Mitchell v Barker [1918] HCA 13

High Court of Australia|1918-07-01

ON APPEAL FROM A SPECIAL MAGISTRATE OF THE NORTHERN TERRITORY.

Territory - Special Magistrate - Jurisdiction - Summary conviction - $f, ©. ov A. fence against laws of Commonwealth - Appeal to High Court - The Constitution 918,

| & 64 Viel. c. 12), secs. 73, 122 - Judiciary Act 1903-1915 (No. 6 of 1903 - - - 0. 4 of 1915), sec. 68 (2) - Northern Territory Acceptance Act 1910 (No. 20 MELBouRNE, 1910), secs. 7, 8 - Northern Territory (Administration) Act 1910 (No. 27 of March 15. 1910), secs. 5, 12 - War Precautions Regulations 1915 (Statutory Rules 1915, *

No. 130; Statutory Rules 1916, No. 282), reg. 46 (b)- Gagan

Po 'The jurisdiction which, before the Northern Territory Acceptance Act 1910 Rich 43- passed, a Special Magistrate of South Australia had under sec. 68 (2)

'Territory, was renewed both as to subject matter and locality by see. 8 of the Northern Territory Acceptance Act 1910.

Held, therefore, that a Special Magistrate of the Northern Territory had jurisdiction to entertain and determine a complaint for an offence against he War Precautions Regulations 1915 committed in the Territory.

ith September 1917, Charles Mitchell was charged under the Precautions Regulations 1915, on the information of Eli Barker,

for that he did unlawfully personate a person to whom a pass ha been duly issued to enter on board a ship then moored alongsid the Railway Pier at Darwin. He was convicted and fined £10, and in default was ordered to be imprisoned for two months.

On 18th October 1917, on motion by the defendant, who desii to appeal to the High Court from the conviction, the High Cow ordered that notice of appeal might be served on the Commonwealth Crown Solicitor in Melbourne; and that, so far as the defendant

or his solicitors and the Commonwealth Crown Solicitor could agree as to the time and place of appeal and security to be given, they might agree; and that in default of agreement application 2 notice to the Commonwealth Crown Solicitor might be made to the High Court or a Justice thereof, according to the jurisdiction, for directions; and that nothing contained in the order should bi deemed to affect the rights of the Crown in relation to the convie- tion; and the Court expressly reserved to the Crown its right object to the jurisdiction of the High Court to hear an appeal from: the conviction, and its right to take steps to strike out any notice of appeal given by the defendant. The defendant now, accordingly, appealed to the High Court from the conviction.

Mann, for the respondent. The proper mode of appeal is by a case stated for this Court in the same way as if the appeal were from a Special Magistrate of South Australia to the Supreme Court _ of South Australia. If that is not so, at any rate special leave to appeal must be obtained under sec, 39 of the Judiciary Act. One effect of secs. 7 and 8 of the Northern Territory Acceptance Act 1910 is to continue the operation of the Judiciary Act in the Territory as it existed before the former Act was passed. The result is that the jurisdiction of the then existing Courts in the Territory was continued, that those Courts were thenceforward Courts of the Commonwealth and that the Judiciary Act continued in operation in relation to them just as it did before.

Cleland K.C. The Special Magistrate's Court is a Federal Cowt

ction the High Court has jurisdiction to entertain an appeal from decision. The decision in R. v. Bernasconi (1) does not conflict ith that view, and, if what was said in the judgments in that case s to be taken as a decision that none of the sections in Chap. II]. { the Constitution applies to a Territory of the Commonwealth, hat decision should be reconsidered. The Special Magistrate had jurisdiction to entertain the information. Before the enactment of the Northern Territory Acceptance Act the jurisdiction of a Special

86 (q) ). When the Northern Territory ceased to be part of South tralia and became a Territory of the Commonwealth, sec. 68 of Judiciary Act no longer operated there.

judgment of the Court, which was delivered by Griverirn C..J., follows :- - ;

s appeal, which is from a decision of a Special Magistrate the Northern Territory, is brought on the assumption that his isa Federal Court within the meaning of sec. 73 of the Constitu- m - an assumption which is, at least, open to very great doubt. l R wf Bernasconi (1) this Court gee that the Eee of sections

Magistrate's Court is not a Federal Court, and no appeal to this Court. It may be that a distinction may some day be n between Territories which have and those which have not

tance Act does not do so, while the Riticin Territory (Adminis- on) Act gives an appeal to the Courts of South Australia. On other hand, whether the Court is a Federal Court or not, it is

ithin the meaning of sec. 73 of the Constitution, and under that - C. or A.

quite clear that sec. 8 of the Northern Territory Acceptance Act 1910 - gave it ample jurisdiction to deal with all cases which it could have dealt with before the creation of the Territory, and this appeal, so far as it is based on the ground that the Special Magistrate had

The jurisdiction which the Magistrate exercised was that given by sec. 68 (2) of the Judiciary Act, which provides that "The several Courts of a State exercising jurisdiction with respect to (a) the summary conviction . . . of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere." This tribunal, while the Northern Territory was part of South Australia, had jurisdiction to deal with all offences against the laws of the Commonwealth committed within South Australia. This was a prosecution for an offence against the laws of the Commonwealth committed in the Territory. But Mr. Cleland says that when the Territory ceased to be part of South Australia these words were no longer applicable. The jurisdiction conferred was a jurisdiction both as to subject matter and as to locality. So far as the jurisdiction as to subject matter is concerned it is not affected by the change in its source, and so far as regards locality the jurisdiction was not diminished by the change in the political status of the Territory. The old jurisdiction, both as to locality and as to subject matter, was renewed by sec. 8 of the Northern Territory Acceptance Act. So that either this Court has no juris- diction to entertain the appeal or the Magistrate had jurisdiction to deal with the charge. As to the merits there are none, and the conviction was quite right. It would therefore be idle to adjourn this appeal for further argument before a Full Bench on the abstract question whether the Magistrate's Court was a Federal Court, for, quacumque vid, the Magistrate had jurisdiction, and the appeal must be discharged.

As to the penalty, that is a matter as to which we are not in a position to say whether it was or was not too high. But if there

ground for an appeal to the mercy of the Government, that H. C. or A.

is still open. The only order we can make is to dismiss the 1®!® with costs. MrrcweLe Barwer.

itor for the appellant, F. Kelly, Adelaide (for R. I. D. , Darwin), by McCay & Thwaites.

licitor for the respondent, Gordon H. Castle, Crown Solicitor for he Commonwealth.

Bais {HIGH COURT OF AUSTRALTA.] < ' % E . APPELLANT ; AND ACTING FEDERAL COMMISSIONER OF } = 5 eee Ye ONDENT

Tax - Assessment - Dividends from company - Payment out of accumulated H.C. oF A. 7 -Amount carried forward to credit of profit and loss account - Income 1918. Assessment Act 1915-1916 (No. 34 of 1915 - No. 39 of 1916), sec. 14 (b). - -

: Mrxpourne, 'The term " profit and loss account " in the last proviso to sec. 14 (b) of the Mak le 'Tax Assessment Act 1915-1916 means an account showing the transae- 21,

'tions of a company during a given period in which are entered on one side amounts received, and on the other the expenditure incurred during the same iui \Suny,

" period in producing those receipts. 'The difference shows the profit or loss for Powers and

| loss account," within the meaning of that proviso, when a balance of 'profit of any period is grouped with the receipts proper of the next succeeding #2

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Judgment (33 paragraphs)