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[1904] HCA 20
High Court of Australia
1904-07-01
Original judgment source is linked above.
[HIGH COURT OF AUSTRALIA.) MACKAY : ' F s 2 . APPELLANT ;
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Cattle Slaughtering and Diseased Animals and Meat Act (No. 36 of 1902), sec. 15 - H. ©. of A. Fees for inspection of ' cattle" - Meoning of word " cattle" - Sheep and pigs 1904. not included. ra
The word "cattle" in sec. 15 of the Cattle Slaughtering and Diseased S¥PNEYs August 26,
Animals and Meat Act, 1902 (a) does not include sheep and pigs. 29, Judgment of the Supreme Court (1904) 4 8.R. (N.S.W.), 272, reversed. Griffith, C.J.,
Dieta of Innes, J., in Hx parte Hop Sing, 4 N.S.W. W.N., 59, and Stephen, Barton and, in Wright v. Commissioner for Railways, 12 N.S.W. 8.C.R., 5, dissented et from, 2B. v. Charley Mong, 4 N.8.W. W.N., 103, not followed.
Appr from a decision of the Supreme Court of New South Wales.
The appellant, who was the keeper of a house, licensed under the Act No. 36 of 1902, for the slaughtering of cattle, was sued 4 by the respondent, A. Davies, an inspector under the same Act, for £35 19s. 8d., "being moneys payable under and in pursuance of see. 15 of the Cattle Slaughtering and Diseased Animals and
(a) 15. Every inspector may demand and receive the sum of three pence for oy head of cattle or skin inspected by him under this Act, to be paid by the er of any licensed house or place in or at which such inspection is made, and be recovered before any justice.
H.C. oF A. at 1d. per head. It was admitted that demand had been made by
the inspector, and that the slanghter-house was not within three miles of the city of Sydney. The magistrate ordered the appel- lant to pay the amount claimed.
The appellant obtained a Rule Nisi for a prohibition against the respondent and the magistrate on the following grounds : - - (1) That the complaint, particulars and evidence showed that charges were sued for for the inspection of sheep and pigs, or of the skins thereof, under Division 1 of Part II. of the Cattle - Slaughtering and Diseased Animals and Meat Act, 1902, whereas such charges were not legally recoverable under the said Act; (2) That the evidence showed that the full amount of the charges authorized by see. 15 of the said Act had not been made.
On 5th May the Full Court discharged the Rule Nisi with costs, (1904) 4 S.R. (N.S.W), 272.
Dr. Cullen, (with him Mocatta), for the appellant. The word "cattle" in see. 15 refers only to horned cattle, and does not include pigs and sheep. Division 1, of Part II.,in which the section occurs, is taken from the Act 5 Wm. IV. No. 1, and was never intended to - apply to any but horned cattle. There have been many Acts - passed dealing with the slaughtering of cattle, and, wherever the - word was intended to have a wider meaning, the legislature made that clear by defining the term. The greater number of these Acts are consolidated by No. 36 of 1902, which is divided into - parts, each part being devoted to one particular branch of the control of cattle slaughtering; Part I, Preliminary; Part IL, vention of theft, and Division 2, the prevention of nuisances and preservation of health; and Parts IIL. and IV,
the prevention of the spread of disease amongst animals used for human food. In Division 1 of Part II. there is no definition of " cattle," and consequently it should, if possible, be there construed in its ordinary sense, ".¢., bovine animals only. Any other con- struction would be inconsistent with the nature of the provisions and the language used. Sec. 15 itself, by imposing a uniform charge in respect of the "cattle" inspected, seems to indicate that such different animals as sheep and pigs were not to be included. The respondent, in making the charge, seems to have
In Division 2 of Part II. " cattle" is defined as including sheep, lambs, pigs, goats and bovine cattle, for the purposes of that Division. Part III. uses the word "animal," and defines it to 'mean horses, cattle, sheep, pigs, calves, and lambs. The word 'cattle" there is exclusive of sheep and pigs, and in Part IV. "animal" means every animal used for the food of man. The natural inference is that, when the word "cattle" is used simply, without any definition, it is, unless the context otherwise requires, 'to be construed in the ordinary sense, to mean horned cattle only. 'The word " cattle " in this section has never till now been suggested to include sheep and pigs. Kx parte Hop Sing, 4 (N.S.W.) W.N., 59, which was relied on by the respondent in the Court Delow, is not in point. Innes, J., there said that he thought that "cattle" in see. 1 of 5 Wm. IV. No. 1 included pigs, but he did decide it. Even if he had, it would not follow that in this section the word should have the same meaning. Sec. 1 was of a group of sections in that Act which dealt with nuisance- vention, and were taken out of that Act, and re-enacted by 57 Vict. No. 21. They are now in Division 2 of Part II. of the Cor olidating Act, and must be construed in the light of the definition in sec. 18. The remaining sections of 5 Wm. IV. No. 1 ave found in Division 1, and no inference can be drawn that the word "cattle," when used in them, should have the same mean- ing as when used in other sections of the original Act which
e now ina different Division. R. v. Charley Mong, 4 (N.S.W.) W.N., 103, did not carry the matter any further. There was no argument on either side, and the Court merely followed Ex parte Hop Sing, supposing that the matter had been there decided. he statement by Stephen, C.J., in Wright v. Commissioner for Railways, 12 (N.S.W.) S.C.R., 5, that in 5 Wm. IV. No. 1 the legislature intended the word "cattle" to include "sheep" was iter dictum. 'The question was only as to the meaning of the word in see. 19 of the Government Railways Act, 22 Vict. No. 19, object of which was the prevention of trespass, and the pro- ion of stock in general from injury by trains. He used the argument that, apart from definitions, the meaning of the word is
seen this objection, for he makes a reduced charge for the smaller H- ©. oF 4.
H. ©. oF A. controlled by the purpose of the Act or Division of an Actin which _
the word oceurs, if the Act or Division is obviously direeted to one purpose. But he omitted to notice that, if the objects of the Act - or part are various, no inference can be drawn that the meaning ; of the word in one section is the same as when used in another. -
[Grivrira, C.J. - The main argument which you have to answer - is that, primd facie, the word "cattle," when used in different places in one Aet, means the same thing all through, and that this. 3 is a consolidating Act, re-enacting 5 Wm. IV. No. 1, in which the | word has been held in certain sections to have the wider meaning. | :
The answer is that the legislature has prevented this inference being drawn as to sec. 15, by separating it from the sections in which the word has been judicially interpreted in the wider sense, placing it in a Division where there is no definition, and where - all the other sections are directed to one purpose and use the word in the limited meaning, and placing the sections which have been construed in a Division where there is a definition giving tl wider meaning, and where all the sections are directed to anoth purpose, the prevention of nuisances.
3 of 18 Viet. No. 42, which prohibits sheep calves and pigs" within the city of
Sydney and suburbs, except in a licensed slaughter-house, would | be quite unnecessary if 5 Wm. IV. No. 1 had forbidden it. See. 15 imposes
a new burden upon the subject, and should construed strictly in favour of the subject. "Cattle" was he to usually mean the bovine genus only; Ee parte Dutfield, (N.S.W.) W.N., 113. Ina plea the word was held to have colloquial meaning, bovine animals; Brasil y. Fletcher 15 (N.S.W.)
Kelynack (Robson with him), for the respondent. It may be th when the Act 5 Wm. IV. No. 1 was passed, the legislature thoug] the charge of threepence per head a reasonable one under the cit- cumstances. The expenses of inspection would be heavy, owing to the great distances that had to be travelled by the inspectors. natural meaning of the word at that date included sheep and pigs
_ this particular case the word was used in the narrower sense. There are decisions of the Supreme Court, dating back to 1873, that the word " cattle,' where used simply in a Statute, is to be construed in the wider sense; Ba purte Hop Sing (supra), and R. v. Charley Mong (supra). Apart from the dictionary meaning, the fact that in the older Acts the legislature defined the term as having the wider sense shows that they regarded that as a natural meaning, and only defined it for the purpose of precision, for otherwise they would have particularised the different classes, and not called them cattle at all. Primd facie the word, where used in the older Acts, should be read in the wider sense. One of the objects of the first Act dealing with this subject, 11 Geo. TY. No. 4, was the prevention of depredations upon cattle. That would be as desirable an object in the case of sheep and pigs as in the case of horned cattle. This Act was continued from time to time, and finally embodied in, and superseded by, 5 Wm IV. No. 1, which is the origin of sec. 15. In England the word "cattle" in sec. 1 of 9 Geo. I. ¢. 22, which dealt with the unlawful and malicious killing, maiming, or wounding of cattle, was held _ to inelude pigs; R. v. Chapple, R. & R., 77. In Patey's Case, 2
_ Inconstruing see. 15, the Court will look at the purpose of the _ Act, and, if the limiting of the meaning of the words gives results which it is unreasonable to suppose that the legislature intended, it will not adopt that meaning ; Hardcastle on Interpretation of Statutes, citing R. v. Liverpool Justices, 11 Q.B.D., 649. It would be unreasonable to suppose that the legislature made all these provisions for the prevention of stealing horned cattle, and left sheep and pigs unprovided for.
There is nothing in the words themselves to show that the restricted meaning was intended. The difficulties as to keeping the skins, and noting the colour, brands, &c., are more apparent
all domestic animals. The onus is on the appellant to show that in H. C, or A.
than real. These provisions bring terms into conjunction which are to be applied distributively, wherever applicable. For instance, the skin of a pig might not be kept, but its colour, sex, and age could be noted. But the difficulty of applying a provision is no argument that the legislation did not intend it to apply. The consolidation was not intended to amend, but to re-enact. If itis necessary to construe the word in some sections in the narrow sense, the Court will do so, but, where the context allows it, it is submitted that the wider meaning should be given. [He referred also to the definitions of "cattle" in the Acts, 9 Geo. IV. No. 11, 14 Viet. No. 14, 17 Vict. No. 3, and 16 Vict. No. 23, and to 11 Geo. IV. No. 4, 4 Wm. IV. No. 7, and 14 Vict. No. 36.)
GrirritH, C.J. 'This case has been very fully and ably argued. and all the authorities have been carefully discussed. Nothing, therefore, would be gained by our taking time for consideration, The question arises upon the construction of see. 15 of the Cattle Slaughtering and Diseased Animals and Meat Act, 1902, entitled "An Act to consolidate the enactments relating to the slaughtering of cattle, the destruction of animals dying of disease, and diseased animals and meat." The Act deals with these subjects in three groups of sections. The section in question is ion 1 of Part IL, which deals with cattle ion 1 contains general provisions on the to 17 inclusive. Division 2 of the same Part contains provisions for the local control of cattle slaughtering. "inspector" in sec. 3, proceeds, in sec. 4, to authorize councils to appoint inspectors of slaughter-houses and of cattle, prescribes the method of appointing them, and enumer- ates their duties. Then sec. 5 requires "every person intending to slaughter any cattle in any city, town, district, or municipality, in which an inspector has been appointed" to give notice in writing to such inspector of his intention, otherwise he will be liable to a penalty. The section also provides that, whenever cattle have been slaughtered in any such place without having been
previously inspected, notice shall be given of the fact to the in- spector, and the skins kept or preserved for three days and produced to the inspector upon demand, under a penalty of five pounds. The inspector is to keep a book in which he must register full particulars of all cattle slaughtered in his district, and to produce the book to the Court of Quarter Sessions or to the justices of his district when required, and to make a weekly return tothe justices of the numbers slaughtered. By see. 6 every keeper of a licensed house or place for slaughtering cattle, in a dis where there is no inspector, must keep a book and enter in it _ particulars of all cattle slaughtered at the place, and make a
slaughtered in violation of any law in foree relating to slaughter or the slaughtering of cattle," he may issue a search warrant, Then comes the provision in question in section 15, [His Honor read the section («)]. Section 16 makes it an offence punish-
able by fine to discharge any firearm in any road, street, or market place, or town, "under the pretence of killing or maiming any cattle," and see. 17 provides that a licence shall become null and void after the conviction of the holder for an offence against Division 1 of Part IT.
The question for our determination is whether the word "cattle," as used in sec. 15, is to be construed in the limited sense as inelnd- ing only horned cattle, as distinguished from sheep and small cattle, or in the wider or generic sense, including practically all the four-footed animals dealt with in the various parts of the Act. The very next section, 18, in Division 2, provides that in that Division the term " cattle" shall include " sheep, lambs, pigs, and goats and bovine cattle"; and sec. 33, in Part II. of the Act, defines "animal" in that part as including " horses, cattle, sheep, pigs, calves and lambs." In this very Act, therefore, there are several variations of the sense in which the word " cattle" is used by the legislatur: different from hor
In Part IIL it is used as meaning something s, sheep, pigs, calves and lambs, because the word "animal" is defined as including them all. In Division 2 of Part IT. it includes shee cattle. In Division 1 itself, sec. 14 speaks of " sheep, calves, pigs
| or other animals," using the words in contradistinction to the word | " cattle " as used in the same section and in the same part of the | Act. Turning to other sections, we find that the cattle in respect | of which pro {
sion is made are cattle which not only must not be slaughtered without inspection, but whose skins must be preserved and shown to the inspector under a penalty of £5. It was sug- gested that that provision applies just as well to sheep and pigs as tohorned cattle. But it was pointed out that it would be a very singular provision that persons who slaughtered pigs should be _ obliged to skin them and keep the skins. Primd facie one would say that that section was only intended to apply to animals the skins of which are usually separated from the careass and pre- served when the animals are slaughtered. Other sections there - ave which plainly apply only to animals such as it is possible and - usual to brand upon the skin, inasmuch as they prohibit the cutting out or defacing of the brands upon the skins of the cattle slaughtered. Then we find that in see. 15 a uniform fee of three-
the word "cattle" is to be construed in its wider sense, the result will be that, for all these different kinds of animals, bullocks, calves, lambs, sheep, pigs, and even sucking pigs, a uniform fee of -threepence per head is to be charged, which it is very improbable that the legislature intended. Under these circumstances, if we looked simply at this part of the Act, we should have no hesitation saying that it is manifest from the whole purview and scheme _ of its provisions, that they were intended to apply only to horned cattle. But we are asked to reject that construction for two reasons. One reason, which seems to have greatly impressed the learned Judges of the Supreme Court, was that other provisions of he Act might very reasonably have been made to apply to sheep and pigs, and that it was imputing want of intelligence to the legis- ature to assume that it had not included those animals as well as orned cattle. I confess that I fail to appreciate the force of that soning. The fact that a provision might have been made to com- hend all kinds of cattle in the wider sense of the word is no son for coming to the conclusion that the legislature intended 'ittodoso, For instance, it is no doubt just as dangerous to shoot sheep and pigs in the streets as to shoot bullocks; but if the legis- ature has not thought it proper to provide against the former danger, we cannot for that reason construe the provisions dealing ith the latter so as to extend them to the former. 'The other argument used for the respondent was that this is a consolidating Act, that these sections are a mere reproduction of the Act, 5 Wm. IV. No. 1, and that the words of that Act had received judicial interpretation, in which the construction now contended for was given to them. No doubt it is a genera) rule construction that, when particular words in a Statute have eived judicial interpretation, and the Statute is subsequently
actment should be construed in the sense previously attributed to them by the judiciary. But I think that rule only applies to ses of considered decisions upon the meaning of particular words aStatute. Now the question whether the prohibition in that Act nst unlicensed slaughtering extended to sheep and pigs never s to have been really decided by the Supreme Court. The first
'pence per head is to be charged for all cattle slaughtered. Now, if H. ©. oF a
reported case in which the point was mentioned was before Zimes, - J., in 1887, Bx parte Hop Sing, 4 W.N.(N.S.W.), 59. He did not, - however, decide the point expre: He made some observations on the subject, and after remarking that slaughtering pigs - might be as great a nuisance as slaughtering cattle, said he did not - see why they should not be included in the term "cattle." He - referred to two cases decided in England, in one of which, R. v. Chapple, it was held by all the Judges that the word " cattle" in - acertain Statute included pigs, and in the other, R. v. Whitney, it was held to include "asses." But he did not refer to the - Statutes that were under consideration in those cases, or he would | have seen that from the context it followed that the wider - meaning must be given to the word "cattle" as there used. He - then went on to say that the facts of the case did not bring the - defendant within the words "cause to be slaughtered." There - was, therefore, no necessity for him to decide what was the proper - construction of the word "cattle." In the later case, R. v. Charley ' Mong, 4 W.N. (N.S.W.), 163, the same point was submitted to the Court, whether pigs were included in the meaning of the word "cattle" in sec. 1 of 5 Wm. IV. No. 1. The case was not argued on either side, but the learned Judges thought that Znnes, J., in the previous case, had decided that pigs were "cattle." But, | according to the report, he had not so decided. However, the - Court appeared to think that he had, and they said that the % justices ought to have followed his decision. The point was not argued, and other matters were not put to them which might have ~ influenced their decision; for instance, the point of view of the: taxpayer, who would have to pay threepence per head onall small animals slaughtered in his establishment. The exact point under that section, i.e. whether the word "cattle" includes sheep and pigs, has therefore never been solemnly decided. Another case, Wright v. The Commissioner for Railways, 12 (N.S.W.) S.C.R., 5, was referred to in argument, in which Stephen, C.J., made some observations arising out of the case before him. He remarked: "By 5 Wm. IV. No. 1 (the Cattle Slaughtering Act of 1834), it was enacted that no person should keep a slaughter-house or place for slaughtering 'cattle, within the city, unless he were duly licensed ; and throughout the Act cattle was the only term used, and of it
tatute then under consideration and said that he thought that it the word " cattle" included sheep, adding "as without doubt the word usually bears that construction." But the point now vaised was not before him. The law at that time was that no cattle, sheep or pigs should be slaughtered, except at a licensed Jaughter-house, within the city (13 Vict. No. 42). Apart from actual decisions of the Supreme Court, we should desire to follow dered expressions of opinion, if possible, and to give to the ms of the consolidating Act the construction that has been ven incidentally put upon the Statutes consolidated, if we can do o without disregarding the manifest intention of the legislature. _ Now, the first Act dealing with the subject was passed in 1830, 11 Geo. IV. No. 4. It is important, I think, to read the title and imble of that Act; because it is fair to assume that, whatever the legislature meant then, they meant in 1902, in the Act con- solidating the earlier ones. It is entitled " An Act for regulating the slaughtering of cattle and for preventing the improper driving of the same through the streets of Sydney and for other purposes." It then recites that " it is expedient to establish proper regulations e specting the slaughtering of cattle with the view of checking the predations to which they are now subject and for averting the nger which ensues from the improper driving of cattle through the streets of Sydney." There is little doubt that the word "cattle" was used in the same sense in both parts of that pre- ible, and there can be no doubt what was meant by it in the econd part. The second object was only dealt with in sec. 13, ich provided that no cattle should be driven into the town of sydney north of the cattle market except between the hours of Welve at night and six in the morning, under a penalty of ten illings per head for all cattle so driven. The first section quired that "no person shall keep a slaughter-house or place for slaughtering cattle intended for sale or barter without being lu ly licensed," &c. There are various other provisions in the Act, ery much the same as those contained in Division 1, Part IL. of Act of 1902. That was a temporary Act, and was twice con- tinued in force by short Acts of Parliament. It was superseded y the Act 5 Wm. IV. No. 1, which recites: the title of 11 Geo.
here was no definition whatever." He went on to refer to the H. 0. or A.
IV. No. 4, and the coutinuance of that Act, the date of its expira- tion, and that "it is expedient to continue" and "amend the same." Then it was enacted that, "after the 31st day of August, 1834, no person shall keep a slaughter-house or place for slaughtering cattle intended for sale or barter or for shipping without being duly licensed, and that if after the said 31st day of August, 1834, any person" should slaughter cattle in breach of that provision, he should be liable to a penalty of ten pounds per head of cattle so slaughtered. That was a general Act applying to the whole of the colony. The other sections are substantially the same as those in Division 1, Part II. of the Act of 1902. The only provision for licence is in regard to slaughtering cattle. We are told that it was never at that time thought of by anyone to | charge the fee of threepence for animals other than horned cattle, | that the question never arose whether it was payable in respect of them, and that it was never claimed until quite recently. Many statutes have been passed since that time, dealing with cattle in one way or another. Many of them contain detinitions of the term - in one Act one sense, and, in another, another being given to it. In 1849 the first of these was passed, 13 Vict. No. 42, entitled "An 4 Act to amend the law relating to the licensing of slanghter-houses within the city and suburbs of Sydney and for the prevention of ; other nuisances within the same." (The Act 5 Wm. IV. No. 1 | applied to the whole colony.) The preamble recites the Act 5 Wm. IV. No. 1, and that "in pursuance thereof divers licences have been granted for such purposes for various places in the
City of Sydney," and that "such slaughter-houses and places for slaughtering cattle have become nuisances to the health and comfort of the inhabitants of the said city and it is intended that the same shall be hereafter removed," and that "it is expedient - that in the meantime no new slaughter-house should be licensed within the said city or within the distance " prescribed later on in the Act. It then proceeded to enact that no new licences should be granted to slaughter-houses or places for slaughtering cattle within the city or within a distance of two miles from its limits, and continued liberty to those already existing to carry on the business as before. Now, according to the construction that is sought to be put upon it by the respondent, sec. 1 of 5 Wm. IV.
except at licensed slaughter-houses. This Act was to amend that earlier Act, and it specially provided in sec. 3 that it shall not lawful, after Ist January, 1850, "for any person to slaughter or _ cause to be slaughtered any sheep, calves or pigs in any house or place within the limits of the said city other than in such slaughter- _ houses or places for slaughtering as are now licensed and shall continue to be licensed under the provisions of the" Act 5 Wm. TV. No. 1. But, if the respondent's contention is correct, that was already the law, not only with regard to Sydney but to the whole colony, and yet the legislature apparently thought it neces- "sary to make special provision for Sydney. It is clear that if _ anyone had been asked in 1849 what was the law he would have 'said that sheep and pigs could not be slaughtered in Sydney except in licensed slaughter-houses, but that there was no law dealing with them outside the limits of the city. Apart altogether from the argument that may be based on the provision as to the keeping _ of the skins, here we have express legislative recognition of the act that there was no law in force on the subject as to the smaller animals sometimes included in the term "cattle." The Act 41 Viet. No. 14, passed in 1850, contains a definition of the word, "cattle." In 14 Vict No. 30, which isa similar Act, the word "animal" is used to include horses, bulls, oxen, sheep, pigs, and many other kinds of animals, but the generic word " cattle" is not used, although, on the respondent's contention, that word would have been quite sufficient to include horned cattle, sheep and pigs. The Act 14 Vict. No. 36 defines " cattle " as including sheep, pigs, and 'goats. None of these supply any argument for holding that the word "cattle " includes in its natural meaning other animals than horned or bovine cattle. It will be noticed that in the definitions the word "include " is used, which connotes that the word whose Meaning is being defined is used in the Statute in a sense larger than that which it primarily bears. Reading these Acts to- gether, it appears to me, even more clearly than upon reading sec. 3 of 5 Wm. IV. No. 1 standing by itself, that the word "cattle" 'isthere used in the restricted sense. Against that construction ve have the cases in the Supreme Court that were referred to in gument. What has pressed me more than anything else in the
No. 1 absolutely prohibited the slaughtering of sheep or pigs H.C. oF A.
attach to those cases. I have already indicated what I think is the true construction of the older Acts. But if there were any - doubt about the matter, I think it has been removed by the - legislature itself in the new collocation of the sections dealing - with the various subjects in the Act of 1902. The best that could ; be said for the respondent was that it was doubtful whether in
sec. 13 of the Act of Wm. IV. (sec. 15 of the Act now under con- - sideration), the word "cattle" included sheep and pigs. But when i we find that section and other sections put together in a new > collocation including sec. 14, in which sheep, calves, and pigs are spoken of in contradistinction to cattle, or which is taken from | an Act (15 Vict. No. 13), in which the word "animal" was used to - include all kinds of horned cattle, sheep, and pigs, &e., and we are _ then asked to say whether in the next section the word is to - have the wider meaning, the conclusion is irresistible that, con- - struing sec. 15 in the light of these other sections, the word "cattle" in that section means horned cattle only, and that, -
therefore, the fee of threepence per head can only be charged in
respect of such cattle. q It is not suggested that the case R. v. Charley Mong has ever been acted upon to the extent of charging fees for the slaughtering 7 of sheep and pigs before this particular instance. For these reasons we think that the decision of the learned - Judges of the Supreme Court was erroneous, and that the rule nisi _ for a prohibition should be made absolute with costs. 3
Appeal allowed. Order of the Supreme Court discharging the rule nisi for w prohibition set aside and rule nisi made absolute with costs, so far as the order of the justices relates to charges in respect of sheep and pigs. Respondent to pay the costs of the appeal.
Solicitor, for the respondent, The Crown Solicitor of New South Wales.