). Although the provisions of s. 469 can apply in a Commonwealth place in relation to the property of others, its application to the property of the Commonwealth or a public authority under the Commonwealth gives rise to the same issue of inconsistency already mentioned. (at p346)

14. Had the question arisen directly for decision I should have thought that there was an inconsistency between s. 29 of the Crimes Act and s. 469 of the Code to the extent to which its provisions relate to property belonging to the Commonwealth or to a public authority of the Commonwealth. Although the provisions are substantially identical in describing the conduct which gives rise to the offence, the penalties prescribed differ. A difference in the penalties prescribed for conduct which is prohibited or penalized by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v. Palmer (1926) 38 CLR 441 ; Ex parte McLean (1930) 43 CLR 472 ), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law. It is not to be supposed that the Commonwealth law, when it formulated the relevant rule of conduct in relation to Commonwealth property and that of its public authorities, proceeded on the footing that other and different rules of conduct might be enacted in relation to such property or that the rule of conduct which it formulated might be subjected to a different penalty. To conclude otherwise would be to say that the Commonwealth law contemplated the concurrent application of an inconsistent State law, a result which cannot be sustained. Indeed, there is here a direct conflict (in the matter of penalty) between the Commonwealth and the State law; in such a case it is impossible to see how the existence of inconsistency in the constitutional sense can be avoided by an argument which seeks to attribute to the Commonwealth law an intention not to cover the relevant field. (at p347)

15. The provisions of s. 11 of the Crimes Act which enable a person to be prosecuted and convicted either under a Commonwealth law or a State law where the act or omission is an offence against each law, but so that he is not punished twice for the same offence, do not affect the matter. The section plainly speaks to a situation in which the State law is not inoperative under s. 109, as for example when there is an absence of conflict between the provisions of the two laws and the Commonwealth law is not intended to be exclusive and exhaustive. The same comment may be made to as to s. 30(2) of the Acts interpretation Act 1901, as amended (Cth). It forbids the punishment of a person under Commonwealth law for an offence for which he has already been punished under State law and it therefore throws no light on the construction of s. 29 or on the question whether it was intended to be exclusive and exhaustive. (at p347)

16. My view that there is an inconsistency does not bear on the ground taken that the District Court lacked jurisdiction to hear and determine the charge in the indictment. It would of course result in the acquittal of the accused on a charge that he had contravened s. 469 of the Code and a charge under the Commonwealth Places Act that he had contravened a Commonwealth law in terms of s. 469, but that is another matter. (at p347)

17. In the result I would discharge the orders nisi. (at p347)

JACOBS J. I agree that the applicant can be convicted only of an offence under s. 29 of the Crimes Act 1914 (Cth). I agree with the reasons of Menzies J. and Mason J. in this regard and do not wish to add anything for myself. I agree also that the indictment as framed could be taken to be referring to an offence either under s. 469 of the Criminal Code Act (Q.) or under s. 29. However, as appeared from the argument presented on behalf of the Crown, a prosecution under s. 469 was intended. That being so, unless the proceedings can be regarded as being validly prosecuted by indictment for an offence under s. 29, a writ of prohibition should be granted to restrain further proceedings in the still current trial of the accused on an indictment which as a result of the operation of s. 109 of the Constitution charges no offence known to the law. If the indictment on which the applicant now stands charged is taken to be one charging an offence under s. 29 then it cannot be regarded as validly so presented and the proceedings on this trial are invalid. There is no evidence that the offence is being prosecuted by indictment in the name of the Attorney-General of Australia or of a person appointed by the Governor-General in that behalf by commission in the Queen's name pursuant to s. 69 of the Judiciary Act 1903 (Cth). I say "no evidence" but in fact it has been admitted by the Crown from the Bar table that in fact it is not being so prosecuted, and I think that this is sufficient. This admission was made in support of the submission that the offence charged in the indictment is one under s. 469 and nothing else and the purpose of the Crown in making the admission was to clear the way to a consideration of the correctness of that submission. (at p348)

2. Upon that basis it appears to me that the proceedings on the indictment are wholly invalid. Before the applicant can be prosecuted on a charge under s. 29 there must be an indictment which meets the requirements of s. 69 of the Judiciary Act 1903 (Cth). I do not think that the present indictment can be amended under the provisions of the Queensland Code in order to make this defect good. The present indictment is wholly invalid, and a fresh indictment and a fresh trial on that indictment will be necessary. (at p348)

3. This is a defect in the proceedings which renders the wholly invalid. It is a question which goes directly to jurisdiction in that the District Court of Queensland has either assumed jurisdiction in proceedings on a charge which cannot be sustained by the application of s. 109 of the Constitution or has assumed jurisdiction to try a man for an indictable offence not presented before it in the manner required by s. 69 of the Judiciary Act (Cth). I am therefore of the opinion that the rule nisi for prohibition restraining the Judge of the District Court from proceeding further upon the said trial should be made absolute. I think that the applicant should receive his costs because he has succeeded on the point of substance which was sought to be argued, namely, the inconsistency of s. 469 with s. 29 of the Crimes Act (Cth) and I am of this opinion whether or not he would have obtained his writ if it were not for the further fact that the proceedings if regarded as taken under s. 29 were also wholly invalid. (at p349)

Orders

Orders nisi for writs of prohibition and certiorari discharged.