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[1932] HCA 36
High Court of Australia
1932-07-01
Original judgment source is linked above.
McMaster, who was called as a witness, said that the description ,,,
" principal officer at Campsie " applied to him. There is no evidence that the owner or her agent communicated with that officer on the question of refraining from executing the warrant. Inspector McMaster also said that it was approximately about three-quarters of an hour after the police came to the cottage to execute the warrant that he " formally handed over to Mrs. McDonald" and that " the warrant was then executed." It appears that the agent, Mrs. McDonald, who is alleged to have countermanded the warrant which required and authorized the police to enter the premises and to give her possession of them, was present on the scene when the warrant was executed and thereupon accepted the possession of the premises from the police. Inspector McMaster said that when he formally handed over the premises to her, the warrant was executed.
'Thus it is doubtful whether the point, upon which special leave is asked, does arise on the evidence. But as the order of the Supreme Court directing a new trial will stand, I have expressed my concur- rence in the view that, even if the agent had asked the police not to execute the warrant, the result would not have been to take the conduct of the accused out of sec. 58 of the Crimes Act 1900 of New South Wales.
I agree with the conclusions of my learned brothers on the questions involving sec. 98 (2) of the Justices Act 1902-1918 and sec. 23 (2) (c) of the Landlord and Tenant Act 1899-1930; and I have nothing to add on these questions.
Both applications for special leave to appeal refused.
Solicitors for the applicants, C. Jollie Smith & Co.
Solicitor for the respondent, J. Z. Clark, Crown Solicitor for New South Wales.