ON APPEAL FROM A COURT OF PETTY SESSIONS OF NEW SOUTH
WALES, AND ON APPEAL FROM A COURT OF QUARTER
SESSIONS OF NEW SOUTH WALES. Constitutional Law-Delegation of legislative powers-Act relating to national security
and defence-Regulations thereunder-Validity-National Security Act 1939. 1940 (No. 15 of 1939-No. 44 of 1940), sec. 5-National Security (General) SYDNEY,
Regulations, reg. 41 (1), (2). April 2, 4,
High CourtPractice-Conviction by State Court of Petty Sessions exercising Federal
jurisdictionProhibitionApplication to High Court-Conniction affirmed by State Court of Quarter Sessions-The Constitution (63 &64 Vict. c. 12), sec. 73 (ii)-Judiciary Act 1903-1940 (No. 6 of 1903-No. 50 of 1940), sec. 39 (2) (b), (c)-Rules of the High Court, Part II., sec. IV., r. 1-Justices Act 1902 (N.S.W). (No. 27 of 1902), secs. 112, 122.
Sec. 5 of the National Security Act 1939-1940 is not an illegal delegation to the Executive of legislative power, but is a valid exercise of the defence power.
An order of a Court of Quarter Sessions of New South Wales confirming on appeal a conviction by a magistrate exercising Federal jurisdiction is, while it stands, a bar to any appeal from the magistrate's decision direct to the High Court.
APPEAL, by way of order nisi for prohibition, from a Court of Petty Sessions of New South Wales, and APPLICATION for special leave to appeal from a Court of Quarter Sessions of New South Wales.
John Royston Wishart, a solicitor, was charged before a Court of Petty Sessions at Sydney on the information of Jack Lyall Fraser, a detective of the police force of the State of New
South Wales attached to the Commonwealth Military Police Intelligence, with an offence under sec. 10 of the National Security Act 1939-1940 and reg. 41 (1) (b) of the National Security (General) Regulations made pursuant to that Act, for that on 25th June 1940 at Sydney he did, with intent to endeavour to cause disaffection among members of the Second Australian Imperial Forces engaged in the service of the King, have in his possession a document which was of such a nature that the dissemination of copies thereof among such members would constitute an endeavour to cause disaffection among those members, contrary to the Act. The document referred to, which was set forth at length in the information, was addressed "To the soldiers of the Second A.I.F.," and was headed Military punishment and the rank and file." It contained a statement, which was alleged to have appeared in a newspaper, of the treatment said to have been meted out to some members of the A.I.F. " who were doing time for minor offences, mainly A.W.L.," and the comment thereon was that "all this is just a first taste of the evils that military stupidity and red tape can cause and which the rank and file will have to put up with," and that "the solution of all your problems lies…
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.
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Details
AGLC
Wishart v Fraser [1941] HCA 8
Case
[1941] HCA 8
Decision Date
CaseChat Overview and Summary
John Royston Wishart was charged with an offence under the National Security Act 1939-1940 and the National Security (General) Regulations. The charge alleged that Wishart possessed a document with the intent to cause disaffection among members of the Second Australian Imperial Forces. He was convicted by a magistrate exercising Federal jurisdiction and subsequently appealed to the Court of Quarter Sessions, which affirmed the conviction. Wishart then sought a writ of prohibition from the High Court and later applied for special leave to appeal from the Court of Quarter Sessions' decision.
The High Court was required to determine two primary legal issues. Firstly, whether section 5 of the National Security Act 1939-1940 constituted an unlawful delegation of legislative power to the Executive. Secondly, the court had to consider whether an appeal to the High Court from the magistrate's conviction was still available after the Court of Quarter Sessions had affirmed that conviction, or if the appropriate avenue was an application for special leave to appeal from the Quarter Sessions' decision.
The Court held that section 5 of the National Security Act was a valid exercise of the defence power and not an illegal delegation of legislative authority, referencing previous High Court decisions on the matter. Regarding the procedural issue, the Court determined that the order of the Court of Quarter Sessions confirming the magistrate's conviction, while it stood, acted as a bar to a direct appeal from the magistrate's decision to the High Court. Therefore, the proper course for Wishart was to pursue an application for special leave to appeal from the Court of Quarter Sessions' judgment. The Court also found that there was sufficient evidence to support the conviction and that the Attorney-General's consent to prosecute was properly evidenced.
Consequently, the High Court discharged the rule nisi for prohibition and refused special leave to appeal. This meant that Wishart's conviction and sentence were upheld.