Commissioner for Railways (NSW) v Cavanough [1935] HCA 45

a Period of suspension - Unpaid salary - Government Railways Act 1912 (N.8 Sypyey, (No. 30 of 1912), sec. 80 - Crimes Act 1900 (N.S.W.) (No. 40 of 1900) June 11, 20. 501 (Crimes (Amendment) Act 1924 (N.S.W.) (No. 10 of 1924), sec. 24).* Bisca avatt 'The respondent was an officer in the employ of the Commissioner fo

ways of New South Wales and, as such, received a certain salary. summarily convicted under sec. 501 of the Crimes Act 1900 (enacted b; of the Crimes (Amendment) Act 1924) (N.S.W.) of stealing an article

six shillings. The conviction was set aside by a Court of Quarter

• The Crimes Act 1900 (N.S.W.), as amended by the Crimes (Amendment) 'Act 1924 (N.S.W.), provides : - By sec. 9: " Whenever by this Act a person is made liable to the punishment of death, or of penal servitude, the offence for which such punishment may be awarded is hereby declared to be and shall be dealt with as a felony, and wherever in this Act the term 'felony' is used, the same shall be taken to mean an offence punishable as aforesaid." By sec. 501: - '*(1) Whosoever commits or attempts to commit - (a) simple lar-

ceny; or (b) the offence of any chattel, money, or valual from the person of another and the amount of money or th of the property in respect of whic offence is charged . . + exceed ten pounds, shall on con' in a summary manner . + liable to imprisonment for months or to pay a fine of Pp (2) The jurisdiction conf z by this section . . . shall cisable only by a stipendiary magistrate."

appeal. 'The respondent then sued the Commissioner for salary for the period between the date of his conviction, when he was suspended, and the date of the setting aside of the conviction, when he was reinstated. The Commis- sioner relied upon sec, 80 of the Government Railways Act 1912 (N.S.W.), which provides that an officer convicted of felony shall be deemed to have vacated his office,

Held that upon the setting aside of the conviction it was avoided ab initio;

• therefore the respondent could not be deemed to have vacated his office and he 'was entitled to the salary claimed.

Per Starke J.; The conviction of the respondent under sec. 501 of the Crimes Act was not a conviction for a felony.

_ Decision of the Supreme Court of New South Wales (Full Court) : Cavanough vy, Commissioner for Railways, (1935) 35 S.R. (N.S.W.) 162; 52 W.N. (N.S.W.) $1, affirmed subject to a variation.

nan action instituted in the Supreme Court of New South Wales, cil Herman Cavanough sued the Commissioner for Railways of 'State to recover the sum of £88 10s. 6d. which, in the first he claimed was payable to him by the defendant for services red by him as the officer and servant of the defendant, and for and salary in respect of those services. In a second count iff alleged that he was employed by the defendant as a er in the railway service at a certain rate of salary; that term of the employment that he should not be suspended y otherwise than for misconduct, or breach of any rule, or regulation of the railway service; and that he was y suspended from duty otherwise than for misconduct, or of any rule, by-law or regulation of the railway service, he was prevented from carrying out his duties as a night rand was deprived of salary he could and would otherwise ea The defendant, in a second plea, pleaded, as to the e of action, that prior to the conviction thereinafter ed to, the plaintiff was an officer within the meaning of the nent Railways Act 1912 (N.S.W.) and whilst so employed g office he was convicted of a felony, whereupon his e vacated and his employment terminated by virtue 0 of that Act; that an appeal by the plaintiff against the was upheld and the conviction set aside ; that after the

setting aside of the conviction the plaintiff was re-employed by th defendant in the railway service ; and that the plaintiff's claim was o1 for wages alleged to be due to him in respect of the period between thi vacation of office and the re-employment. By way of replication th plaintiff stated that the conviction referred to by the defer was a conviction in a summary manner before a police magisti of the offence of stealing one primus burner of the value of six sh the property of the defendant ; that by the conviction it was adj that he should pay a fine of one pound, and one pound five shilli costs ; and that in default of payment he should be imprisoned five days with hard labour. q

The plaintiff demurred to the second plea, and the defend an demurred to the replication. The substantial grounds of the plait tiff's demurrer were (a) that the facts alleged in the plea did nc establish that he vacated office during and for the period in of which the claim for wages was made, and (b) that upon the uph ing of his appeal and the setting aside of his conviction he shoul be deemed never to have committed the alleged felony.

The effect of the judgments of the Full Court of the Sy Court was that there should be judgment on the second plea f the defendant in demurrer, judgment for the plaintiff on demurrer, and, as a whole, judgment for the plaintiff in dem Cavanough v. Commissioner for Railways (1).

From that decision the defendant now, by special leave, ap to the High Court.

Bradley K.C. (with him Chambers), for the appellant. respondent was convicted under sec. 501 of the Crimes Act 19 (N.S.W.), of the offence of larceny. This is an offence punishable penal servitude (see Crimes Act 1900, secs. 117-120), and is th felony within the meaning of sec. 9 of that Act (see also Interpre Act 1897 (N.S.W.), sec. 29, and Kenny's Outlines of Criminal 14th ed. (1933), pp. 221 et seq.). The Legislature intended th definition to apply to the word " felony " as used in sec. 80 of | Government Railways Act 1912.

(1) (1935) 35 S.R. (N.S.W.) 162; 52 batayit (N.S.W.) 31. (2) (1932) 47 C.L.R. 53.

m his conviction the respondent automatically and without y action on the part of the appellant, " vacated his office" within meaning of that expression in sec. 80. Statutory provisions to those contained in sec. 80 were before the Court in Hunkin (1). Sec. 501 of the Crimes Act 1900 is a procedure section : not create new offences. Although dealt with under sec. 501 e larceny, the offence was one of stealing in respect of which ers are liable to the punishment of penal servitude (sec. 116). test that should be applied in order to ascertain whether an a felony is: Is the offender liable, as here, to the punish- nt of penal servitude ? (sec. 9). The word " office" in sec. 80 of Government Railways Act 1912, means employment. Upon a viction for "' any felony" the "' office" is "' vacated " automati- y (In re Bodega Co. (2)), and remains vacated whilst the onviction subsists. The setting aside of the conviction does not upon an offender a right to be reinstated ; his return to the yment depends upon a re-appointment by the Commissioner. natively, the right of an offender, in that circumstance, is to tated as from the date of the setting aside of the conviction.

In either case he has no legal right to payment for the period between he date of the conviction and the date it was set aside (In re a Co. (3) ).

O'Mara (with him Evatt), for the respondent. The conviction set aside; therefore the respondent was not "convicted of any

att J. referred to R. v. Drury (4). J. referred to In re Hay; Langford v. City of Richmond

effect of the setting aside of a conviction is that there never conviction as a matter of law. The same results flow from 'Setting aside of a conviction as from the grant of a pardon; 'is, the person concerned is entitled to all rights and privileges, g employment and payment, as if there had never been

peas 51 CLR. 538, at pp. 541, (4) (1849) 3 Car. & K. 193, at p. 199; : 175 E.R. 517, at p. 520. ey 1Ch. 276, at (5) (1922) V.L.R. 186 ; 43 A.L-T. 158, ( 1Ch., at pp. 5 8T,

a conviction recorded against him (Hay v. Justices of the Tower Diwision of London (1) ). The basal requirement of sec. 80 of Government Railways Act 1912 that there must be a convie for a felony is not satisfied; therefore the respondent canno "be deemed to have vacated his office." The effects of a vacating of office under sec. 80 are far-reaching ; that section should, therefi be construed strictly.

Bradley K.C., in reply. The Legislature intended that a vacati

authorized by the Government Railways Act 1912 to pay sala other remuneration to an employee in respect of the period betws the date of the latter's conviction and the date on which that convie-

tion was ultimately set aside. (Drxon J. referred to Dr. Drury's Case (2).]

Ricu, Drxon, Evarr anp McTiernan JJ. By sec. 80 of the Government Railways Act 1912 (N.S.W.) it is provided that an of convicted of felony shall be deemed to have vacated his office.

The respondent was an officer of the Commissioner and, as s received a certain salary. He was summarily convicted of larce under sec. 501 of the Crimes Act 1900 (N.S.W.). From that conv tion he appealed to Quarter Sessions, which upheld his appeal an set aside the conviction (sec. 125 (1) of the Justices Act 1902 (N.S.W.) During the period which elapsed from his conviction until it reversal he received no salary and the performance of his duti¢ was suspended. :

Upon these facts, which are not proved but appear from pleadin demurred to, the question for our decision is whether the respondet is entitled to recover the unpaid salary.

In our opinion he is so entitled because, his conviction havi been quashed, he cannot be considered ever to have been convic and he cannot be deemed to have vacated his office.

(1) (1890) 24 Q.B.D. 561, at p. 565. (2) (1610) 8 Co. Rep. 141 b; 77 E.R. 6

_ An appeal is not a common law proceeding. It is a remedy given H- cae A by statute (Attorney-General v. Sillem (1); Victorian Stevedoring =< d General Contracting Co. Pty. Ltd. and Meakes v. Dignan (2) ). Comats- The scope and effect of an appeal must in the end be governed rasta! the terms of the enactment creating it. But the power given to Mie re alia Quarter Sessions includes authority to quash and set aside eae onvictions. These are familiar expressions and describe a juris- Rich J, diction exercisable at common law by Courts of error. The effect y ivan y. of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it e upon a statutory appeal. The conviction is avoided ab initio. The judgment reversed is the same as no judgment " (per Coleridge ]., R. v. Drury (3) ). If the conviction were alleged in a pleading, it would be a good er that there was no such record (Dr. Drury's Case (4) ). It is utterly defeated and annulled " (Lord Sanchar's Case (5) ). Acts according to the exigency of a judicial order afterwards reversed ; protected: they are " acts done in the execution of justice, which , compulsive " (Dr. Drury's Case (6) ). And proceedings which, gh based upon a judgment, are brought to completion before reversal are not avoided. For "collateral acts executory are ed, but not collateral acts executed " (Dr. Drury's Case (7) ). "upon the reversal of a judgment against any person convicted any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, 'heir or personal representative, as the case may be) will be entitled be restored to all things which he may have lost by such erroneous ment and proceedings, and shall stand in every respect as if had never been charged with the offence in respect of which udgment was pronounced against him" (Archbold's Criminal , Evidence and Practice, 21st ed. (1893), pp. 226, 227). the respondent in contemplation of law was never out of office, entitled to the salary attached to it. There is no allegation

(1863) 2-H, & C. 581, at pp.608, (4) (1610)8 Co. Rep., at p. 142 b; 77 609; 159 E.R. 242, at p. 253; E.R., at p. 691 (i804) 10 HL. Cas, 704; 1 ER. (5) (1613) 9'Co. Rep. 117 a, at Pp

= 119b; 77 E.R. '902, at p.'906. (2) (1931) 46 C.L.R. 73, at p. 108. (8) (1610) 8 Co. Rep. at p. 143; (8) (1849) 3 Car. & K., at p. 199;

T7ER., at p. 691, 175 E.R, at p. 520. (7) (1610)8 Co. Rep. 141 b; 77 E.R.688. VOL, Lit.

ad Comaas- SIONER FOR RamLways (N.S.W.) v. CavanoucH.

;y, Of this interpretation of the Crimes Act was not fully argued upon

that under the terms of his employment an actual performance of duty is a condition precedent to his right to salary.

The Supreme Court (Davidson and Street JJ., Stephen J. dissenting) reached a conclusion in favour of the respondent but based it upon another ground. Their Honors all rejected the view which commends itself to us, but the majority were of opinion that a summary conviction for larceny is not a conviction of felony. The correctness

the hearing of this appeal, but we desire to say that we must not be taken as assenting to it.

The judgment of the Supreme Court should be varied by entering judgment for the plaintiff on the demurrer to the second plea, Subject to the variation, the appeal should be dismissed with costs.

Srarke J. Cavanough sued the Commissioner for Railways of New South Wales for wages. The Commissioner, by a plea, alleged that the wages sued for were in respect of a period between Cavanough's vacation of office and his re-employment, and that Cavanough, an officer within the meaning of the Government Railways Act 1912, was convicted of a felony, and thereby vacated office, and thereafter he appealed and his conviction was set aside, whereupon he was re-employed. Cavanough, in his replication to the plea, alleged that the conviction in the plea mentioned was a summary conviction of the offence of stealing one primus burner of the value of six shillings, and that the conviction adjudged him to pay a fine of £1 and certain costs and, in default, imprisonment. Cavanough demurred to the Commissioner's plea, and the Commissioner to Cavanough's replication. The Government Railways Act 1912, sec. 80, provides : " If any officer is convicted of any felony . . . he shall be deemed to have vacated his office." Two questions arise, one whether the summary conviction of Cavanough constituted a conviction for felony: the other whether the setting aside of that conviction abrogated and obliterated it. *

The offence of simple larceny created by sec. 117 of the Crimes Act 1900 is undoubtedly a felony (see secs. 9, 116, 117, and Interpretation Act 1897 (N.S.W.), sec. 29.) It may be that the pro- visions of the Crimes Act 1900, Part XIV., chapter I., providing for

hearing and determination of certain indictable offences in a nl manner, do not alter the character or quality of the offence (Inre Burley (1) ). But chapters I. and IIT. deal with offences punish- e summarily as distinguished from indictable offences punishable ily. Chapter III. comprises, amongst other offences, " A. Its; B. Larceny and similar offences." The language used in various sections is appropriate for the creation of offences, and no offence would exist, in many cases, but for the particular section. (See secs. 495, 496, 505, 506, 510, 512.) Sec. 501, under which favanough was charged and convicted, falls within chapter IIIs. and des : - "(1) Whosoever commits . . . (a) simple larceny ; r(b) the offence of stealing any chattel, money, or valuable security rom the person of another . , . and the amount of money or the value of the property in respect of which the offence is charged . . « does not exceed ten pounds, shall on conviction in a summary . . . be liable to imprisonment for twelve months or to pay a fine of fifty pounds. (2) The jurisdiction . . . shall ercisable only by a stipendiary or police magistrate." But provision does much more than prescribe a summary punishment for an offence already created: it states the offence and what is y to constitute it an offence punishable in a summary manner. e provisions of secs. 497 and 548a were referred to as inconsistent h this view. But the effect of those sections is that the offence hable in a summary manner may be remitted for trial upon ctment, as an indictable offence may be remitted for summary and determination under Part XIV., chapter I. In the result with Davidson and Street JJ. that Cavanough was not con- ected of any felony. n if Cavanough were convicted of a felony, however, the of his appeal and the setting aside of his conviction ited and obliterated it. It is true that anyone who acts in tion of a judgment may justify under it, notwithstanding its reversal or annulment, for it was good when given (Alleyne V. The Queen (2); Smallcombe v. Olivier (3) ). But the conse- e of the reversal of a judgment or conviction is that it is

ass) 47 CLR. 53. (3) (1844) 13 M. & W. 77; 153 E.R.

1. 5 E. & B. 399 ; 119 E.R. 529, 32.

ES ae A. annulled and held for nothing, and the party is restored to all things" "which by reason of the judgment he has lost (see Archbold's eal Criminal Pleading, Evidence and Practice, 22nd ed. (1900), p. 261; Ramways Rv. Drury(1); R. v. O'Keefe (2); R. v. Lee (3)). The allegation oe) in the plea that Cavanough's appeal was upheld and his conviction coe lala set aside is in substance an allegation, when the relevant statute Starke J. (Justices Act 1902) is examined, that the conviction was reversed and quashed. The consequence was that his conviction was obliterated, and, to use the language of the old forms, " altogether

Judgment should be entered for the plaintiff in demurrer.

Judgment of the Supreme Court varied by enterin judgment for the plaintiff on the demurrer to the second plea. Subject to the variat appeal dismissed with costs.

Solicitor for the appellant, 7. W. Bretnall, Solicitor for Transp Solicitors for the respondent, Landa & Lamaro.

(1) (1849) 3 Car. & K. 193; 175 E.R. 517. (2) (1894) 15 L.R. (N.S.W.) 1; 10 W.N. (N.S.W.) 194. (3) (1895) 16 L.R. (N.S.W.) 6; LL W.N, (N.S.W.) 121.