27 Mons Hisin v 72

27 Mons Hisin v 72 - [1955] HCA 53 - HCA 1955 case summary — Zoe

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The Service and Execution of Process Act 1901-1953 provides as follows : - 18. - (1) Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Justice of the Peace or an officer of a court has, in accordance with the law ofa State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an indorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act authorizing its execution in that other State or part of the Commonwealth. (2)... . (3) Subject to this section, the Magistrate or Justice of the Peace before whom the person is brought may - (a) by warrant under his hand, order the person to be returned to the State or part of the Commonwealth in which the original warrant was issued and, for that purpose, to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed ; or (b) admit the person to bail, on such recognizances as he thinks fit, on condition that the person appears at such time, and at such place in the State or part of the Commonwealth in which the original warrant was issued, as the Magistrate or Justice specifies to answer the charge or complaint or to be dealt with according to law. (4) . - - (5) . . . (6) If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that - (a) the charge is of a trivial nature ; (b) the appli- cation for the return of the person has not been made in good faith in the interests of justice ; or (c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period, the Magistrate or Justice of the Peace may - (d) order the discharge of the person; (c) order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period ; or (f) make such other order as he thinks just. 19. - (1) Where - (a) a person apprehended is dissatisfied with an order made under sub-s. (3) or (6) of the last preceding section ; or (b) a Magistrate or Justice of the Peaco has made, under sub-s. (3) or (6) of the last preceding section, an order

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Gregory Gowans Q.C. (with him J. M. Cullity), for Irvine. Section 18 (1) and (2) of the Service and Execution of Process Act 1901-1953 involves the discharge of functions which are part of the executive power of the Commonwealth. The appointment of officers to discharge those functions is governed by s. 67 of the Constitution. [He referred to Renton v. Renton (6); frost v. Stevenson (7) ; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (8) ; Huddart Parker & Co. Pty. Ltd. v. Moorehead (9); Bradshaw v. The Commonwealth (10); R. v. Murray and Cormie; Ex parte The Commonwealth (11); Edwards vy. The Commonwealth (12) ; Myers v. United States (13).] The practice in the United States of making use of State officers for the implementing of Federal laws under the Fugitive Offenders and Fugitive Labour provisions of the Constitution is now said to rest upon comity between the United States and the several States and upon State consent, although a wider doctrine formerly prevailed. [He referred to Prigg v. Commonwealth of Pennsylvania (14); Ex parte Kentucky v. Dennison (15).] Section 18 (3) attracts the same considerations. These sub-sections are invalid for lack of appointment under s. 67 of the Constitution. Section 18 (6) involves the discharge of either executive functions or judicial functions. If executive functions, s. 18 (6) attracts the same considerations as s. 18 (1), (2) and (3) and is invalid for the same reason. If judicial functions, s. 18 (6) involves the exercise of the judicial power of the Commonwealth under Chap. III and not any other judicial power. As such it is invalid because it is not vested in a State court under s. 77 (iii.) of the Constitution and cannot be vested otherwise. Even if s. 18 (6) involves judicial functions and is not otherwise invalid it would fall with s. 18 (1), (2) and (3) which are invalid. Section 19 is depen- dent on s. 18 and is not severable from it, and, consequently, is invalid, whatever the nature of the power conferred. Section 19

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powers are conferred they are non-judicial functions conferred on a State court and the conferring is. unauthorized by Chap. III or any other head of power. [He referred to Parkin and Cowper y. James (1); Medical Board of Victoria v. Meyer (2); Re Alstergren and Nosworthy (3); Queen Victoria Memorial Hospital y. Thornton (4).] (b) If it is not the Supreme Court upon which powers are conferred they are executive powers forming part of the executive power of the Commonwealth and the section is invalid for lack of appointment under s. 67 of the Constitution. It would be unjust or oppressive to order the return of Irvine to the State of South Australia. [He referred to R. v. Secretary of State for India; Ex parte Ezekiel (5); Re George (6); O'Donnell y. Heslop (7); Re Alstergren and Nosworthy (8).| The elements necessary in the object of a conspiracy to cheat and defraud are that it must embrace the obtaining of a valuable thing from the persons conspired against for the benefit of the conspirators and there must be something in the nature of a fraud. There is something more than not playing the game required. The agreement which flows from nomination of a horse is with the racing club, not with the other competitors. [He referred to Ellesmere (Earl) v. Wallace (9).] The nominator does not agree that he will fulfil all the conditions applicable to him laid down in the rules of racing but he does agree that, insofar as those rules subject him to penalties for breach, he will accept those penalties. There is no representa- tion by the nominator as to the existence of facts which the rules of racing require to be fulfilled or as to the ultimate fulfilment in the course of the race of all the rules or requirements laid down. In all the cases which have been cited there was a misrepresentation of some sort. [He referred to R. v. Orbevill (10).] Glanville Wilkams on Criminal Law (1953) (General Part), p. 541, suggests that the object of a conspiracy must at least be the commission of a tort. None of the cases go further than the view that, even if the object is not so limited, it goes beyond the commission of acts which would enable civil relief to be obtained either at law or equity. (He referred to R. v. Weaver (11); Crofter Hand Woven Harris Tweed Co. v. Veitch (12); Reg. v. Newland (13).] Conspiracy is

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law that might otherwise be raised upon the committal proceedings in Adelaide or at the trial. All that it means is that upon the facts suggested for the prosecution, if made out, what in law may amount to an indictable conspiracy may reasonably be found. It is not enough that the information as laid is open to criticism, as very likely it is. In the circumstances of this case it must appear that upon the suggested facts the charge of conspiracy is misconceived. It is only in that event that the accused should be discharged now. What is alleged here is more than a combination to violate the rules of racing. It involves deception for the purpose of securing a declaration that the horse had won the race, so that the prize-money and bets would follow, when according to the rules of racing there would be no title to such a declaration but on the contrary there should be a disqualification. It is undesirable to say more now than that these elements in the facts alleged warrant the course of remanding the accused persons to Adelaide in pursuance of the warrants to undergo committal proceedings or trial. A consider- ation of the cases of R. v. De Berenger (1); R. v. Hudson (2) ; R. v. Donnelly (3); Kerford & Box's Digest, 153 (5 Aust. Digest 214) ; R. v. Aspinall (4) ; R.v. Warburton (5), is enough to show that this course is justified. The orders nisi in the case of Aston v. Irvine and Aston v. Jenkins should be made absolute and an order should be made in each of those cases that the person against whom the warrant was granted be returned to South Australia and for that purpose that he be admitted to bail on his recognizance in the sum of £100 with one surety in the same amount to appear at the Police Court at Adelaide on the date and at the time therein specified to answer the charge in the warrant. In the case of Conway v. Aston the order nisi should be discharged and Conway should be admitted to bail in a like recognizance with one surety. The recognizance will be taken before a judge of this Court.

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