Walsh v Doherty - [1907] HCA 51

MARGARET WALSH

THOMAS DOHERTY

COMPLAINANT,

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Notice of prosecution - Institution of proceedings - Notice given after lodging of

complaint-Licensing Act 1885 (Qd.), (49 Vict. No. 18), sec. 75 (2)-Liquor Act 1886 (Qd.), (50 Vict. No. 30), sec. 25-Justices Act 1886 (Qd.), (50 Vict, BRISBANE,

No. 17), secs. 42, 52.

In a prosecution under the Queensland Liquor Act 1886 for any of the offences named in sec. 25 of that Act, the provisions of that section-that notice in writing of the intended prosecution shall be given to the person intended to be prosecuted, specifying the section of the Act for breach of which the prosecution is intended to be instituted-are not satisfied by the

5 CLR 197

service of a notice of prosecution after the information for the offence in question had already been laid. A prosecution has been 'instituted" as soon as the complaint is lodged and the summons issued.

Decision of the Full Court: (Doherty v. Walsh; Ex parte Walsh, 1907 St. R. Qd., 180), reversed.

APPEAL by special leave from a decision of the Supreme Court of Queensland.

The appellant, licensee of an hotel at Roma, was prosecuted by the respondent, the licensing inspector, for an offence against sec. 75 (2) of the Licensing Act (Qd.), (49 Vict. No. 18), in keeping her licensed premises open for the sale of liquor on a Sunday, and was convicted and fined. She appealed from the conviction to the Supreme Court on the ground that by sec. 25 of the Liquor Act 1886 (Qd.), (50 Vict. No. 30), no licensee should be con- victed of any offence against sec. 75 of the Licensing Act, "unless within fourteen days after the day on which the offence is alleged to have been committed notice in writing of the intended prosecu- tion is given to the person intended to be prosecuted, specifying the section of the Act for breach of which the prosecution is intended to be instituted; " whereas in fact the constable who lodged the complaint had not served such notice upon the appellant until after he had taken out a summons on the com- plaint, which he served upon her immediately after delivery of the notice. An order nisi was granted by Real J. to quash the conviction, but the Full Court (Cooper C.J. and Power J., diss. Real J.) discharged the rule, considering that the word prosecution" was used in sec. 25 in its popular meaning, SO as to denote merely the proceedings in the Police Court on the day of hearing before the magistrate, and not in the legal sense of the initiation of proceedings in the prosecution by the formal lodging of a com- plaint. From this decision 1 an appeal was brought to the High Court by special leave.

Power, for the appellant. The meaning of sec. 25 is that the notice of the intended institution of proceedings must be served on the defendant before…

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 Walsh v Doherty

Details

AGLC: Walsh v Doherty [1907] HCA 51
Case: [1907] HCA 51
Decision Date: 8 October 1907

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Queensland concerning a prosecution under the *Liquor Act 1886* (Qd.). The appellant, a hotel licensee, had been convicted of keeping her premises open for the sale of liquor on a Sunday. The central dispute revolved around whether the respondent, the licensing inspector, had complied with the notice requirements stipulated in section 25 of the *Liquor Act 1886*.

The legal issue before the High Court was whether the notice of intended prosecution, as required by section 25 of the *Liquor Act 1886*, must be served *before* the institution of proceedings, which are deemed to commence upon the lodging of the complaint and the issuance of a summons. The Supreme Court of Queensland had held that the term "prosecution" in section 25 referred to the court proceedings rather than the initiation of legal action, and therefore, service of the notice after the complaint was laid was sufficient.

The High Court, in allowing the appeal, reasoned that the language of section 25, which referred to an "intended prosecution" and a person "intended to be prosecuted," clearly indicated that the notice must precede the institution of proceedings. The Court held that a prosecution is instituted when the complaint is lodged and the summons issued. As the notice in this case was served after the complaint was laid, it did not satisfy the statutory requirement. Consequently, the High Court ordered that the appeal be allowed, the order of the Supreme Court be discharged, and an order to quash the conviction be made absolute, with costs awarded to the appellant.

Orders