Russell v Bates

[1927] HCA 56

&

27pCR108

40 C.L.R.] OF AUSTRALIA.

209

[HIGH COURT OF AUSTRALIA.]

RUSSELL ..

A p p e l l a n t ;

I n f o r m a n t ,

BATES AND OTHERS.

R e s p o n d e n t s .

D e f e n d a n t s ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Court of Quarter Sessions {N.S.W.)—Jurisdiction— Prosecution before Stipendiary H . C. o r A.

Magistrate—Different charges against different persons heard together— Mistrial

1927.

— Appeal from convictions to Court of Quarter Sessions— Justices Act 1902

'.-v—'

(N.S.W.) (No. 27 of 1902), secs. 122, 125, 133—

and Betting Act 1912 Nov. 17, 0 8 ;

(N.S. W.) (No. 25 of 1912), sec. 40. D e ^ O .

?!dox C.J.,

A Stipendiary Magistrate of New South Wales heard together different Isaacs, Higgins,

charges against different persons and he convicted them. Powere,^Rich’

and Starke J J .

Held, that, whether the Magistrate had or had not jurisdiction to hear the charges together, an appeal lay from the convictions to a Court of Quarter Sessions under sec. 122 of the Justices Act 1902 (N.S.W.).

Held, also, that on an appeal from such convictions the Court of Quarter Sessions had no jurisdiction without the consent of each of the accused persons to hear the appeals together.

Queers, whether with the consent of all the accused persons the Magistrate had jurisdiction to hear the cases together or the Court of Quarter Sessions had jurisdiction to hear the appeals together.

Decision of the Supreme Court of New South Wales (Full C ourt): Russell V. Bates, (1927) 27 S.R. (N.S.W.) 257, reversed.

A p p e a l from the Supreme Court of New South Wales.

On the hearing before a Court of Quarter Sessions of New South Wales of an appeal by Albert Bates, Nellie IsabeljBates and William

VOL. XL.

210 HIGH COURT

[1927.

H.C. or A. Robert Saunderson from their conviction by a Stipendiary Magistrate

1927. certain offences under the Gaming and Betting Act 1912 (N.S.W.),

R u s s e l lthe Chairman of Quarter Sessions stated the following case for the

V.

B a t e s .opinion of the Court of Criminal Appeal;—

On 16th March 1927 Sergeant Alexander Russell laid a complaint before a Magistrate asking for the issue of a special warrant under the provisions of sec. 40 of the Gaming and Betting Act 1912. Such special warrant was duly issued and under it certain persons were arrested. Upon arrest Albert Bates and Nellie Isabel Bates were entered in the charge sheet as being charged (briefly) with using a house for the purpose of betting, and a third person, William Robert Saunderson, was charged for being without lawful excuse upon the premises in question. Upon the matter coming on for hearing before the Stipendiary Magistrate, the Magistrate heard both cases together, and convicted the two first named of the offence mentioned in the charge sheet, and the last named of the offence in the charge sheet in respect to him. The convicted persons appealed to me in Quarter Sessions. Mr. G. Evatt submitted that the Magistrate had no jurisdiction to hear the cases together, and asked me without more to quash the conviction on that ground. He referred to Crane v. Public Prosecutor (1) and R. v. Dennis; R. V. Parker (2). I t seemed to me that I should not quash the conviction without more, because, even if Mr. Evatt’s objection is good, my duty seems to be to hear the case de novo. The Court of Quarter Sessions is a Court of appeal, but its jurisdiction is not to consider matters as if this is an appeal by way of rehearing as in such cases as Coghlan v. Cumberland (3). The Court of Quarter Sessions has the duty of hearing the case de novo {Sweeney v. Fitzhardinge (4); and note Ex parte Morrissey (5) ). That being so, it seems to me that, even if the Magistrate committed an error of jurisdiction in hearing the cases together, he had jurisdiction to enter upon the case, and that I have a similar jurisdiction, and that my duty, therefore, is to hear the case de novo and not to quash the conviction without more. Mr. Evatt then objected that

I had no jurisdiction to hear the cases together. I decided that I

(1) (1921) 2 A.C. 299. (3) (1898) 1 Ch. 704.

(2) (1924) 1 K.B. 867.

(4) (1906) 4 C.L.R. 716.

(5) (1911) II S.R. (N.S.W.) 550.

211

40 C.L.R.]

OF AUSTRALIA.

H. C. OF A.

Fave such jurisdiction. I t seems to me that the jurisdiction of the

1927.

Court of Quarter Sessions and of any Criminal Court hearing matters

R u s s e l l

upon indictment is based upon the indictment in the case, and in

V.

such cases there might be a very good reason why each indictment

B a t e s .

should be separately dealt with. But seeing that the jurisdiction of the Police Court to hear and determine cases does not arise upon indictment, but arises upon the appearance of a party, plus the fact that the Court has jurisdiction over the offence in question, the cases referred to have no apphcation to trials in the Police Court (see, for example, R. v. Hughes (1), Dixon v. Wells (2) and the case referred to by Lord Coleridge C.J. in the latter decision). Upon the appearance of each of the accused before the Magistrate, coupled with the fact that he had jurisdiction to inquire into the offences alleged, it seemed to me he had full jurisdiction to hear both matters together. The charge is not the basis of his jurisdiction : the basis is the appearance of the persons brought before the Court. Moreover, under sec. 65 of the Justices Act 1902 (N.S.W.), no objection is to be allowed to any variance between an information, complaint, summons or warrant, and the evidence adduced in support of the information or complaint (see Ex parte Kirkpatrick (3) and the cases there cited). It seems to me that under this section the duty of justices is to hear the evidence and convict if any offence disclosed by the evidence. Neither information nor charge is a necessary condition precedent to such hearing—an indictment is, apparently, necessary to the jurisdiction of Courts trying indictable offences. An interesting case on the topic under discussion is R. v. Littlechild ; R. V. Heslop (I) (see also Ex parte Ah Sing and Ah How (5) ). Upon my deciding that I had jurisdiction to hear the cases together, Mr. Evatt asked me to hold my hand and state a case for the Court of Criminal Appeal as to whether my decision was correct. Mr. Browning for the Crown concurred in the request that I should state a case in view of the importance of the point, inasmuch as Magistrates very frequently do hear cases together, particularly cases arising under the Act in question and under the Liquor Act (N.S.W.). Pursuant

(1) (1879) 4 Q.B.D. 614.(3) (1916) 16 S.R. (X.S.W.) 541.

(2) (1890) 25 Q.B.D. 249.

(4) (1871) L.R. 6 Q.B. 293.

(5) (1893) 10 N.S.W.W.N. 61.

212 HIGH COURT

□ 927.

H.C. OF A.to sec. 5b of the Criminal Appeal Act 1912 (N.S.W) as amended

1927. by the Crimes {Amendment) Act 1924 (N.S.W.), sec. 33, I now ask

R u s s e l l

the Court to decide whether my decision is correct in law or not.

V.

B a t e s .The Full Court of the Supreme Court answered the question by

declaring that as the Magistrate had no jurisdiction to hear the cases together the proceedings before such Magistrate were a nulUty, and there was consequently no adjudication from which to appeal to the Court of Quarter Sessions: Russell v. Bates (1).

From that decision the informant now appealed to the High Court. During the hearing it was admitted that there was, before the Magistrate, consent by the three respondents to the charges against them being heard together.

WeigaWK-C., S.-G. for N.S.W. (with him E. W. Street), for the appellant. The respondents having in fact been convicted, the Court of Quarter Sessions had jurisdiction to entertain the appeal {Crane v. Public Prosecutor (2) ; Ex parte Pritchard (3) ). The Court of Quarter Sessions had jurisdiction to hear the three cases together without the consent of the respondents {R. v. Biggins (4); Empire Digest, vol. xxxm., p. 355, par. 647). [Counsel also referred to Wells V. Cheyney (5) ; Criminal Appeal Act 1912, secs. 5a, 12 ̂ Crimes {Amendment) Act 1924, sec. 33.]

Evatt K.C. (with him Clive Evatt), for the respondents. A Magistrate may hear only one information at one time (see Justices Act 1902, secs. 57, 78, 79, 80). The proceedings before the Magistrate were a nullity from their commencement {Hamilton v. Walker (6) ; Ex parte Ah Sing and Ah How (7) ; Macphail v. Jones (8) ). The Court of Quarter Sessions had no jurisdiction to

hear the three cases together.

That Court should have quashed the

convictions as soon as the objection was taken. I t had, however, power to send the cases back to the Magistrate to be reheard {Justices Act 1902, secs. 125, 132).

Weigall K.C., S.-G. for N.S.W., in reply.

Cur. adv. vuU.

(1) (1927) 27 S.R. (N.S.W.) 257.(6) (1871) 36 J.P . 198.

(2) (1921) 2 A.C., a t p. 323.(6) (1892) 2 Q.B. 25.

(3) (1918) 18 S.R. (N.S.W.) 434.(7) (1893) 10 N.S.W.W.N. 61.

(4) (1862) 5 L.T. (N.S.) 605.

(8) (1914) 3 K.B. 239.

40 C.L.R.] OF AUSTRALIA.

213

H. C. OF A.

The following written judgments were delivered :—

1927.

K n o x C.J., I sa a c s , G a v a n D o t f y , P o w e r s , R ic h a n d

S t a r k e

R u s s e l l

J J . The respondents were arrested under a special warrant issued pursuant to the Gaming and Betting Act 1912, sec. 40, and were

w.

B a t e s .

brought before a Stipendiary Magistrate. The respondents Albert

Dec 10.

Bates and Nellie Isabel Bates were charged together with using a house as a common gaming house, and the respondent Saunderson was charged separately for that he was found in such house without lawful excuse. The Stipendiary Magistrate, by consent, heard both charges together and convicted the respondents. The respondents then appealed to Quarter Sessions and the learned Chairman stated a case for the determination of the Supreme Court of New South Wales. The question submitted by this case was answered in the Supreme Court by declaring “ that as the Magistrate had no juris­ diction to hear the cases together the proceedings before such Magistrate were a nullity, and there was consequently no adjudica­ tion from which to appeal to the said Court of Quarter Sessions.” Against this determination an appeal has been brought to this Court by special leave. The learned Judges of the Supreme Court were of opinion that the question submitted for their determination was governed by the decisions in R. v. Crane (1) and in R. v. Dennis (2). We do not think it necessary to decide whether the Magistrate had, or had not, jurisdiction to hear these cases together, for we are unable to agree with the conclusion that if there was no jurisdiction there was no adjudication from which an appeal lay to the Court of Quarter Sessions ; Crane’s Case is, we think, a decisive authority to the contrary. It is desirable, however, to say that the cases of R. V. Biggins (3) and R. v. Justices of Staffordshire (4) y u U require consideration if the question of the jurisdiction of a magistrate to hear cases together by consent of the parties hereafter becomes of importance. The Magistrate had jurisdiction over the charges laid against the respondents and, even if what took place before him was no trial at all or a mistrial, nevertheless, to adapt the words of Lord Sumner, in Crane, v. Public Prosecutor (5), the respondents were

(1) (1920) 3 K.B. 236; (1921) 2

(3) (1862) .5 L.T. (N.S.) 605.

A.C. 299.

(4) (1858) 32 L.T. (O.S.) 105.

(2) (1924) 1 K.B. 867.

(5) (1921) 2 A.C., at p. 331.

214 HIGH COURT

[1927.

H.C. OF A.convicted and to all appearances convicted on the charges laid against

1927.them. The Justices Act 1902, sec. 122, provides that “ every person

R u s s e l lwho for any offence has by the conviction or order of a justice

V.

B a t e s .. . . been adjudged to be imprisoned . . . or to pay any

Knox C.J.

fine . . . may appeal to a Court of Quarter Sessions against

Isaacs J. , •

, .

Gavan Dutty J . SUCh COnvictlon. .

. .” Those words, to use Lord Atkinson’s

Powers J.

•

Rich j . language in

V. Public Prosecutor (1), “ cannot mean

Crane

oL&ric6 t/ •

validly convicted, otherwise the statute would be futile and unworkable.” “ The very purpose ” for which the appeal is given is “ to consider whether the convictions of persons who had, in fact, been convicted were valid or the contrary, and to deal with them accordingly.” Consequently, there was an adjudication from which an appeal lay to the Court of Quarter Sessions. The duty of the Court of Quarter Sessions was to determine the matter of the appeals and by its order confirm, quash, set aside, vary or reduce the conviction or sentence as to the Court seemed just. The word “ quash ” in sec. 125 is unlimited and confers the power which a superior Court could on certiorari exercise in respect of a conviction made without jurisdiction. The other words confer power beyond that exercisable on certiorari and include complete authority to determine the whole matter.

I t has long been held in New South Wales that the appeal is by way of rehearing (cf. Sweeney v. Fitzhardinge (2) ). The learned Chairman of Quarter Sessions held, however, that he had authority to hear the cases together, that is to say, to hear the charge against Albert Bates and NeUie Isabel Bates together with the charge against Saunderson. All the respondents objected to the learned Chairman so proceeding and gave no consent to his so doing. It would be quite irregular in law for him so to proceed without such consent and, if he so proceeded, a mistrial would result. We do not consider it necessary in these cases to determine whether he would have any jurisdiction so to proceed in case the respondents consented to that course (again, see R. v. Biggins (3) and R. v. Justices of Staffordshire (4) ).

(1) (1921) 2 A.C., at p. 323.(3) (1862) 5 L.T. (N.S.) 605.

(2) (1906) 4 .C.L.R. 716.

(4) (1858) 32 L.T. (0.8.) 105.

40 C.L.R.] OF AUSTRALIA.

215

The question stated in the case should be answered as follows : H . C. o r A.

^

1927

That the Court of Quarter Sessions has jurisdiction to hear the

̂ ̂ j

B u s s e l lV.

appeals but that it should not hear the appeal of Albert Bates and

Nellie Isabel Bates together with the appeal of William RobertB a t e s .

Saunderson if any of the said respondents object thereto.

n ig ^ j.

H ig g in s J . So far as argument has been addressed to us, I concur with my learned brothers that the Court of Quarter Sessions had jurisdiction to hear the appeal, and for the reasons stated by them. Assuming that the Stipendiary Magistrate was properly seised of the charges, and assuming that he improperly allowed the charges to be tried together, it is for Quarter Sessions to put him right. The proceedings before the Magistrate were not, in my opinion, void ah initio; and under its powers Quarter Sessions can quash the conviction as based on an improper trial. I think the words of Lord Atkinson in Crane v Public Prosecutor (1) are conclusive.

My difficulty has been as to the Stipendiary Magistrate being properly seised of the charges. There was no information before him ; and yet the Gaming and Betting Act 1912 appears to intend an information (secs. 43, 44, 25, 33, 34). I t certainly startled me, as one not familiar with criminal law, that citizens can be dragged summarily by a policeman before justices on a mere warrant, and be forthwith tried together on differing charges unless they object to such a trial. They may not know that they could take such an objection. However, sec. 133 of the Justices Act 1902 seems to be conclusive on the subject; “ Where the party convicted . . . was present at the hearing of the case, the conviction . . . shall be sustained, although there may have been no information . . . unless such party objected at such hearing that there was no information. . . . ” I do not know of any EngUsh Act to this effect; but it seems to have been part of the statute law of New South Wales since 1853 (see 17 Viet. No. 39, sec. 16). And, in addition, the section seems to have anticipated the decision of numerous Justices in the Court for Crown Cases Reserved in R. v. Hughes (2). This decision has been the subject of doubt (see

(1) (1921) 2 A.C., a t p. 323.

(2) (1879) 4 Q.B.D. 614.

216 HIGH COURT

[1927.

H.C.or A.Dixon V. Wells (1) ); but it is followed (see Paley on Summary

1927. Convictions, 9th ed., pp. 163, 246). Under the circumstances, and

R u s s e l las there has been no argument to the contrary, I think that it is

V.

our duty to obey sec. 133 of the Justices Act 1902.

But it is for the

B a t e s .

Higgins J.Legislature to consider the danger of the practice.

The question whether either Petty Sessions or Quarter Ses'̂ ions can hear the charges together by consent, is, as I imderstand, to be left open.

Appeal allowed. Question answered as follows : The Court of Quarter Sessions has jurisdiction, to hear the appeals, but should not hear the appeals of Albert Bates and Nellie Bates together with the appeal of William Robert Saunderson i f any of the respondents object thereto.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Sohcitor for the respondents, A. Landa.

B. L.

(1) (1890) 25 Q.B.D. 249.