Sweeney v Kelly - [1908] HCA 53

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Practice-Special leave-Appeal from Supreme Court - Refusal to quash conviction SYDNEY,

on technical point-Matter of discretion-Licensing Act 1885 (Qd.) (49 Vict. August 28.

No. 18), sec. 75 (2)-Liquor Act 1886 (Qd.) (50 Vict. No. 30), sec. 25 - Notice of intention to prosecute-Evidence.

The licensee of an hotel was convicted and fined for an offence against the Licensing Act 1885. Sec. 25 of the Liquor Act 1886, requires that written

7 CLR 31

notice of intention to prosecute must be given to the accused, specifying the section of the Act under which the prosecution is intended to be instituted. The prosecutor had given written notice of intention to prosecute but the notice was not produced, and no evidence was given as to its contents. An application to quash the conviction on the ground that due proof of the notice had not been given was refused by the Supreme Court.

On an application to the High Court for special leave to appeal from this Held, that the grant or refusal of an order to quash a conviction on a purely technical point was in the discretion of the Supreme Court, and that, as this was a case in which they might properly have exercised their discretion by refusing the order, whether the reasons given by the Supreme Court for their refusal were sufficient or not, special leave to appeal should not be granted.

Special leave to appeal from the decision of the Supreme Court, (Kelly V. Sweeney; Ex parte Sweeney, 1908 St. R. Qd., 182), refused.

MOTION for special leave to appeal from a decision of the Supreme Court of Queensland.

The applicant, Ellen Sweeney, the licensee of a hotel at Dalby, in Queensland, was prosecuted before a Police Magistrate for keeping her licensed premises open for the sale of liquor on a Sunday, which is an offence against sec. 75 (2) of the Licensing Act 49 Vict. No. 18. The prosecutor, a police-constable, stated in his evidence that within 14 days of the alleged offence he served a notice of the intended prosecution upon the licensee personally at her hotel, and at the same time explained the nature of the notice to her, and on the following day laid an information against her and served the summons. The notice was not pro- duced and no further evidence was given as to its contents. The defendant was convicted and fined. She then obtained a rule nisi for a quashing order from Real J. on the ground that there was no proper proof of the service of a notice or that the notice complied with the provisions of sec. 25 of the Liquor Act 1886.

The Full Court (consisting of Cooper CJ., Real J. and Power J.) discharged the rule nisi by a majority, Real J. dissenting Kelly V. Sweeney; Ex parte Sweeney 1. On the question of costs, the notice was produced annexed to an affidavit and appeared…

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 Sweeney v Kelly

Details

AGLC: Sweeney v Kelly [1908] HCA 53
Case: [1908] HCA 53
Decision Date: 28 August 1908

CaseChat Overview and Summary

The applicant, Ellen Sweeney, sought special leave to appeal to the High Court of Australia from a decision of the Supreme Court of Queensland. Sweeney, a hotel licensee, had been convicted and fined for keeping her licensed premises open on a Sunday, an offence under the *Licensing Act 1885* (Qld). A key issue in the prosecution was compliance with section 25 of the *Liquor Act 1886* (Qld), which mandated written notice of the intention to prosecute be given to the accused, specifying the relevant section of the Act. While notice was given, it was not produced as evidence, and no details of its contents were provided during the initial proceedings. Sweeney applied to the Supreme Court to quash the conviction on the grounds of insufficient proof of the notice.

The legal issues before the High Court concerned whether special leave to appeal should be granted from the Supreme Court's refusal to quash the conviction. The Supreme Court had discharged a rule nisi for a quashing order, with a majority finding that the conviction should stand. Sweeney argued that there was no proper proof that the notice complied with the statutory requirements, and that the Supreme Court's decision departed from general rules of evidence. The High Court was therefore required to consider whether the Supreme Court's discretionary refusal to quash the conviction on a technical point was a matter that warranted appellate intervention.

The High Court held that the grant or refusal of an order to quash a conviction on a purely technical point is a matter within the discretion of the Supreme Court. The Court noted that while there might have been grounds for discussion regarding the sufficiency of the evidence of notice, the Supreme Court could have properly exercised its discretion by refusing to quash the conviction, irrespective of the specific reasons provided by individual judges. Given that the applicant admitted there were no merits to her case and the point was purely technical, the High Court concluded that special leave to appeal should not be granted.

Orders