McDonnell v Smith [1918] HCA 26

against the Act ; by sub-see. 2, that an offence against the Act may be prose- """qien ya" 'euted either summarily or upon indictment; and by sub-see. gainst the Act shall not be prosecuted summarily without the written consent _ of the Attorney-General or the Minister for Defence, or a person authorized writing by the Attorney-General or the Minister for Defence, and that an offence against the Act shall not be prosecuted upon indictment except in

Held, that the consent required by sub-see. 3A must be obtained before a jon under the section is initiated, that is, before the information is

from the Supreme Court of New South Wales. On 2st December 1917 an information was laid by John Percy onnell against William Henry Smith under reg. 44 of the War

Precautions (Military Service Referendum) Regulations 1917 (Statu- tory Rules 1917, No. 290 - No. 326), complaining that on 13th December 1917 he did at Candelo in the State of New South Wales, at a public meeting then and there being held in relation to the Referendum, wilfully disturb the said meeting. A summons was duly served upon the defendant to appear before a justice or jus- tices on 14th January 1918. He appeared on that date before a Police Magistrate, but the hearing of the summons was adjourned until 11th February 1918, when, on the application of the informant, a further adjournment was granted to 19th February 1918 on the ground that certain documents necessary for the prosecution were not then in the informant's possession. On 19th February 1918

the defendant again appeared before the Magistrate and the matter - came on for hearing, and it then appeared that the consent pre- -

scribed by sec. 6, sub-sec. 3a, of the War Precautions Act 1914-1916 had only been obtained on 14th February 1918. His solicitor moved that the information be dismissed on that ground, but the Magistrate convicted the respondent, and fined him £5 with 6s. costs, in default

two months' hard labour, holding that the consent could be obtained at any time before the hearing. On 10th April 1918 the Supreme Court of New South Wales (Ferguson J.) granted a rule absolute directed to the informant and the Magistrate restraining them from further proceeding upon the conviction: Ex parte Smith (1).

From that decision the informant now, by special leave, appealed to the High Court.

Knox K.C. and H. E. Manning, for the appellant. Under the War Precautions Act it is open to the Crown to take proceedings summarily or by indictment. If the Crown elects co take proceed- ings by indictment, no consent is required before the presentation of the indictment, and the preliminary proceedings, if any, may be taken without any consent. The Justices Act 1902 (N.S.W.) provides that justices shall deal with matters summarily or by indictment. By sec. 80 of that Act, on hearing the parties and taking evidence, the justices are required to determine the whole matter, provided that if it appears to the justices to be a proper

: for indictment they may not proceed further, but must commit accused for trial. Until the close of the prosecutor's case it is sible to say whether the matter is to proceed summarily or by ment. In the case of a preliminary inquiry the consent ribed is unnecessary if eventually the prosecution is to be by y of indictment. That suggests that the consent need not in se be obtained before the hearing.

cu J. The necessity for getting the prescribed consent to a 'tion is a check on irresponsible persons who might heatedly, th from patriotic motives, institute proceedings. The aimed at by sub-sec. 3a is the harassing of people by

netioned by some responsible person? (He referred to Thorpe all (1) ; Beardsley v. Giddings (2); Brooks v. Bagshaw (3) ). wan Durry J. A prosecution begins as soon as the first is taken, and continues until completion. ]

latest moment when consent may be given is immediately the end of the hearing. The Legislature has, in sub-sec. 3a, ed from the usual phrase, " No prosecution shall be instituted hout consent." See Trading with the Enemy Act 1914-1916, ¢.3(6). The issue of a summons is a matter of procedure, and not dicial exercise of jurisdiction (Donohoe v. Chew Ying (1) ). The tion here was to prevent the exercise of any judicial jurisdiction it consent, not to prevent ministerial proceedings ; otherwise pecial Magistrate or a Stipendiary or Police Magistrate would e to issue the summons, for jurisdiction cannot be judicially sed except by a Special Magistrate or a Stipendiary or Police strate (Judiciary Act 1903-1915, sec. 68 (3) ).

et K.C. and Alec Thomson, for the respondent. The pre- d consent not having been given, there was no jurisdiction. consent must be given before the prosecution. The word uted" in sub-sec. 34 cannot be turned into " dealt with." orpe v. Priestnall (1). Laying the information before the

' Magistrate is the commencement of the prosecution. Three persons _

are named who may give consents, and one of them should consider -

Per Curtam. This appeal must be dismissed. The cases - mentioned by Rich J. are apposite. A difficulty in the way of the appellant is that if his argument is to prevail the words " prosecuted summarily " in sub-sec. 3a must be read as being equivalent to "dealt with." The Legislature when it said " prosecuted" did not mean "dealt with." What the Legislature has said means that a prosecution shall not be begun without the prescribed consent, - and the prosecution is begun when the information is laid. The decision of Ferguson J. was right, and the appeal must be dismissed

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth. Solicitor for the respondent, Z. R. Abigail.