Munday v Gill [1930] HCA 20

Munday v Gill [1930] HCA 20 | Case summary | Zoe

it. Aubin's presence in the assembly was proved, and he was convicted by the magistrate, who fined him £5, in default one month's imprisonment with hard labour. The other informations remained for hearing but, instead of each being heard separately, counsel for the defendants consented to the several informations being heard (or "lumped"') together, and they were accordingly so heard. During this hearing the depositions of two police officers, who had given evidence in Aubin's case, were, by consent, read over to them and adhered to. These depositions were then admitted in evidence in the "lumped" cases. Further, the evidence of two wit- nesses, Richard Thomas and Archibald Gilmour Virtue Wood, given in Aubin's case was tendered and, by consent of the defendants' counsel, admitted as evidence. The presence of each accused in the assembly was proved - some for a long period, some-for a short period ; and evidence was also given that some left as soon as they were spoken to by police officers, the disturbance continuing for several hours after their departure. The evidence showed that the accused travelled considerable distances throughout the night to reach the place of meeting, and some of them stated that they had so travelled to attend an aggregate meeting of miners' lodges at Rothbury, which was never held. At the close of the case for the prosecution the magistrate, at the request of the defendants' counsel, stated that the whole of the evidence given in the "lumped" cases was taken 'into consideration in respect of each defendant for the purpose of determining whether there was an unlawful assembly. Nine of the accused then gave evidence; after which counsel for the defence stated that he did not wish to tender any more witnesses, and that "there was no conflict with the evidence of the police in respect of ithe other defendants who state that they withdrew the moment they realized it was an unlawful assembly." The defendants were all severally convicted and fined

In the cireumstances, however, it is necessary to analyse Peck's Case (3). In that case secs. 112 and 115 of the Justices Act 1902 were interpreted by the light of a long series of decisions in New South Wales. Griffith C.J. (4) pointed out that there were two classes of error which came under those provisions, errors of law and errors of fact. He said: - ''The Court, . . . if the question is one of fact, will follow the rules applicable to the case of an application for a new trial after verdict of a jury. If the finding of fact is one that reasonable men could not find on the evidence the appeal will be allowed." Then: "So, if it appears that the justices proceeded upon an erroneous view of the law, or, to use the modern phrase, misdirected themselves, and did not consider the relevant facts at all, the conviction cannot stand.' It will be observed that both positions assumed that no breach occurred of any fundamental principle of law which would vitiate the whole proceeding and preclude any decision being given, that, however, being the present case. My brother Rich and I (5), after a close examination of the cases and their history, held with reference to statutory prohibition that (1) the Supreme Court was not empowered to give any decision on the facts; (2) the only function of that Court is partly identical with and partly analogous to its function in common law prohibition ; (3) identity exists in respect of absence of jurisdiction to entertain the case or make the order - that is, pure error of fundamental law ; (4) analogy is limited to error where the evidence does not in reason support the decision - that is, error substantially of fact; (5) any other kind of error is excluded. With regard to the last point mentioned, we said (6): " Any other kind of error, where it exists, must find its appropriate remedy."" That is, the Supreme Court, under secs. 112 and 115, is not an ordinary Court of appeal. As to the fourth point, we pointed out that a long series of decisions established that with reference to that objection only (namely, there

Crown. For breach of that elementary principle the House of Lords held the proceedings resulted in a " mistrial and a nullity." That is, they were a " nullity " as to legal efficacy when appropriately challenged, though of course not a nullity in the sense that there was nothing to challenge. Lord Sumner and Lord Parmoor were of the same opinion. But being a "nullity" as to legal efficacy when challenged, it is an inescapable corollary that it is impossible to hold the conviction can be supported by eliminating the vitiating circumstances and considering the case on the residue. Dennis's Case (1) shows that the failure to observe the rule resulted in a want of jurisdiction. McBerny's Case (2) was decided in 1897 and was a particularly strong case and was carefully reasoned out. The accused was tried by a County Court Judge in criminal juris- diction, the Judge being both judge and jury, just as justices are here in summary jurisdiction. McBerny was tried on four distinct charges of theft. In each case the circumstances were similar, for he made a small purchase, tendering a note of considerably larger amount in payment, and then he confused the person from whom the purchase was made, thereby obtaining a larger amount in change than he was entitled to. He was convicted of each offence, and a case was stated for the Supreme Court of Nova Scotia. It was heard by McDonald C.J. and five justices. Reliance was placed by the Crown on a section of the Code which said: "The Judge may adjourn any trial from time to time until finally terminated." The Court unanimously held that even that provision did not permit of the Court departing from the fundamental principle of not inter- mingling charges whereby evidence on one affected or may affect another. Townshend J. (in whose judgment McDonald C.J. and Ritchie J. concurred) said (3) : - '' The object of this clause is to empower the Judge to adjourn the particular trial from time to time for such necessary purposes as receiving further evidence, or, in case of some unforeseen accident, such as sudden illness of counsel or a witness, or for the purpose of considering his judgment. Full effect and meaning is given to the words by this construction. The

wide interpretation by the Judge below of unlimited and undefined power of adjournment, is both contrary to the spirit of our system in the administration of the criminal law and subversive of the right of the accused, and cannot be upheld. But it does not, in my opinion, touch the question submitted for our consideration, that is to say, whether it was competent for the Judge to postpone his decision on the first charge, wntil he had heard all the evidence on the several other charges against the same accused party, and then decide all. This is a more important question than at first sight it appears to be. I was, at first, impressed with the view that, inasmuch as the Judge in this case rightfully admitted evidence of the other charges, to show the animus of the accused, there would be no objection to reserving his decision until after the evidence in all was heard. In this particular case I doubt if the prisoner was at all prejudiced by this course. We are, however, bound to decide on general principles applicable to the administration of criminal justice. It is a fundamental principle that the accused must be tried, and tried only on the evidence given in relation to the particular charge on which he is then indicted, and to which he has pleaded. All extraneous matters, which may affect the minds of the Judge or jurors, must be rigidly excluded. In the County Court criminal jurisdiction, the Judge is also the jury to find on the facts. Now it is hardly conceivable that his mind would not be more or less influenced, in determining the first charge, after listening to the evidence on subsequent charges against the same individual. It would hardly be possible, in aiming at a conclusion in the first case, to dismiss from his consideration impressions created by facts in the others, and, in this way, the accused would necessarily suffer prejudice. It is no answer to say that this objection would equally apply to all subsequent trials after the first, even if he did decide the first before entering on the others, for at least in the first the prisoner would not be fairly tried on the evidence in relation to that alone." With reference to the rule of separate hearing, the learned Judge said (1) - - "Tam, however, of opinion that, in criminal trials before the County Court, when the Judge is the jury, that rule should be followed in allits strictness. While it may be fairly argued that the mind of the Judge,

in succeeding trials against the same accused person, this is incident to the constitution of the Court to which the defendant, it must be remembered, voluntarily submits his rights, but it forms no just reason for changing the ordinary course of criminal procedure, which can only be done by statute. For these reasons, I am of opinion all these convictions must be quashed and a new trial granted." Henry J. said (1) : - The objection is, that each of the first three cases was not disposed of before another was commenced, and it is said that, in every case, the learned Judge improperly had before him, not only the evidence in that case, but the evidence in the three other cases. There is little, if any, direct authority upon this matter. That is not to be much wondered at, because, in criminal proceedings at common law, all trials being by jury, such a question as the present could not arise. I am of opinion, however, that the solution of the difficulty is to be made by having regard to the relation of the statutory to the common law in this respect. It is -an elementary position that the incidents of criminal procedure under the common law are to be affected or modified by statute, only in so far as a clear intention to affect or modify such incidents is apparent. Some light on this question may be obtained by seeing how statutory inroads upon the common law system of criminal trials were first made. If we look at the history of the growth of the jurisdiction of justices, in and out of sessions, we find that a naked authority "to hear and determine ' offences implied a proceeding conformable to the common law mode of determination only, that is, by the common law method of inquisition and the verdict of a jury. See the historical introduction to Paley on Summary Convictions, pp. 3 and 9; 4 Co. 74 b, and authorities there referred to. This indicates the stability of the jury system and its incidents, and emphasizes the necessity of restricting the operation of statutory modifications of the law in this respect to the limits of express provisions. Now, under the common law, the jury could not postpone their decisions, and withhold their verdict, on the trial of a prisoner for one crime, until after they had heard the evidence brought forward in support of one or two or three other indictments

against the same prisoner for other crimes, and then find him guilty of all the crimes charged. That being so, one naturally asks: Where is the authority for subjecting a prisoner to different incidents in this respect from those which would prevail if he were being tried by a jury? The mere substitution of one Judge for twelve jurymen cannot of itself involve the result that the facts may be tried under different conditions when tried by the one man, from those under | which they must be tried when tried by the twelve. Nor can I see that any weight in favour of the course pursued here.is to be given - to the fact that one of the sections of the speedy trials scheme (sec. 777) provides that the Judge may adjourn any trial from time to time, until finally terminated. This section falls far short of authorizing what was done here, and there is obviously ample scope for it without giving it the effect contended for on behalf of the Crown. Moreover, the very existence of this express provision for the adjournment of a trial seems to me to afford good ground for the argument that, if it were intended that the Judge should have the power to postpone his decision in one or more cases until he should hear the evidence in another or others, that unprecedented and unnecessary power would be expressly given, just as the much less important power of adjournment is expressly given." That case was followed by the same Court in 1904 in Burke's Case (1). In 1928, in R. v. Theirlyock (2), the Supreme Court of Alberta, Appellate Division, before Harvey C.J.A. and four Justices of Appeal, held that a trial of two persons by a Police Magistrate on different charges for different offences is a nullity. In that case the point was not even raised by the notice of appeal, but for the first time was taken in argument. The Court applied Dennis's Case (3). Theirlyock's Case was followed in 1929 by the same Court in R. v. Hart and Kozaruk (4), where the two accused were tried and convicted by a magistrate on separate informations charging each with being the keeper of a gaming house. Want of jurisdiction for this reason begins at the point where the elementary rule referred to is infringed. It is elementa because the infringement is a breach of natural justice. See Hx parte

operation. This distinguishes an irregularity from a nullity, which is the highest degree of an irregularity in the most extensive sense of that term, and is such a defect as renders the proceeding, in which it occurs, totally null and void, of no avail or effect whatever, and incapable of being made so." (The italics are mine). At p. 6 it is said: " An irregularity may be waived; a nullity can never be waived." That, however, as will presently be seen, does not mean that every irregularity (so-called) may be waived. Coleridge J. in Holmes v. Russel (1), however, said that the safest rule to determine " what is an irregularity and what is a nullity, is to see whether the party can waive the objection. If he can waive it, it amounts to an irregularity, if he cannot, it is a nullity." So per Taunton J. in Garratt v. Hooper (2). And see per Bankes L.J. in Smythe v. Wiles (3). Judged by this standard, the inability of an accused person by admission or consent to permit an unauthorized exercise of criminal jurisdiction is decisive. The line of demarcation between a mere irregularity and a nullity does not depend on the mere gravity of the circumstances. It is not, for instance, to be sought for by inquiring "Is the accused really guilty ?" or, "Having regard to the evidence, ought he, in our opinion, to be convicted?" That would be usurpation of jurisdiction of a very marked nature. It would be contrary to R. v. Gibson (4), repudiating the report in Russell & Ryan of R. v. Ball (5), and it is opposed to the views expressed by Lord Atkinson for the Privy Council (including Lord Parker of Waddington and Sir Samuel Griffith in Vaithinatha Pillat v. The King-Emperor (6). The statutory prohibition law gives, as I have said, no authority to the Supreme Court, and there- fore, to none of us, to form or express any opinion as to the guilt or innocence of the accused. The law requires that to be done by the designated tribunals of fact, either primary or appellate, and by them alone. Makin's Case (7) is directly in point as to that. In Ibrahim v. The King (8) Lord Sumner for the Privy Council says : (1) (1841) 9 Dowl. 487. Camp. 324; 168 E.R. 721; 170 E.R. (2) (1831) 1 Dowl. 28. 973. (3) (1921) 2 K.B. 6 5. (6) (1913) L.R. 40 Ind. App., at p. (4) (1887) 18 Q.B.D. 537. 199.

or different misdemeanours was obviously calculated to be embarrass- ing and unfair. There was certainly a discretionary power in the presiding Judge to limit the prosecution to one charge, or as he thought just. But the joinder, however oppressive, was not illegal. The position at common law is sufficiently expounded in Castro v. The Queen (1) by Lord Blackburn, in R. v. Bailey (2) and R. v. Southern (3). Parliament, however, when committing the summary determination of criminal accusations to magistrates untrained in Jaw, and less able to apply discretionary distinctions in this connection (Jervis's Act, sec. 10, and New South Wales Justices Act, sec. 57), took the matter into its own hands and forbade the possibility of unfairness or embarrassment by the joinder of offences in the one information. A contravention of that prohibition is positively illegal. The legislation was manifestly not directed to mere pleading, leaving the real evil and abuse untouched. By requiring the charge itself to be thus limited, it became a necessary implication or concomitant of the words of the enactment that "the case" so launched must be dealt with by itself. Pollock B. said (4): "In other words, the statute requires that each case shall be considered on its own merits, and on the evidence given under one information." The learned Baron added : - " Here there is nothing to show that the justices, in acting on each information, proceeded on the evidence applicable solely to that information. In my opinion, therefore, the spirit of the enactment was violated, and both convictions must be quashed." Williams J. was of the same opinion. That Pollock B. meant by "the spirit" the necessary implication is shown by the report in the Law Reports of Hamilton v. Walker (5), where he refers to the well-known principle of the criminal law that each case should stand on its own merits, a principle that necessarily, in the absence of words to the contrary, attached, and was on the palpable reason of the enactment intended to attach, itself to the direct prohibitory provision as to the information. A direct decision, because on habeas corpus, that a summary conviction on an information for two offences is

Lordship turned to an argument that it was merely an irregularity which sec. 537 might cure. Said Lord Halsbury (1) : - * Their Lord- ships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences spread over a longer period than by law could have been joined together in one indictment. . . . The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that sucha trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity." I may interrupt that judgment by observing that, mutatis mutandis, the reasoning of Lord Halsbury fits exactly the reasoning of Pollock B. For it would be a singular distinction that would confine the legal effect of sec. 57 of the Justices Act (in New South Wales) to the information, which may be curable under the statute before conviction, leaving the Court at large to commit the real injustice by lumping the hearing of as many cases as it pleased. Sec. 57 separates offences from first to last by the necessary implica- tion of its prohibitory words. The common law separates the hearing of "cases"; and the section confines "a case" to a single offence, and, so read, the enactment carries the all-important and necessary implication that the common law rule as to separate consideration of each case is to be observed in accordance with the express statutory provision. After conviction the damage is done. Lord Halsbury went on to add (2) : - Some pertinent observations are made upon the subject by Lord Herschell and Lord Russell of Killowen" in Smurth- waite v. Hannay (3). ' Where in a civil case several causes of action were joined, Lord Herschell says (4) that 'if unwarranted by any enactment or rule it is much more than an irregularity'; and Lord Russell of Killowen in the same case says (5): 'Such a joinder of plaintiffs is more than an irregularity : it is the constitution of a

Ingleby (1), namely, "an individual cannot waive a matter in which the public have an interest." This is reaffirmed by the Privy Council in Anctil v. Manufacturers' Life Insurance Co. (2), and again stated by Vaughan Williams L.J. in Norwich Corporation v. Norwich Electric Tramway Co. (3). The subject is well treated in Maxwell on Statutes, 7th ed. (1929), at p. 331. The inability to consent in criminal matters is only an instance, though a very pronounced and well guarded instance. If what Lord Halsbury said in the case of N. A. Subramania Iyer v. The King-Emperor (4) be recalled to mind, it is plain that a course of criminal procedure that causes " embarrassment to Judges" cannot be made lawful by the simple consent of an individual. In Bertrand's Case (5) Sir John Coleridge said practically the same regarding the jury. If Parliament lays down, as it has laid down in criminal administration, a public policy of one offence only at a time, that policy must be adhered to and private consent cannot justify its contravention. In Park Gate Tron Co. v. Coates (6) Montague Smith J. said: "It is a rule in criminal matters that the parties cannot waive what the law directs." It is not correct to say that all irregularities can be waived. In Abdul Rahman v. The King-Emperor (7) Lord Phillimore, for the Judicial Committee, said: "' They wish it to be understood that no serious defect in conducting a criminal trial can be justified or cured by the consent of the advocate of the accused." That is so, of course, apart from statutory alteration of the common law, and as such is a reaffirmation of what was said in Bertrand's Case. The Indian case just referred to was an instance of an intra vires irregularity by departing from affirmative directions, an irregularity which, however, fell within sec. 537, providing that no irregularity should lead to reversing a finding unless it had, " in fact, occasioned a failure of justice." That is, an affirmative finding was required. Their Lordships held the necessary fact had not been proved, since the irregularity was "unaccompanied by any probable suggestion

necessary legal right ? Mr. Thomas, the mine manager, said as to the intended employees : - "I saw men outside the colliery. I understand that the terms of employment in which they were to be engaged were not in accordance with the award governing the industry." He also said: "Some of them worked in the mine at rates lower than those specified in the award." So far as affirmative evidence goes, therefore, it appears there was an " award governing the industry," that its terms were departed from or to be departed from. No evidence of identity of employer or employed. How can it be said that the prosecutor had complied with the very first rule above quoted from Best on Evidence? At best for the prosecution the facts are equivocal, and in the oft quoted words of Lord Stowell in Bvans v. Evans (1): "If you have a criminal fact ascertained, you may then take presumptive proof to show who did it ; to fix the criminal, having then an actual corpus delicti . . . but to take presumptions in order to swell an equivocal fact, a fact that is abso- lutely ambiguous in its own nature, into a criminal fact, is a mode -of proceeding of a very different nature; and would, I take it, be an entire misapplication of the doctrine of presumptions." If the unlawfulness of the assembly were affirmatively proved, then the presence of the accused in certain circumstances might lead to a rebuttable presumption of fact as to the consciousness of its object, -or the part of those who participated. But the unlawfulness of the -assembly, as the Act requires it, remains wholly unproved. It is impossible to apply the second rule quoted and say it is satisfied. Even in a case not criminal in any real sense, this Court absolved the defendant on a ground very shortly stated. In Houston v. Wittner's Pty. Ltd. (2) it was said by the majority of the Court (Knox C.J. and Gavan Duffy and Starke JJ.): " The evidence is consistent with different conclusions and 'if anyone is to suffer from -deficiency in evidence . . . at the trial it must be the person But if the principle there

more persons, whose common object is, by means of intimidation 0 injury, to compel any person to do what he is not legally bound to do, or to abstain from doing what he is legally entitled to do, sha le be deemed an unlawful assembly. A considerable body of men- estimated at from five thousand to ten thousand - assembled near the Rothbury Colliery during the night of 15th December 1929 - or the early morning of the 16th - and at dawn moved on the colliery, - Their object, as some of the accused said, was to " get " the " scabs" i in the colliery - by which they meant the men who had been employed _ and were preparing to work the colliery. There was evidence that some few of the men in the assembly had firearms in their possession, and that others were armed with sticks, stones or bottles, and particularly that the defendant Mitchison had a stick some three feet long in his possession, and Patterson a bottle. Prima facie, a man is legally entitled to exercise his ordinary calling and to work when, where and for whom he pleases, and the men employed at the - Rothbury Colliery were simply attempting to exercise their right to work. It was argued that they were not legally entitled so to do because they were engaged at less than the rates fixed by some arbitral tribunal or award, but the evidence fails to establish the precise terms of the award, and whether the employers or the employees at the Rothbury mine were covered or bound by it. The object of the assembly, on this evidence, was by means of intimidation and injury to prevent the men employed at Rothbury - from working the colliery. And, but for the steady courage of the - police officers there present, one cannot doubt, on the evidence, - that that object would have been achieved. The presence of each accused in this assembly was proved, and that they all travelled considerable distances throughout the night to reach the place of meeting. Some stated that they had so travelled to attend an aggregate meeting of miners' lodges at Rothbury which was never held; this statement sounds incredible, in the circumstances, and it is, in any case, one wholly for the consideration of the magistrate. The objection that evidence was wrongly admitted was thus stated : (1) " That the evidence relating to the assembly was applied _ to the defendants indiscriminately after some of the defendants had - retired from it." No doubt the magistrate stated that the whole

of the evidence was taken into consideration in respect of each defendant, for the purpose of determining whether there was an unlawful assembly. But in order to ascertain the object of the assembly the acts or doings of those forming it during the whole course of its existence are properly admissible in evidence. The objection proceeded : (2) " That the evidence of the connection of each individual defendant with the assembly was used indiscrimin- ately against all the defendants." But the statement of the magistrate, just referred to, negatives this contention: that state- ment makes it clear that the whole of the evidence was only taken into consideration for the purpose of determining whether there was an unlawful assembly, and that otherwise the case of each defendant was considered separately. That is the course one would expect from the experienced Police Magistrate who heard these cases, and there is no rule of law forbidding such a course, nor any presumption of fact that he acted wrongly, when every circumstance points to the conclusion that he acted properly and in accordance with law. Further, the evidence or depositions of Richard Thomas and Archibald Gilmour Virtue Wood, in Aubin's Case, were tendered, and, by consent, admitted as evidence in the cases now before us. Apparently these witnesses were not sworn nor their evidence read over to them: we do not remember that this objection was raised at the Bar, but the course taken regarding such depositions was, in our opinion, quite irregular, and ought not to have been pursued. There is, however, ample evidence without these depositions to support the convictions. And it has been laid down in New South Wales that the Court must look at the whole of the evidence before the magistrate and if, after rejecting all the improper evidence and giving effect to every other legal objection, enough remains which is unobjection- able, the conviction must be sustained (Ex parte Ward (1); Ex parte Damsiell (2); Peck v. Adelaide Steamship Co. (3) ).

and the Supreme Court followed its former judgment and absolute the order nisi for statutory prohibition in respect of all _ eighteen convictions. ; In deciding Russell v. Bates (1) the Supreme Court applied to proceedings before justices the authorities which establish that two indictments cannot be tried at once, and it appears from the cases which the learned Chief Justice of this Court has found that in some of the Provinces of Canada a like use has been made of these - authorities. f There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ez officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may _ be exposed. The latter are disposed of in a manner adopted by - the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the - bar of the Court "in his own proper person and being demanded concerning the premises in the indictment specified and charged _ upon him how he will acquit himself thereof he saith that he is not 4 guilty thereof and thereof for good and evil he puts himself upon the Country and he who prosecutes for our Lord the King doth the like." In the other the defendant is given a sufficient opportunity to appear which (unless he be in custody because it is considered that 4 he will abscond) he may exercise or not at his choice, and, whether - he avails himself or not of his right to be present, he is dealt with - by those assigned to keep the peace, who judge both law and fact. "There is," says Blackstone, "no intervention of a jury, but the

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