Hall v Braybrook - [1956] HCA 30 - HCA 1956 case summary — Zoe

CTHHCA

Hall v Braybrook

[1956] HCA 30

High Court of Australia|1956-06-15|Before: Kitto JJ, Sholl J

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Source facts

Court

High Court of Australia

Decision date

1956-06-15

Before

Kitto JJ, Sholl J

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Williams, Fullagar and Kitto JJ. Hall v Braybrook [1956] HCA 30

[2]

The appellant appeared before a stipendiary magistrate and a justice of the peace in the court of petty sessions at Camberwell in the State of Victoria upon a charge of larceny of a fountain pen and pencil set having a value of £20 7s. 0d. Earlier in the day he had been convicted before the justice of the peace of another larceny and sentenced to six months' imprisonment. On that occasion it appeared that the appellant had previously been convicted and that in New Zealand a sentence of two years' imprisonment had been imposed upon him. When the information for stealing the pen and pencil set was read to the accused in accordance with the practice governing indictable offences an application was made for the informant that the charge be treated summarily, as it might be under s. 72 of the Crimes Acts 1928 Vict. now embodied in s. 8 of Act No. 5379. On the magistrate inquiring whether the charge was one which could properly be so dealt with an affirmative answer was given. Nevertheless the magistrate directed that depositions be taken. At the end of the evidence in support of the information counsel for the defendant joined in the application for the informant that the charge be dealt with summarily. In the discussion which ensued the magistrate referred to criticisms made in England of the use that was made of the power in inappropriate cases and asked whether the counsel was prepared either to assure him that the defendant had no criminal record or, if he had one, to disclose it. The defendant's counsel declined to adopt either course. The magistrate adverted to the fact that to obtain an account of the history of a defendant might be to disqualify the justices who did so from hearing and determining the information if, in spite of what they learned about him, they decided to deal with the charge summarily. He then referred to the facts ascertained when the defendant was convicted earlier in the day before the justice of the peace now sitting with the magistrate. The justice of the peace of course informed him of these facts. The application or applications that the charge be dealt with summarily was then refused on the ground that, in the language of the proviso to s. 72, the charge was from the circumstances fit to be prosecuted as for an indictable offence rather than to be disposed of summarily. The bench agreed to adjourn the further hearing of the charge as one for an indictable offence so that the defendant might apply to the Supreme Court for an order nisi to review the decision not to hear and determine the charge in a summary way. An order nisi was obtained accordingly.

[3]

There is clearly a question whether the refusal to proceed summarily is an order within the definition contained in s. 4 of the Justices Act 1928 so as to fall within s. 150. To be so it seems necessary to treat the refusal of the magistrate to dispose of the information summarily as the refusal of an application or a determination within the meaning of the definition of the word "order". Sholl J. was prepared to regard it as a determination or a refusal to entertain an application. If it is an application within the meaning of the word in the definition of "order" no doubt it was refused, but it is not easy to say that it was not "entertained". On adjourning the hearing the magistrates remanded the defendant, admitting him to bail. Perhaps this was done under s. 57 of the Justices Act 1928. The decision to adjourn and remand the defendant may perhaps fall within s. 150 but it is difficult to see how, on an appeal from the mere remand of the defendant, it is possible to go back upon the antecedent decision of the magistrates that in the exercise of their discretion they would not hear the charge summarily but would treat it as an information for an indictable offence. However, although it is a difficulty which the appellant must overcome, if he is to succeed, it is not a point upon which the respondent desired that we should decide the appeal. He, like the appellant, sought a decision on the correctness or incorrectness of the magistrates' refusal to proceed summarily. In the event Sholl J. discharged the order nisi on the ground that the decision of the magistrates involved no improper exercise of their discretion. He decided that, for the purpose of forming an opinion whether, in the words of s. 72, the charge is from any circumstances fit to be prosecuted as for an indictable offence rather than to be disposed of summarily, the magistrates were at liberty to take into account information in their possession as to previous convictions of the defendant and treat it as a ground for refusing to deal with the matter summarily. From this decision the defendant sought special leave to appeal to this Court.

[10]

This general rule is subject to specific exceptions or qualifications the grounds of which are as well recognised as the exceptions themselves. The most important is, of course, found in the cross-examination of a prisoner to credit, if he gives evidence on his own behalf and, in Victoria, if such cross-examination is allowable under s. 432 (e) of the Crimes Act. But these exceptions only serve to give emphasis to the general rule which in truth has gone far beyond a precept of the law of evidence and has become a principle which pervades the law governing the conduct of criminal proceedings. It seems to have appeared as a rule of evidence towards the close of the seventeenth century and under the influence of judicial practice and statutory enactment gradually to have hardened into a principle, a principle to any infringement of which all concerned in the criminal law are highly sensitive because of the prejudice to the issue of guilt which is thought inevitably to ensue. Speaking of evidence of the prisoner's bad character Willes J., in Reg. v. Rowton [1] , said: "The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine" [2] . Perhaps no more striking modern example of the strength of the principle could be cited than R. v. Dyson [3] , where a court consisting of Viscount Caldecote L.C.J., Asquith and Cassels JJ. quashed a conviction of larceny at the Huddersfield Borough Quarter Sessions, although as Asquith J. said in delivering the judgment of the court, "the evidence against the appellant was short and overwhelming" [4] , because before the magistrates who committed him for trial some forty previous convictions of the appellant were read out and published in the local newspapers. As the law stood it was right to acquaint the magistrates with the list of convictions, but Asquith J. said: "Nevertheless, there are, of course, always risks that the previous record of the accused may, either through being read out in Court, or, as in this case, through being published in a local newspaper, become known to the trial jury, and prejudice his case when it comes before them" [5] . The case does not lay down a rule that the publication in local newspapers of a prisoner's prior convictions necessarily imperils his subsequent conviction by a jury from the locality (R. v. Armstrong [6] ) and it may be considered to go too far, but, if so, that only lends point to it as an illustration of the powerful influence of the principle. This perhaps is also true of the decision of the Divisional Court in Reg. v. Barry Justices; Ex parte Kashim [7] , where, in stating the reasons for granting a certiorari to quash a conviction by magistrates who had called the clerk into their room, Lord Goddard C.J. said: "The applicant has previous convictions in courts in which this very clerk has sat as clerk. I do not impute to the clerk any misconduct in the justices' room, but it is important to bear in mind that justice must not only be done but must be manifestly seen to be done. If it appears that there has been an opportunity for information to be given to the justices apart from that proved in open court, doubts may arise whether the trial has been fair" [1] : cf. Hunter v. Joseph [2] .

[15]

In England the dilemma has been fully recognised in which magistrates are placed when called upon to say whether a man who may or may not have a criminal record should be dealt with not on indictment but summarily by a court with a more limited power of punishment and the dilemma has received the repeated attention of the courts and of the legislature. It is worth while noting what has been done, particularly in as much as the early history of the legislation has a direct bearing upon that of the Victorian provision. It is enough to begin with the Criminal Justice Act 1855 Imp., 18 & 19 Vict. c. 126, s. 1. That section enabled justices of the peace to deal summarily with a charge of simple larceny of property worth not more than five shillings or an attempt to commit larceny from the person or simple larceny. The maximum punishment they could impose was three months' imprisonment. A proviso enacted that if it appeared to such justices that the offence was one which, owing to a previous conviction of the person charged, is punishable by law with transportation or penal servitude or if such justices be of opinion that the charge is from any other circumstances fit to be made the subject of prosecution by indictment rather than to be disposed of summarily the justices should proceed as for an indictable offence. In this provision the reference to the previous conviction which would lead to transportation or penal servitude is necessitated by 16 & 17 Vict. c. 99, to which reference has already been made. It is important to notice that the charge itself must, or at least ought, to contain the statement of the previous conviction and consequently the proviso does not require the magistrates to look outside the proceedings to discover whether there had been a previous conviction of felony. No case has been found construing the word "circumstances" in the proviso to s. 1 of 18 & 19 Vict. c. 126 as enabling or requiring magistrates to look outside the charge and the proceedings thereon and inquire into the record of the defendant. But it is not clear that the Victorian provision owes its inspiration to that precise section. An Act of 1847, 10 & 11 Vict. c. 82, dealt with juvenile offenders and s. 1 provided with some elaboration for the summary disposal of charges of larceny and the like against persons not more than fourteen years of age. It contained a proviso which said that if the justices should be of opinion before the person charged made his defence "that the charge is from any circumstance a fit subject for prosecution by indictment" they should deal with it as an indictable offence. This was substantially transcribed in 1850 as 14 Vict. No. 2 of New South Wales and extended in 1853 by 17 Vict. No. 2 of Victoria, which perhaps followed 13 & 14 Vict. c. 37, to adults charged with the like offences if the property involved was not more than two pounds in value. The consolidating Criminal Law and Practice Statute 1864, No. 233, s. 64, re-enacted these provisions, though conceivably the draftsman may have used s. 1 of 18 & 19 Vict. c. 126 as his model. The subsequent history of the Victorian provision will be found in s. 67 of the Crimes Act 1890, s. 72 of the Crimes Act 1915 and s. 72 of the Crimes Act 1928 replaced by the version contained in s. 8 of the Crimes Act 1949 (No. 5379) which is the provision now in question.

[16]

In England the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49) repealed the previous legislation already referred to and replaced it by more modern provisions contained in ss. 11 to 14 and the first schedule. By s. 12, which deals with the case of an adult who consents to a summary hearing, the power to deal summarily with the offence is clothed with a discretion which specifically requires the magistrates to have regard to the character and antecedents of the person charged, the nature of the offence and all the circumstances of the case. This caused some difficulties. When magistrates decided to proceed summarily and subsequently in the course of the hearing discovered that because of the seriousness of the case or because the defendant's character and antecedents were such that they would judge it better to commit him for trial, could they change their minds and do so? In R. v. Hertfordshire Justices [1] it was decided that they could. Avory J. put his decision on the very ground that they could not inquire into the defendant's character and antecedents before they embarked on the summary hearing. His Lordship clearly felt that it was impossible to treat the language of the provision as sufficient to authorise the tribunal passing on the guilt or innocence of the defendant to inquire first into his character and antecedents. Avory J. said: "It is said" (scil. by the defendant) "that by reason of what took place before the justices the offence ceased to be an indictable offence, and s. 12 of the Summary Jurisdiction Act 1879, is relied on in support of that contention. Probably the most favourable way of putting the argument for the defendant is to say that, as soon as the justices have decided, with the consent of the person charged, to deal summarily with the case, he acquires a right to receive a sentence not exceeding the limit imposed by s. 12, that is, imprisonment with hard labour for a term of three months. I do not think the argument is sound. To give effect to it would produce an impossible and unworkable state of things in Courts of summary jurisdiction. The justices are only to deal summarily with the indictable offences specified in the first schedule to the Act "if they think it expedient so to do," and they are to have regard "to the character and antecedents of the person charged, the nature of the offence, and all the circumstances of the case." It would obviously be most improper for the justices to inquire into the character and antecedents of the person charged until, after having heard all the evidence, they have determined to convict him; if they did do so, and then proceeded to convict, the defendant could come to this Court and get the conviction quashed on the ground that the justices had wrongly admitted evidence as to character before conviction. But before deciding to commit a defendant for trial the justices must inquire into his character and antecedents " [1] .

[18]

In the consolidated Criminal Justice Act 1925, s. 24 (1), the discretion of the magistrates was redefined as follows: - " the court, if it thinks it expedient so to do, having regard to any representation made in presence of the accused by or on behalf of the prosecutor, the character and antecedents of the accused, the nature of the offence, the absence of circumstances which would render the offence one of a grave or serious character and all the other circumstances of the case (including the adequacy of the punishment which a court of summary jurisdiction has power to inflict), and if the accused, when informed by the court of his right to be tried by a jury, consents to be dealt with summarily may" etc. Under this provision the magistrates, perhaps guided by the foregoing dictum of Avory J., having decided to hear a charge summarily, listened to the evidence, announced their finding that the defendant was guilty of the charge and then upon hearing his record changed their minds and committed him for trial. On his trial he was convicted but the Court of Criminal Appeal upheld a plea on his part of autrefois convict. In R. v. Sheridan [2] , Humphreys J., delivering the judgment of the court, said: - "In our opinion the present is a case where the justices have proceeded to adjudicate by convicting the defendant, and accordingly the plea of autrefois convict was established. Some comment was made in the course of the argument upon the dicta of Avory J. in the Hertfordshire Justices Case [1] , as to the right of justices to inquire into the character and antecedents of the person charged before deciding to convict. The language of s. 12 of the Summary Jurisdiction Act 1879, the statute then in force, is somewhat different from that used in s. 24 of the Criminal Justice Act 1925. A consideration of sub-s. I of the latter section makes it plain in our view that justices are now required as a preliminary to any decision as to dealing summarily with an indictable offence to hear and to take into consideration certain matters specified in the section, one of them being the character and antecedents of the accused, to enable them to decide whether they ought to deal with the case summarily. Such a course does not appear to involve any unfairness to the accused. Presumably if the character of the accused as stated to them appears to them to be bad, the justices will refuse to deal with the case summarily, will proceed to take depositions, and, if a prima facie case is proved, will commit the accused for trial; on the other hand, if the character given to the accused is a good one, no harm will be done by the justices having heard that fact stated early in the proceedings" [2] . With this view the legislature does not appear to have been content. By the Criminal Justice Act 1948, s. 79, and 9th schedule, it was provided that the words, "character and antecedents of the accused", in s. 24 of the Act of 1925 should cease to have effect. Section 29 of the Act of 1948 provided in effect that if the defendant was not less than seventeen years of age he might on conviction by the court summarily for an indictable offence be committed to Quarter Sessions for sentence, "if, on obtaining information as to his character and antecedents, the court (of summary jurisdiction) is of opinion that they are such that greater punishment should be inflicted in respect of the offence than the court (of summary jurisdiction) has power to inflict". In R. v. Norfolk Justices; Ex parte Director of Public Prosecutions [3] ; R. v. Middlesex Quarter Sessions; Ex parte Director of Public Prosecutions [4] ; R. v. Grant [5] , R. v. Vallett [6] , and Reg. v. Kent Justices; Ex parte Machin [7] , some difficulties raised by these sections were dealt with, but the decisions throw no light on the question here involved. The provisions have been recast in ss. 18-29 of the Magistrates Courts Act 1952, which by s. 132 and the 6th schedule repeals certain of the material provisions of the 1925 and 1948 Acts. The result is to leave great flexibility in the power of the magistrates who may exercise and reconsider the exercise of their discretion to treat a case summarily. But it is also made clear that only after convicting may they go into the character and antecedents of the defendant (see particularly s. 19 (4) and s. 29).

[22]

The view I have adopted makes it necessary to consider whether the decision of the magistrates refusing to dispose of the charge against the defendant summarily can be reviewed. The jurisdiction given to the Supreme Court by s. 150 of the Justices Act 1928 is a wide one. Its width is in part the result of the definition of the word "order" in s. 4. Section 4 provides that unless inconsistent with the context or subject matter " "order" includes order adjudication decision grant or refusal of any application and also a determination of whatsoever kind made by justices or any court of petty sessions and also any refusal by justices or any court of petty sessions to hear or determine any information or complaint or to entertain any application". Sub-section (1) of s. 150, so far as material, provides that where any person who feels aggrieved by any order of any court of petty sessions or justice shows a prima facie case of error or mistake or that the order ought not to have been made, he may apply for an order to review. Sub-section (4) provides that the expression " "any person who feels aggrieved" includes as well as a defendant any informant to an information charging an indictable offence or one punishable upon summary conviction who is dissatisfied in respect of an order adjudication decision grant or refusal of any application or determination of whatsoever kind relating or incidental to such charge (including a refusal to hear or determine such information or to entertain any application) made given or come to by any justice or justices or any court of petty sessions". I take the expression "as well as a defendant" to be attached like the word "informant" to what follows, that is to say it means a defendant to an information charging etc. who is dissatisfied etc. Both in sub-s. (4) and in the definition of the word "order" the reference most important for present purposes appears to me to be that to the refusal of any application. No doubt the action of the magistrates in adjourning the hearing and remanding the defendant on bail falls within the definition of "order". But the adjournment and remand were directed only in order to enable the defendant to seek to review the decision or conclusion of the magistrates that they would proceed as for an indictable offence. It seems to me impossible to examine the validity of that anterior decision under colour of reviewing the decision to adjourn the hearing and remand the defendant.

[26]

The facts are stated in the judgment of Sholl J. against which the appeal is brought and in the judgment of the Chief Justice. The appellant was charged with an offence which was within s. 72 of the Crimes Act 1949 Vict. Subject to the provisos to this section, the justices had jurisdiction to hear and determine the charge in a summary way. The charge was for stealing a fountain pen valued at twenty pounds. The maximum sentence which the justices could impose for this offence was imprisonment for six months. The term of imprisonment is so limited by s. 72. The first proviso operates, in effect, to oblige the justices to commit the person charged for trial, if they are of opinion that the charge preferred against him is from "any circumstances" fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily. Nothing appears in the evidence given before the justices to make inevitable the committal of the appellant for trial. Presumably he is anxious to avoid this mode of trial on the present charge, because, as he has prior convictions, the court to which he could be committed might, if he should be convicted, upon learning of his bad record, impose a more severe sentence or a sentence less to his liking than imprisonment for six months. For the appellant it was argued that no conviction of the person charged is intended to be included in the words "any circumstances", for the reason that if the justices could be informed that the person charged had a bad record, and they decided nevertheless to proceed with his trial in a summary way, there would be danger that he would not have a fair trial, because of the prejudice that his bad record would be likely to produce in the justices. This argument leaves out the right of the accused to object to a summary trial. However, as stated above the appellant is anxious to have a summary trial without being troubled by his prior convictions, at least until a conviction takes place, if it should, but then, even if the justices take the convictions into account in measuring the term of imprisonment, it could not be as severe as the punishment to which a court to which he might have been committed for trial, has power to impose.

[27]

It is commonplace for a court to take into account whether an offender has or has not been previously convicted when it is considering what sentence to impose upon him, unless the amount of punishment for the crime of which he is convicted before the court is predetermined: see R. v. Geddes [1] . This consideration goes far to destroy the argument of the appellant for narrowing the words "any circumstances" merely to the circumstances of the charge itself. The evidence of these circumstances may not be sufficient to enable the justices to discharge the duty, which the proviso entrusts to them, of deciding the mode of trial. The criterion by which they are directed to act is whether they are of opinion that from "any circumstances" the charge is fit to be prosecuted on indictment rather than to be disposed of summarily. The evidence of the circumstances of the charge by themselves may show that it would not warrant a sentence any more severe than the justices could impose. But, if from other circumstances, it is made to appear that a more severe sentence is warranted - a sentence which a higher court could impose - then the charge answers the description of one fit to be prosecuted on indictment rather than in petty sessions. One of such other circumstances is clearly that the person charged has a bad record. In most cases proof of or reference to the fact that the person charged before the justices had been previously convicted, would be irrelevant to the issue of guilt. Apart from the proviso, the fact could be proved before them only if having tried him summarily and found him guilty they called for particulars of any prior convictions for the purpose of considering what sentence to impose. But, as the justices have, under the proviso, to decide whether to commit the person charged for trial or dispose of the charge summarily, and to do this according to the directions given by the proviso which have been explained, I think that they may receive proof of his previous convictions, if any, for the purpose of carrying out those directions. They might, however, after receiving such proof not be of opinion that the charge is fit to be prosecuted on indictment rather than to be disposed of summarily. This constitutes the strength of the argument for the appellant because the knowledge of the justices that the accused had been previously convicted may tend to his prejudice, and therefore the legislature presumably, so the argument runs, did not intend that a prior conviction should ever be one of the circumstances of which the justices should obtain any knowledge until after conviction, when it would be material on the question of punishment. It may be conceded that every reasonable presumption should be made that it was not the intention of the legislature to subvert the principle of a fair trial. But I think this is not a satisfactory criterion by which to narrow the meaning of the words "any circumstances" so as to exclude from the consideration of the justices the previous convictions of the persons charged. For, as I have endeavoured to show, the circumstance that he has a bad record could very pointedly raise the question whether he could be adequately punished if he was not committed for trial. Sholl J. said: "the protection of the community is involved in the formulation and administration of the criminal law, and one ought not to be astute to exclude by implication from the consideration of the justices circumstances which have an obvious logical relevance from the point of view of the community to the discretionary determination of the question whether a summary trial, with its more limited maximum penalities, is appropriate, or is likely to be appropriate, in a particular case". I think it is right to oppose this consideration to the argument for narrowing by implication the natural scope of the words "any circumstances" in the context of s. 72. It is at least a doubtful assumption that, if the justices learned that the accused had been previously convicted, they neither could nor would any longer deal with him fairly, as it would be presumed until then. If they proceeded to try him summarily, why should it be presumed that they would fail to act judicially - solely on the evidence which is relevant to the issue of guilt upon the charge before them - and that they would deny him a fair trial? I agree substantially with the reasoning which led Sholl J. to his conclusion upon the question of the true construction and application of the first proviso of the section. I cannot find anything in the decisions cited as having a bearing on the question, which shows that the conclusion is wrong.

[29]

The question with which we are concerned on this appeal, which is brought by special leave, arises under ss. 72 and 73 of the Crimes Act 1928 Vict. (as re-enacted by s. 8 of the Crimes Act 1949 Vict.). That section confers on the justices jurisdiction to try summarily certain offences specified in the section which otherwise would have to be prosecuted by proceedings as for an indictable offence. The question is whether the justices, for the purpose of forming an opinion whether the charge should be disposed of summarily, are entitled to take into consideration the past character and antecedents of the accused (including his prior convictions, if any). The crucial words of s. 72 are found in the proviso which is in the following terms: "Provided that if the person charged does not consent or if the justices are of opinion that the charge is from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily, the justices shall instead of summarily adjudicating thereon deal with the case in all respects as if they had no authority finally to hear and determine the same." Section 73 provides that the application for a summary trial may be made by the prosecutor before the hearing of any evidence (other than evidence of the amount or value of the property involved), or it may be made by the prosecutor or the person charged or originate with the justices of their own motion at any time during or immediately after the hearing of the evidence for the prosecution. One of the justices must then state to the accused the substance of the charge against him and then say to him these words or words to the like effect: "Do you consent that the charge against you shall be tried by us or do you desire that it shall be sent for trial by a jury?" If the person charged consents to the charge being summarily tried and determined he is asked how he pleads to the charge and the justices then proceed to deal with the case summarily.

[32]

It is impossible, in my opinion, to give this limited meaning to such wide words as "any circumstances". The principle that the fair trial of an accused person must not in general be prejudiced by evidence of bad character being admitted is fully established. But it has been established in relation to cases where the accused has no option to choose between a summary trial and a trial by a jury and must appear before the particular court the law prescribes. In the present case the accused cannot be tried summarily unless he consents. He cannot be deprived of his right to be tried by a jury and if he prefers a jury no evidence of his past character or antecedents could be admitted except where the criminal law provides for its admission. Section 72 is in a different position. It imposes on the justices the two duties already mentioned. If they find themselves placed in a position where the discharge of these duties may cause them embarrassment, that is the fault of the legislature. The initial duty to form an opinion that the accused should be tried summarily is an important duty and one in which the public interest is involved. The justices need not be embarrassed because, if they fear that they may be prejudiced against the accused, they can refuse to dispose of the charge summarily. In many cases evidence that the accused was of good character might assist them in deciding to hear the charge summarily. And it should not be an impossible task for them to disabuse their minds of any prejudice against an accused person because of his antecedents if they decide to try him summarily. A summary trial under s. 72 does not depend upon the consent of the prosecutor as it does upon the consent of the accused, although the prosecutor would no doubt be entitled to be heard for or against the application if it was initiated by the accused or the justices themselves. Presumably, if the prosecutor objected strongly, the justices might guess that he was doing so because the accused was of bad character, and it would surely be better for the justices to know the truth rather than to make a guess.

[33]

We were referred to the prior history in Victoria of s. 72 and also to the history of the corresponding legislation in the United Kingdom. I shall not refer to this legislation in any detail. This has already been done in the reasons for judgment of Sholl J. in the court below and in the reasons of other members of this Court. I cannot derive any reliable assistance in solving the present problem from carrying out a further investigation. The problem should be solved, in my opinion, by adhering to the cardinal principle that in order to ascertain the intention of the legislature you attribute to the words of a statute their ordinary natural grammatical meaning. The words "any circumstances" cannot, in my opinion, be limited in the manner suggested. In the corresponding legislation in the United Kingdom, the justices were expressly authorised to take into account the past character and antecedents of the accused in deciding whether to grant a summary trial or not. It could not therefore have been thought at Westminster that an accused person, who could only be so tried with his consent, would be prejudiced by the justices having this previous knowledge. In Kenny's Outlines of Criminal Law (1952), p. 464, where this legislation is summarised, it is said (footnote 4): "Such consent is usually given readily, in order to avoid the risk of imprisonment while awaiting trial, and of receiving a severer sentence than it is possible for the petty sessions to inflict." There is a passage in the judgment of Lord Goddard C.J. in Reg. v. Salisbury and Amesbury Justices; Ex parte Greatbatch [1] to the same effect. His Lordship said: "Ever since Reg. v. Cockshott [2] this court has always insisted on the provisions of s. 17, now s. 25, being strictly complied with, for this reason, among others, that according to the decision of Wright J. in that case - and a few other higher authorities on matters relating to statutory law - justices who did not put that question had no jurisdiction to try the case at all. Of course, nearly every accused person who is given the chance of being tried summarily takes it, unless he is charged with being under the influence of drink, when he always goes to quarter sessions if he can and, for some reason, nearly always gets acquitted, but that is the fault of juries and not of the law. In certain cases the justices may not give the accused the chance of being tried summarily, but simply make up their minds that they are going to take depositions and send him for trial" [3] . In R. v. Sheridan [4] , Humphreys J., delivering the judgment of the Court of Criminal Appeal, said: "Such a course does not appear to involve any unfairness to the accused. Presumably if the character of the accused as stated to them appears to them to be bad, the justices will refuse to deal with the case summarily, will proceed to take depositions, and, if a prima facie case is proved, will commit the accused for trial; on the other hand, if the character given to the accused is a good one, no harm will be done by the justices having heard that fact stated early in the proceedings" [5] .

[35]

When a legislature entrusts the exercise of a discretion to some particular person or body it does not fall within the province of any court to attempt to prescribe the particular manner in which that discretion is to be exercised. It can only inquire whether it has been exercised according to law. But courts are often tempted to lay down rigid rules governing its exercise and judicial utterances which give reasons for exercising the discretion in a particular case are often sought to be used for prescribing the manner in which the discretion is to be exercised in every case. But this is not permissible. In Gardner v. Jay [1] Bowen L.J. said: "for my own part I think that when a tribunal is invested by Act of Parliament with a discretion, without any indication in the Act of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act did not fetter the discretion of the judge why should the court do so?" [2] . In Jenkins v. Bushby [3] Kay L.J. said: "Of course, in a question of discretion, authorities are not of much value. No two cases are exactly alike, and even if they were, the Court cannot be bound by a previous decision, to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion" [4] . The second sentence in this passage was cited with approval by Lord Wright in his speech in Evans v. Bartlam [5] . His Lordship added: "A discretion necessarily involves a latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are ascertained" [6] . In Blunt v. Blunt [7] Viscount Simon L.C., referring to the discretion of the court under s. 4 of the Matrimonial Causes Act 1937 to refuse a divorce where the petitioner has been guilty of adultery, said: "It is impossible to lay down strict rules for its exercise, and to attempt to do so would really be to restrict the liberty conferred by the language of the statute" [8] . The principle illustrated by these citations applies, in my opinion, to the discretion under discussion. The justices are not bound, before deciding how they shall exercise their discretion under s. 72, to require or not to require evidence of the accused's character. It is a matter for their discretion whether to do so or not. The meaning of a duty to exercise a discretion in all the circumstances of the case was considered in R. v. Mills [9] and Allcroft v. Lord Bishop of London [10] . In both cases it was submitted that, although these words in the statute conferred a general discretion, they should be limited by construction so as to confer only a particular discretion. In R. v. Mills [9] the question was whether the justices of the county into which an apprentice was to be bound had a general discretion to consider the propriety of the binding or whether their discretion was confined to considering the fitness respectively of the master and the apprentice. Lord Tenterden said: "here they have a general discretion, after enquiring into all the circumstances of the case" [1] . A circumstance that the justices were held to be entitled to take into account so as to afford to the parish of Wivenhoe that protection which they considered themselves bound to give was that the parish ought not to be liable to have paupers from a distance settled on it. In Allcroft's Case [2] the bishop had the power, after considering all the circumstances of the case, to decide whether certain legal proceedings should be taken or not. It was submitted that the only circumstance he could properly take into consideration was whether or not there had been a breach of the Act. The submission was rejected by the House of Lords. Lord Halsbury L.C. said: "I confess I cannot entertain a doubt that the Legislature, when using the language "after considering the whole circumstances of the case," intended to shew that the bishop's jurisdiction was not confined to the mere question whether there had been an infraction of the law. They intended to widen and enlarge the considerations which might weigh on the bishop's mind in determining the question whether the proceedings should go on" [3] . He said: "the inquiry into all the circumstances of the case is one which may justly include considerations of the good to be done or the mischief involved in proceedings which, unless they obtain the bishop's sanction, cannot proceed" [4] . Lord Herschell said: "My Lords, when the statute prescribes that the bishop's opinion is to be formed after considering the whole of the circumstances of the case, I think it must mean that the bishop is to consider all the circumstances which appear to him, honestly exercising his judgment, to bear upon the particular case, and upon the question whether he ought in that case to prevent proceedings being taken. I dissent entirely from the view that it is for the Courts or your Lordships to determine what are the considerations which ought to govern the bishop's opinion. If a dozen persons told to consider all the circumstances of a given case, and to form their opinion thereon, were required to state what considerations they had taken into account, I do not believe that any two of them would precisely agree in their statement" [5] .

[38]

On 5th May 1955 the appellant was charged before the court of petty sessions with larceny. The court was constituted by a stipendiary magistrate (Mr. Downey) and a justice of the peace (Mr. Harvey). The appellant was represented by counsel. Larceny is an indictable offence, and in the ordinary course of things evidence would have been heard, depositions taken, and the appellant either committed for trial before a jury or discharged. Section 72, however, of the Crimes Act 1928 Vict., as re-enacted by s. 8 of the Crimes Act 1949, provides, so far as material, that, where any person is charged in petty sessions with larceny, and the value of the property stolen does not exceed £25, it shall be lawful for the justices to hear and determine the charge in a summary way, and, if the person charged confesses the same, or if the justices after hearing the whole case for the prosecution and for the defence find the charge proved, then they may convict him and commit him to gaol, if the value of the property does not exceed five pounds, for a term of not more than three months, or if that value exceeds five pounds, for a term of not more than six months. If they find the offence not proved, they are to dismiss the charge. There is a proviso that, "if the person charged does not consent, or if the justices are of opinion that the charge is from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily", the justices shall not summarily adjudicate thereon, but shall deal with the charge as a charge of an indictable offence. Section 73 (which also is re-enacted by s. 8 of the Crimes Act 1949) provides that, where the justices propose, either (a) on the application of the prosecutor before the hearing of any evidence on the charge, or (b) on the application of the prosecutor or the person charged or on the justices' own motion at any time during or immediately after the hearing of the evidence for the prosecution, to dispose of the case summarily, the person charged is to be asked whether he consents to the charge being tried summarily or desires that it should be sent for trial by a jury. If he consents to the charge being tried summarily, he is to be asked how he pleads, and the justices are then to proceed to deal with the case summarily. Section 74 (which has been amended by s. 8 of the Crimes Act 1949) has no application to the present case, but it was referred to in argument, and it will be convenient to state its effect here. It provides that, when any person is charged in petty sessions with (inter alia) simple larceny of property which may exceed £25 in value, and the evidence when the case on the part of the prosecution has been completed is in the opinion of the justices sufficient to put him on his trial for the offence charged, if it appears to them a case which may properly be disposed of in a summary way and may be adequately punished by virtue of the powers given by the section, they shall reduce the charge into writing and read it to the person charged and ask him whether he is guilty or not. If he says that he is guilty, they shall convict him and may commit him to gaol for a term of not more than twelve months. They are to inform the person charged, before they ask him to plead, that he is not bound to plead or answer, and that, if he does not plead or answer, or if he pleads not guilty, they will direct him to be tried.

[39]

What happened in the present case after the appellant had been charged in the court of petty sessions may be summarised from the reasons given by the magistrate for adopting the course which is challenged. As soon as the charge had been read, the police prosecutor asked that it be dealt with summarily. The magistrate asked him whether he was able to assure the court that the charge was one which could properly be dealt with summarily. He replied that it was a simple case of shoplifting, and that the amount was under twenty-five pounds. The magistrate said that, unless he could be given an assurance that the case could "in other respects" be dealt with properly in a summary way, the court would not deal with it summarily. What he meant by "in other respects" will appear in a moment. The evidence for the prosecution was then heard, depositions being taken. It appeared to the magistrate that a prima-facie case had been made out against the appellant, and he then read the information to the appellant and addressed him in the words required by s. 45 of the Justices Act 1928 in cases where the charge is of an indictable offence. Before the appellant pleaded, his counsel asked the court to consider further the application that the case should be dealt with summarily, and he joined the police prosecutor in applying that the case should be so dealt with. Discussion followed, in the course of which the magistrate observed that one of the matters which might well have to be considered on such an application was the character and antecedents of the person charged, and he asked counsel whether he was prepared to assure him that his client had no criminal record, or, if he had one, to disclose it to the court. Counsel declined to adopt the course suggested. After further discussion the magistrate announced that the court would "postpone further hearing of this matter, to give defendant an opportunity of testing our view, but, if no step is taken, the matter will be proceeded with as a preliminary examination" - that is to say, the charge would not be dealt with summarily, but would be treated in the ordinary way as a charge of an indictable offence.

[47]

The history of the relevant legislation in England and in Victoria is interesting, and, I think, illuminating. The first English Act which needs to be mentioned is that of 1847 (10 & 11 Vict. c. 82) which dealt only with "juvenile offences". The words used in that Act were: "if such justices shall be of opinion before the person charged shall have made his or her defence that the charge is from any circumstance a fit subject for prosecution by indictment". More general provision was made by an Act of 1855 (18 & 19 Vict. c. 126), s. I of which corresponds to Victorian s. 72, and s. III to Victorian s. 74. In s. I the relevant words are "if it appear to such justices that the offence is one which, owing to a previous conviction of the person charged is punishable by law with transportation or penal servitude, or that the charge is from any other circumstances fit to be made the subject of prosecution by indictment rather than to be disposed of summarily". The Acts of 1847 and 1855 (so far as material) were repealed by the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), which enacted new and somewhat different provisions extending considerably the scope of the summary jurisdiction in respect of indictable offences. Sections 11, 12 and 13 provided respectively for the exercise of the summary jurisdiction in three different classes of case. In ss. 11 and 12 the power to exercise that jurisdiction was given to the justices "if they think it expedient so to do having regard to the character and antecedents of the person charged, the nature of the offence, and all the circumstances of the case ". In s. 13 the jurisdiction was given if the justices are satisfied "that the case is one which, having regard to the character and antecedents of the person charged, the nature of the offence, and all the circumstances of the case, may properly be dealt with summarily, and may be adequately punished by virtue of the powers of this Act." It should be added that s. 14 provided generally, with regard to adults, that the case should not be dealt with summarily if the offence was "one which, owing to a previous conviction on indictment of the person so charged, is punishable by law with penal servitude."

[49]

Before proceeding to consider the Victorian legislation, I point out that under the relevant English legislation the justices were not bound finally to decide whether they would deal summarily with the charge or not until the moment arrived for a decision as to the guilt of the person charged. That is to say, they might proceed to deal with the case summarily, and hear all the evidence, and then, before actually pronouncing a conviction, decide that they will commit for trial. If, of course, they actually pronounced a conviction, that was the end of the matter, and it only remained to pass sentence: if, instead of passing sentence, they then committed for trial, a plea of autrefois convict would be open to the accused in quarter sessions. But at any time up to actual pronouncement of conviction, they might change their minds and commit for trial. This fact suggests that, under the Summary Jurisdiction Act 1879, it might have been held proper for the justices to abstain from inquiry into "character and antecedents" until they had decided to convict, and then to undertake that inquiry before actually convicting. I have tried to find out, but have not been able to ascertain, whether there was any settled or approved practice in the matter. We find, however, Dr. Pendleton Howard in his book Criminal Justice in England (1931), writing: - "Some courts attempt to get around the difficulty by asking the police officer at the outset whether there is any reason why the case should not be dealt with summarily. The officer, having in mind the "character and antecedents" of the accused, replies simply "Yes" or "No", and the magistrate is usually governed accordingly." This may have been a sensible enough escape from an embarrassment which was obviously felt, but it left a great deal to the police officer. Some twenty years earlier Avory J. in R. v. Hertfordshire Justices [1] , had said: - "It would obviously be most improper for the justices to inquire into the character and antecedents of the person charged until after having heard all the evidence, they have determined to convict him; if they did do so, and then proceeded to convict, the defendant could come to this Court and get the conviction quashed on the ground that the justices had wrongly admitted evidence as to character before conviction" [2] . This dictum was referred to by Humphreys J., speaking for the Court of Criminal Appeal, in R. v. Sheridan [1] . At that time the relevant legislation was contained in the Criminal Justice Act 1925. Humphreys J. said: - "Some comment was made in the course of the argument upon the dicta of Avory J. in the Hertfordshire Justices Case [2] , as to the right of justices to inquire into the character and antecedents of the person charged before deciding to convict. The language of s. 12 of the Summary Jurisdiction Act 1879, the statute then in force, is somewhat different from that used in s. 24 of the Criminal Justice Act 1925. A consideration of sub-s. (1) of the latter section makes it plain in our view that justices are now required as a preliminary to any decision as to dealing summarily with an indictable offence to hear and to take into consideration certain matters specified in the section, one of them being the character and antecedents of the accused, to enable them to decide whether they ought to deal with the case summarily" [3] . This comment is itself open to two comments. Firstly, it does not suggest that the dictum of Avory J. was wrong, though I find some difficulty in distinguishing between the two statutory provisions which are contrasted. Secondly, it omits to take into account (although it was the whole point in R. v. Hertfordshire Justices [4] , which was held to have been correctly decided) the fact that the "decision", to which the inquiry into character was "a preliminary", need not be finally made until after a decision that there ought to be a conviction has been reached. In any case the observation of Avory J. seems to me very significant in relation to the suggestion that the question of character should be a "preliminary" question in a criminal proceeding. It seems clear that the magistrate in this case felt pressed by the same view. And I do not think that he would be likely to find much comfort in the concluding words of the judgment of Humphreys J. in R. v. Sheridan [5] , which were repeated by Lord Goddard L.C.J. in R. v. Sampson [6] . He might perhaps be more impressed by what was said by Hodges J. in Teese v. Revill [7] . In that case, in which the justices had said that their minds had not been affected by evidence of bad character and prior convictions, which had been wrongly admitted, his Honour said: "It is a difficult thing for any man - I can say it from personal knowledge - to say how much he is affected by facts that come to his knowledge in that way, although he may feel it is not legitimate evidence" [8] .

[63]

But let it be assumed that the rule excluding prior convictions from proof in the course of the case for the prosecution would provide, if it were an absolute rule, a ground for treating the expression "any circumstances" as not including prior convictions of the person charged. Should the same result be considered to follow when it is recognised that the rule is not absolute? Whatever its rationale (as to which some remarks in R. v. Sims [1] may be noted), the rule is subject at least to the qualification that if the person charged endeavours to establish a good character for himself, even if only by cross-examining the witnesses for the prosecution, the prosecution is at liberty, in most cases, to give proof of his previous convictions: R. v. Redd [2] . See also MacDonald v. The King [3] and an article by Professor Julius Stone [4] . If prior convictions, proved during the prosecution's case in accordance with this or any other qualification to the general rule, are to be understood as excluded from the circumstances described in s. 72 as "any", it must be because, unless convictions are always excluded, even when rightly before the justices, the section would necessitate an inquiry into the existence of prior convictions in every case, and so contradict the rule completely. In my opinion the answer is that s. 72 takes the circumstances known to the justices exactly as it finds them at the time when the decision as to the appropriate mode of prosecution comes to be made, neither prescribing a separate investigation of facts nor interfering in the least with the principles which up to that time have applied to the conduct of the proceedings. Its meaning seems to me to be that the justices are to take account of all those circumstances in the material before them which are in any way relevant to the choice of procedure, having regard to every aspect of the prosecution of the charge, including the imposition of appropriate punishment in the event of a conviction.

[67]

In the present case the stipendiary magistrate asked a question on the topic. He was fully alive to the general rule and was anxious to give the benefit of it to the person charged. On the other hand he obviously felt that if the charge should be found proved and the person charged had prior convictions, the interests of justice might not be fully served by the comparatively short term of imprisonment which was all that could be imposed at a summary trial. He used a form of words which he evidently hoped would observe the rule and at the same time would enable a proper choice of procedure to be made. He asked counsel for the person charged whether he was prepared either to give an assurance that his client had no criminal record, or, if he had a record, to disclose it. Though this question did not inquire directly whether the client had a record or not, it placed counsel in the position of either disclosing the client's record or giving a clear indication by silence that he had a record the disclosure of which would or might be to his disadvantage. For that reason the question, though put with a desire to observe the rule, was in substance an infringement of it. Counsel declined to make either of the statements which the question invited, and the incident as a whole, if it had occurred in the course of a trial which resulted in a conviction, would clearly have provided a sufficient ground for setting the conviction aside. That was enough to raise at once the question whether the justices ought to refrain from proceeding further with the case. But there was another circumstance also which made that question one of immediate importance, namely that the honorary justice had learned in other proceedings of prior convictions of the person charged, and had communicated his information to his colleague. In some circumstances the proper view would doubtless have been that they were in such a position of embarrassment that they ought to proceed no further, and should leave the whole case, including the selection of the appropriate form of proceeding, to be dealt with by other justices. But if this had been so, the reason would have been that since they could not properly undertake to try the charge summarily themselves, and had no power to direct a summary trial before other justices, they were not in a position to make the choice between the two possible kinds of proceedings which s. 72 contemplates.