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[1905] HCA 10
High Court of Australia
1905-07-01
Pring J, Barton J
Original judgment source is linked above.
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Inve Nee South Wales - Lotteries - Imperi 6.8 - Contruction of 9 Geo, IV.
Acts 4 Geo. IV. ¢, 60, and 5 Geo. IV.
'The Imperial Acts, 4 Geo, IV. c. 60, which, inter alia, makes it an offence to sell tickets in a lottery not authorized by that or some other Act of Parliament, su 5 Geo. IV. c, 83, as far as they relate to proceedings before Ji at in force in New South Wales.
In considering whether an Imperial Act passed after the settlement of the Gilony of New South Wales, and before 9 Geo. IV. c. $3, can be "applied in the administration of justice" in New South Wales, within the meaning of of the latter Act, the test is whether the provisions of the Act under Consideration were suitable to the conditions of the Colony, and capable of 'ing reasonably applied there, when the 9 Geo, IV. c. 83 was passed.
Mitchel v. Ah King, 21 N.S.W. L.R., 64, and dictum in Anderson v. Ah Nam, (1904) 4 S.R. (N.S. W.), 492, overruled.
Atorney-General v. Rdgley, 9 N.8.W. L.R., 157, approved.
Decision of Pring J. (2nd December, 1904) reversed.
Al from a decision of Pring J. in Chambers, upon a special Mestated under the Justices Act (N.S.W.), No. 27 of 1902.
The following statement of the facts and proceedings is taken the judgment of Barton J. Quan Yick, the appellant, wi: 'ctor Hinds, the res}
as prosecuted by police Sub- pondent, for selling a ticket in a Chinese py
appellant did sell a ticket in a lottery not authorized by that any other Act of Parliament, in terms of the section. 'The gi pendiary Magistrate dismissed the charge on the ground that 'Act in question was not in force in New South Wales 9 a special case stated for the opinion of the Supreme Cou under the Justices Act 1902, Pring J. answered the qu whether the Act was in force, affirmatively, and directed thatthe case be remitted to the Magistrate accordingly.
'The learned Judge based his decision on the opinion of th Full Court in Anderson v. Ah Nam (1). He did not deliver s detailed judgment because he relied on the reasons given by th Court in that case. *
From that decision Quan Yick now appealed by special lear, and the question is whether the Act 4 Geo. LV. ¢, 60 see. 41 isin foree in New South Wales.
The titles and the material sections of the various Statutes ferred to appear in the judgments.
Dr. Cullen K.C. and Lamb (with them Watt), for the appella The Act 4 Geo. IV. ¢. 60 was an Appropriation Act. Its mait purpose was the establishment of certain publie lotteries in onlerto raise revenue, Primd facie therefore it was a local and tempo Act. It was exhausted before the passing of 9 Geo. IV. and never eame into force in New South Wales. The objettal the restrictive and punitive sections of the Act was subsiday to the main object, and therefore, when the lotteries were com pleted, the subsidiary object ceased to exist. Many Acts of similar nature had been passed previously, containing proviso in restriction of competition by private lotteries. These were all treated as exhausted when the particular lottery € lished in each ease had been completed. The only new featureis 4 Geo. IV. ¢. 60 was see. 19, by which the clauses relative to! suppression of illegal lotteries, and the sale of foreign lo tickets were continued in force. Except as to the provisions wh ch were thus made permanent, the Act had ceased to bein foreeat!
Jotteries and insurances therein" do not include the ale of private lottery tickets. If it had been intended that they 'ould, that would have been clearly stated, in the same way as
Act creating specific offences, and must be strictly construed, not extended in the direction of the general purpose of the Act: 'oenee v. Persian Investment Corporation (1).
"Tf however, that prohibition came within the words "relative tothe suppression of illegal lotteries," and was made permanent x se, 19, it was not introduced here by 9 Geo. IV.c. 83. It was wut an Act which could "be applied in the administration of justice" in the Courts within the meaning of 9 Geo. IV. ¢. 83, 24 The Statute must be such as can reasonably be applied a the time when 9 Geo. IV. c. 88 was passed : Attorney-General , Sewart (2); Jex v. McKinney (3); Whicker v. Hume (4): Ry. Vaughan (5); MacDonald v. Levy (6). 4 Geo. IV. ¢. 60 toild not reasonably be applied here, because the sections which provide the punishment and the method of recovering the penalties, wes 41 and 62, are applicable to procedure in the English Courts . By see. 41 one of the consequences of conviction is that tie ofender is to be deemed a "rogue and vagabond" and fined 4), with an exception in favour of newspaper proprietors who registered under certain English Acts. 'That exception could mitapply here. Again, sec. 62 provides amongst other things that Penalties are to be recovered by His Majesty's Attorney- General in the Court of Exchequer at Westminster, if the offence Nis committed in England, and that any proceeding initiated in other person's name shall be null and void. 'The machinery the Act is therefore inapplicable to this Colony, and the whole Act must be treated as inapplicable: R. v. Schofield (7).
The English Vagrancy Act, 5 Geo. IV. c. 83 repealed the msishment and procedure sections of 4 Geo. IV. ¢. 60 so far as applied to "rogues and vagabonds," and provided (sec. 21) in future such persons should be punished under the later
"of9 Geo. IV.¢. 83, The words "relative to the suppression #. oF A
'Act. In 1829, therefore, the punishment sections of 4 Geo, J] ¢. 60 were not in foree in England, and could not be introdugs here. The punishment provisions of 5 Geo. IV. e. 83 were napplis able to the conditions existing in this Colony in 1829. Part them deal with the consequences to the offender, with refereng, to the English poor law, and could never have been applied here. 'Another objection is that in England there was by 5 Geo, V.¢ 60 an appeal to Quarter Sessions from a conviction under th 'Act, whereas in this Colony there were no Courts of Qu Sessions until some time had elapsed after the passing of 9 IV.c. 83. There was thus an interval during which a persn convicted here would have been in a worse position than one
But even if, in the absence of an authoritative pronouneement, the Act might possibly be deemed applicable here, doubt has been set at rest by Ordinance 6 Wm. IV. No. 6, repealed by the Vagrangy Act 15 Viet. No. 4, which dealt with the whole subject af That was amended by 24 Vict. No. 25, and the various Acts wi consolidated in Act No. 13 of 1901, and later consolidated finally in Act No. 74 of 1902. The Ordinance 6 Wm. IV. No. 6 was av exercise of the power conferred by sec. 24 of 9 Geo. IV. « 8 upon the Governor of the Colony to make such limitations anil modifications of English Statutes as may be deemed expedient Tt was not a mere procedure Act; it dealt with the whole subjet of vagrancy, and must therefore be regarded as an implied repall of any English Statutes dealing with the same subject, supe seding them so far as they applied here. From that date theonly persons liable to be dealt with as rogues and vagabonds in New South Wales were those stated in that Act. 'The punishmet clauses of 5 Geo. IV. c. 83 were therefore wholly gone: Rw Maloney (1). See. 21 is the only portion of that Act which not dealt with by the New South Wales Vagrancy A, tnt when an enactment practically superseding the English Act passed, in words almost identical, and dealing with the whole subject, the colonial enactment should be regarded as in substit tion for the English. ['They referred to R. v. Hilaire (2)] ™ omission of one section is not sufficient reason for holding tat
'on to be still in foree, unless it is clearly applicable. More- H.C. or A. 1905,
hen the sections which deal with the main purpose of the 'Au: have gone, the subsidiary provisions, like sec. 21, should go wth them, Mitehell v. Al King (1), whieh is to the contrary, vas wrongly decided. 'The result of leaving sec, 21 standing onld be that, all the punishment provisions having gone, a man having been found guilty of being a rogue and vagabond, must be Allowed to go free, for there is no existing provision in our law inflicting a further punishment. Buying and selling the tickets "jus been held to be no offence: per Martin C.J. in R. v. Ah Tow a the most there is only a small part of section 41 of 4 Geo. "¥..60 which could possibly be applied here. A small part ~ should not be picked out from an Imperial Act and applied, simply " Ieeause there is nothing to contradict it in local Statutes, if the ~ {ot from which it is taken is inapplicable as a whole, or exhausted. (They referred to R. v. Colan (3).] It is searcely possible to find mm Act from which some small provision could not be extracted "which, standing alone, could be applied in the Colony. Where an Act deals with"one subject only, the question is whether the "Actas a whole is applicable. ! Fnglish legislation of this class comes under the head of "police" lins,as to which the presumption is that they are intended to fit lal conditions and to have only local application: I Blac. Comm., p07, and IV., p. 161 C.B. In the absence of adoption by express legislation or declaration as provided by 9 Geo. IV. e. 83, sec. 24,
sch English Statutes should be presumed to be inapplicable to "the Colony.
Blackét, for the respondent. There is nothing peculiar in the Sieunstances of this country which would render the English liw on the subject of lotteries inapplicable here, When the
. When necessity arises, if there is in existence an English 4
ready and capable of being reasonably applied, it should be app [He referred to Delohery v. Permanent Trustee Company of Now South Wales (1).] The Nullwm Tempus Act contains a provsin which could not benefit the Crown here, though it wonld England, yet it is in force here: Attorney-General of NSW, Love (2). The mention of the words England and Scotland ia the Act does not make it inapplicable. Presumably every English Act is in the first instance intended only to apply to England, but the original intention is immaterial: R. v. Colan' Minor provisions may cause difficulties, but the question is whether an individual may be injured by its application,
Sunday Observance Acts: Walker v. Solomon (4); MHugh v. Robertson (5). The English Lottery Act, 10 Wm, IIL ¢. 23, held to bein foree here: R. v. Ah Tow (6); the 42 Geo. IIIc 119 in Attorney-General v. Edgley (7). [He referred also to Fo Cases and Opinions on Constitutional Law (1869), pp. 18,18 Blankard v. Galdy (8).) Z
There is nothing in the machinery or punishment sections o the two Acts rendering them incapable of being applied. Under see. 41 there are two independent ways of proceeding, one by prosecution, the other by a civil proceeding to recover the penalty. The former could, consistently with the section, be initiated bya common informer ; it is only the latter which is reserved to the Attorney-General. 4 Geo. IV. c. 60 has been held to be in foree in England now as regards the sule of lottery tickets: Hall v. MeWilliam (9). It must therefore have been in fore there when 9 Geo. IV. c. 83 was passed, and should be applied here, eertait so far as the summary proceedings are concerned. The fact that the one proceeding is inapplicable to this Colony does not makei unreasonable to hold that the other could be applied.
But the proceedings by the Attorney-General can be equall 7 well taken here. By the Charter of Justice and 9 Geo IV.¢ 8%
(Q) 1C.LR., 283. 5) MYER 0. (2) (1898) 4°C., 679, 341. (3) 18.C.R. (N'S,W.) N.S, 1
wyersof the Supreme Court here are equal to those of the Conrtof Judicature in England, and any proceedings whieh aye taken in the Court of Exchequer in England may be 'There is also to be an Attorney-General here repre- eating His Majesty in the same way as the Attorney-General in nd; Charter of Justice, sec. 16. 'The powers and attributes sf the Attorney-General are dependent upon common law, and h to whosoever fills the position wherever he may be. Bren if see. 21 of 5 Geo. IV. ¢. 83 were not in force here, and junishment could be inflicted, there would be no reason why the eonsequence of being deemed a rogue and vagabond should mnt follow conviction under see. 41 of the 4 Geo. IV. c. 60. [He ed to Taylor v. Smetten (1).] (OCoyxor J - Have you not to show that there is a power in the magistrate to inflict a pecuniary penalty in addition to {jmmatising the offender as a rogue and vagabond ?] 'That can be done under 5 Geo. IV. . 83. It is in foree in England still: Youdan v. Crookes (2). It is applicable here and has never been repealed or declared not to be in force under 9 io. IY. ¢, 83, see. 24. In 1829 there were two classes of rogues _ md vagabonds under English law, those under 4 Geo. IV. c. 60, "amd those under the 5 Geo. IV. c. 83. Our Vagrancy Act either included all these in its provisions and rendered them all punish- thle under it, or excluded those who were rogues and vagabonds mder 4 Geo. IV. c. 60, and left them to be punished under 5 Geo. ¢ 83, There was no necessity for the New South Wales Act to provide for this particular class, when there was an English Attin force dealing with them. There can be no inference that he loeal Act was intended to be a code. It was required to deal with certain classes of oftenders altogether new to the law, and etuliar to local conditions, and cannot be said to have repealed the English law as to one particular class, merely because it is slent on that subject. The parts of 4 Geo. IV. c. 60 that were made permanent by sec. a must include the restriction upon the sale of private lottery tickets. Prevention of the sale of tickets is clearly "relative to
the suppression" of such lotteries. 'The general term was and the sale not specificially mentioned, in order to cover all methods of suppression, whereas in regard to foreign lotteries, only possible way of checking them was by preventing the of the tickets. In any case see. 41 is in its nature perm and is not made less so by see. 19.
[O'Cownor J. referred to Mitchell v. Ah King (1) as haviy dealt with this particular point.]
'The fact that there was an interval between 9 Geo. IV. ¢ and the establishment of Courts of Quarter Sessions in Ni South Wales does not present an insuperable objection, Part o the machinery of an English Statute may not existin the Colony and still the Statute may be applicable: Attorney-General y, Edgley (2). No legislation in England can exactly fit colo conditions, If, however, an English Act is not to be applied in Colony unless all the machinery exists there, it is sufficient if it exists at the time when the question of applicability arises Courts of Quarter Sessions were established here in 1829, and by 10 Geo. IV. No. 7 were given cognizance of all matters eg nizable by similar Courts in England, and now there is an apy from all summary convictions by sec. 122 of the Justices Act (No. 27 of 1902). [He referred also to Stone, Justices' Manwal(1904, p. 633; and Dunne v. O'Reilly (3)}.
Dr. Cullen K.C. in reply. It does not appear that this point was taken or considered in Hall v. Me William (4).
The date at which the applicability is to be tested in thatoff Geo. IV. ¢. 83: Ex parte Lyons (5); M'Hugh v. Robertson (0) Tn Plunkett's collection of Statutes in force in 1840 this Statute was not mentioned. [He referred also to R. v. Tuddenham (7); Tuck & Sons v. Priester (8); Graves & Co. Ltd. v. Gorrie (): Hildesheimer v. W. & F. Faulkner Ltd. (10); Dawes v. Pain aj
[Grirrrrn C.J. referred to Swinton v. Builey (12).)
(2) 1 Legge 46 (11) Freem. K.B,, 175. (6) NV.LR., 410, (12) 4 App. Cas.,'70.
10% _ referred to Brand v. Hammersmith &c. Railway H.C. or A. _[0'Coxxon J. rel y oes
Gurr CJ. The question formally raised in this case is iether the Imperial Act 4 Geo. TV. c. 60 is in foree in New South Wales. Having regard, however, to the fact that the uation arises in a prosecution of the appellant before Justices for selling a ticket in a lottery not authorized by any Act of urliament, which is made an offence by section 41 of that Act, points are really involved: (1) Whether the provisions of the ion ereating the offence are in force, and, if so, (2) whether the provisions of the English laws which authorize a summary pro- vention of offenders against it before Justices are in operation in New South Wales.
The Act was passed after the settlement of the Colony, and didnot, when passed, extend to New South Wales. If, therefore, itisnow in operation, it must be by virtue of the Act commonly tilled the"New South Wales Act," 9 Geo. IV. ¢. 83. Section 24 of that Act, which has been the subject of frequent discussion, pro- vides thatall laws and Statutes in force within the realmof England atthe time of the passing of the Act "shall be applied in the ulninistration of justice in the Courts of New South Wales and Van Diemen's Land respectively so far as the same ean be applied within the said Colonies, and as often as any doubt shall arise as tothe application of any such laws or Statutes in the said Colonies 'nepectively it shall be lawful for the Governors of the said Colonies 'tepéctively by and with the advice of the Legislative Councils the said Colonies respectively by ordinances to be by them for purpose made to declare whether such laws or Statutes shall deemed to extend to such Colonies and to be in force within the "ue or to make and establish such limitations and modifications {my such laws and Statutes within the said Colonies respectively may be deemed expedient in that behalf Provided always that the meantime and before any such ordinanees shall be actually ibshall be the duty of the said Supreme Courts as often as
any such doubts shall arise upon the trial of any information 9 action or upon any other proceeding before them to adjudge decide as to the application of any such laws or Statutes jn said Colonies respectively."
'Two different forms of words are used in this seetion: (1) «Mh laws and Statutes shall be applied . . . . so faras thesam can be applied within the said Colonies," and (2) When a ¢ arises "as to the application of any such laws and Statutes" local legislature may by ordinance declare whether such
the section. No doubt, almost every Statute law in foree in England in 1828 could in one sense be applied in New Soa Wales. That is to say, if the Act of 9 Geo. IV. is read as declarin that every such Statute is to be deemed to be part of the Sta law of New South Wales, some at least of its provisions would be found to be not unintelligible, and in that sense to.be capable df application. But these are not the words of the Act. The quest being, then, whether any particular Statute "extends to and isin foree in New South Wales," on what principle is the question to be solved? In Whicker v. Hume (1), a case arising under thi
Colony of Bri : of 9 Geo. IL. ¢. 31, commonly called the Mortmain Act, had b
made part of the law of the Colony by virtue of a local Statue which declared that "all laws of universal application rela to" certain specified subjects, which included that under consi
() THLLG., 12451 DM. &G., 506. (2) 1 D.M. & G., 506, at p- OIE" (3) 14 App. Cas., 77
, shall be and the same are hereby declared to be laws of this settlement." (The section contained the further Qv,
the laws in question should be "laws of the settlement" so far asthey were applicable or could be applied. The words of he Act of 9 Geo. IV. cannot, at any rate, have a wider operation.
to all within the description of "laws which are applicable or «an be applied to British Honduras." After quoting the words of ight-Bruce LJ., already referred to, the opinion proceeded (1): "ffthe colonial enactments are to be construed in this way, we brought back to the question whether the Statute of Geo. TLis suitable to a young English Colony in a new country. The principle on which such questions should turn has been laid dom by Blackstone in his Commentaries, vol. I, p. 108"; and, alter referring to Attorney-General v. Stewart (2); and Whicker : Hume (3), added : "Their Lordships think the reasoning on lth those decisions are founded is sound reasoning." In Cooper ; Suart (4), an appeal from New South Wales decided in the sume year (1889), the passage from Blackstone referred to in tay, McKinney is quoted at length with approval by Lord Watson (who was a member of the Board in Jer v. McKinney) ilivering the opinion of the Judicial Committee. It is as
ject, are immediately there in foree (Salk. LIL, 666). But
must be understood with very many and very great restrie- Such colonists carry with them only so much of the (0) App. Cas., 77, at p. 81. (3) 7 HLL.
@)2Mer., p. 143, (4) 14 App. (5) 14 App. Cas., 286, at p. 291.
vnis "bat this is not extended to any law of any local or limited yy...
English law as is applicable to the condition of an infant Coly such, for instanee, as the general rules of inheritance and prog tion from personal injuries. The artificial requirements a distinctions incident to the property of a great and commer people, the laws of police and revenue (such especially as gp enforeed by penalties), the mode of maintenance of the estabishel Chureh, the jurisdiction of spiritual Courts, and a multitude gt other provisions are neither necessary nor convenient for thep, and therefore are not in force. What shall be admitted and wh rejected, at what time and under what restrictions, must, in @ 7 of dispute, be decided in the first instance by their own pro judicature, subject to the decision and control of the King Council ; the whole of their constitution being also liable to by new-modelled and reformed by the general superintending poner of the legislature in the mother country."
Referring to Jex v. McKinney, Lord Watson said (1): case differed from the present in this respect, that there the of England was introduced into the Colony by Statute, and
Geo. IV. ¢. 60, or that part of it which is now in question, was suitable or unsuitable in its nature to the needs of the Colon And this question must, in my opinion, be determined by 1 consideration of the condition of the Colony in 1828, when the 9 Geo. IV. was passed. If the provisions of the Statute intrinsically ineapable of application owing to the condition of laws and institutions of the Colony, its applicability would b negatived on another and quite independent ground. Itis necessary to consider in some detail the Act 4 Geo. We 60. That Act is in form an Appropriation Act, being the lastol number of similar Acts authorizing State lotteries. Privatelotteris ta been made unlawful by a series of Acts beginning with It Win. IIL ¢. 23, and persons conducting them were guilty ofam 'cates The provisions of the earlier State Lottery 4
yer of a temporary nature and expired by effluxion of time, W. me ofthe series, 1 & 2 Geo. IV. ¢. 120, appeared for the first inean enactment which, with some modifications to which T i direct attention, appears in see. 41, the section under our vomideration, It provided (1 & 2 Geo. IV. c. 120 sec. 38) that any person who should sell any ticket in any lottery exeept such seshonld be authorized by that or some other Act of Parliament, rshonld do certain other acts relating to sueh lotteries, should be fable to certain specified penal consequences. In another later "Act (3 Geo. IV. c. 101), this provision was re-enacted (see. 39) in 'the same form in which it appears in sec. 41. Neither of these "Adis contained any provision making any part of them perpetual, ofits at least open to contention that it was taken for granted tlat the provisions as to the sale of tickets in unauthorized lotteries
vere regaried as merely ancillary to the main purpose of the Aets, "andes expiring with them. The Act 4 Geo. IV. ¢. 60, however, "contains for the first time in see, 19 an enactment of a permanent
ur. After reciting that it might be expedient to discontinue _nising money for the Public Service by way of Lottery after the sale of the tickets authorized by that Act, and that in that case 'itwould be necessary to continue in force such parts of the Act
'ts will be necessary to repress unlawful insurance in Little- "ges and Private Lotteries and prevent the sale and publishing _proposils for the sale of Foreign Lottery tickets within the United Kingiom" and for some other purposes, it was enacted "that from indafter the drawing of the lottery authorized by this Act and the 'uatters relating thereto the clauses herein contained relative to the suppression of illegal lotteriesand insurances therein and to the pre- _Yenting the sale and publishing proposals for the sale of foreign hitery ticketsshall remain infull foree and virtue notwithstanding tiher powers given by this Act may have ceased and determined." Se 41 enacts that "if any person shall sell any ticket 'nanylottery . . . . authorized by any foreign Potentate or Ste or in any lottery or lotteries except such as shall be thorized by this or some other Act of Parliament to be sold" 8 Publish Proposals for the sale of tickets "except in such leties as shall be authorized as aforesaid, such person shall Srevery such offence forfeit and pay the sum of £50, and shall
also be deemed a rogue and vagabond and shall be punig such in the manner herein directed." 'The penalty of £59 by see. 62, to be recoverable by proceedings in the Courts of Exchequer in England, Ireland, and Scotland at the suit of th 'Attorney-General or Advocate General, and not otherwise, Act contained two other enactments of a permanent nature ( 60, 61) to which it is not necessary to refer more particular The provisions of the Act for punishing rogues and vagal were contained in sec. 67, which provided that if any pe should be convieted of an offence against the Act and adjudg rogue and vagabond the Justices should order him to be sentty the House of Correction for a term not exceeding six months nl not less than one month, and on a second conviction might further order him to be privately whipped. No appeal was given from the conviction. Sec. 41 contained a proviso that the punishment of being deemed a rogue and vagabond and punished as sith should not extend to proprietors printers and publishers of nen papers charged with publishing proposals for the sale of tid in foreign or unauthorized lotteries if they proved that they hi complied with the provisions of the English Acts relating to tration of newspapers. It was contended for the appellant these State Lottery Acts, including the Act now in question, mist be taken to have expired as soon as they had served their parpos, except so far as they were expressly made perpetual, and
the provision in sec. 41 as to selling lottery tickets is not ineludel in see. 19. The "clauses" which by sec. 19 are to remain infor sion of illegal lotteries ani
are those "relative to the suppr insurance therein and the sale of foreign lottery tickets" 41 does not use the expression "illegal lotteries" but speaks of "the sale of tickets in any lottery or lotteries except such # are or shall be authorized by this or some other Act of Pir liament to be sold." There can, I think, be no doubt thit lotteries falling within this deseription are those intended by tl
the sale of tickets in such lotteries and of the publishing : proposals with respect to them were clauses relative to the sup pression of illegal lotteries within the meaning of that section
LR] OF AUSTRALLA. Piste proposal for the sale of tickets in an unauthorized - ry has been sustained Hall vy. Me William (1). I cannot dis-
jon of proposals for theii sale as beingequally provisions relativeto sappresion of lotteries. 'The suggestion that the express refer- ence, in the preamble to sec. 19, to the sale of foreign lottery tickets Judes the inference that this prohibition is a clause relating 'guppression" was well answered by pointing out that the "guppression " was not applicable to a foreign lottery, which 'ould not be dealt with by the English law, except by provisions for preventing the sale of tickets, while any steps taken to pre- seat the snecessful carrying out of an English lottery might pro- 'pally be included under that term. In my opinion, therefore, the 'enactment in question was permanent.
Were then the provisions of sec. 41 suitable to the conditions ci New South Wales in 1828? It has never been doubted 'that the general provisions of the criminal law were introduced hy the Act 9 Geo. IV. c. 83. And it has been expressly held jn New South Wales that the English Lottery Act, 42 Geo. ILe 119, by which the keeping of a lottery was made a mis- demeanour, was so introduced: Attorney-General v. Edgley (2, If there was no more in the case, it might be held that the provisions of see. 41, regarded as ancillary, though minor, Worisions, were equally introduced. It was, however, con- tended that this inference is excluded by the provision in sec, 4lasto the.penalty of £50 to be recovered at the suit of the 'Attorney-General in the Court of Exchequer only, and by the 'Worisions as to the punishment of rogues and vagabonds, both
Which, it is said, were inapplicable to New South Wales in 1828. As to the first objection the case of Attorney-General Higley (2) is in point. That was a suit by the Attorney- General of New South Wales to recover a penalty of £500 'imposed by the Act 42 Geo. III. e. 119, sec. 2, upon the keepers stlotteries. That section contained also a provision, analogous 'othit of see. 41 now in question, that a keeper of a lottery "wold be deemed a rogue and vagabond. 'The objection that
ish between a prohibition of the sale of ticket' and a prohibi- Qoax Yiox
the suit could only be brought in the Court of Exchequer not, indeed, taken, but I see no reason to doubt the « ness of the decision.
'The second objection raises difficulties of a different cha It is pointed out that the provisions exempting printers, publishers of newspapers from liability to be punished as ropy
and publishers in the Colony would either be exempt altogeth or liable unconditionally. Such a law, it is said, could not be deemed to extend to New South Wales. It appears to me that there is much foree in this argument. Tt is not, however necessary to decide the point, inasmuch as the provisions of th Act 4 Geo. IV. ¢. 60 as to the punishment of rogues and vagabonis were repealed by the Act 5 Geo. LV. c. 88, other provisions be substituted by see. 21 of that Act. The Statutes relating to subject now under consideration which were in foree at th passing of the Act of 9 Geo. IV. were, therefore, 4 Geo. [Vie 60, see. 41, except so far as it deals with the mode of punishment of rogues and vagabonds, and the Act 5 Geo. IV. e. 83, see. 21 And the actual question for decision is whether this latter 4 or, if not all of it, see. 21, extended to New South Wales, For, it did, the two Acts together contain a definition of an offenes, and provisions for its punishment. & 'The Act 5 Geo. LY. c. 83, after reciting that it was expedient to make further provision for the suppression of vagraney and for the punishment of idle and disorderly persons, rogues vagabonds in England, repealed all provisions theretofore mate relative to idle and disorderly persons, rogues and vagabond incorrigible rogues, or other vagrants in England, save as th inafter excepted. Sec. 3 enumerates six classes of persons who are to be deemed idle and disorderly persons: (1) Persons who are able wholly or partly to support themselves or their families and who refuse to do so, by reason whereof they or their fam become chargeable to a parish under the Poor Laws; (2) P improperly returning to and becoming chargeable under the Poot Laws in a parish from which they have been legally removed (8) unlicensed and unauthorized pedlars ; (4) common prostitutes
ndering in , . oe in public; (6) beggars with unauthorized certificates.
jeened rogues and vagabonds and are to be liable to imprison- at for a term not exceeding three months in the House of wrrection: (1) Idle and disorderly persons previously convicted cilxing such ; (2) fortune tellers ; (3) persons wandering abroad ni lodging in a barn or outhouse or deserted or unoecupied inilding or in the open air or under a tent or in a cart or wagon, "ot having any visible means of subsistence, and not giving a wood aeeount of themselves ; (4) persons publicly exposing inde- teat prints, &e.; (5) persons indecently exposing themselves in "jublic with intent to insult a female; (6) persons wandering throad endeavouring to obtain alms by the exhibition of wounds ordeformities ; (7) collectors of alms under false pretences ; (8) jesons deserting their wives or children who might be charge- ile to a parish ; (9) persons gaming or betting in public places ; " (10) persons having in their possession housebreaking implements 'ith intent to commit a felonious act; (11) persons found in _ildings or enclosed premises for an unlawful purpose ; (12) sus- 'peed persons or reputed thieves frequenting publie places with "intent to commit felony; (13) persons apprehended as idle and titonderly persons violently resisting apprehension and subse- nently convicted. Sec. 5 provides that persons (1) in custody 'titer conviction under the Act, or (2) committing an offence "ander see. 4 after a previo
conviction under that section, or (3) lntly resisting apprehension as rogues and vagabonds and absequently convicted shall be deemed incorrigible rogues, and lull be liable to be committed to the House of Correction till the tat Quarter Sessions, at which the Justices may sentence them q 'nprisonment with hard labour for twelve months with whip- 'tg See. 6 provides for the apprehension by any person thatever of offenders against the Act, and requires constables 'i Petee officers to apprehend them under penal consequences to themselves. See. 7 autho pehension of offenders, and sec. 8 the seizure by any person
Hihending another for an offence against the Act of his
Goods and for their search in the presence of a justice. < 4 enumerates thirteen classes of persons who are to be guar
public and behaving riotously or indecently ; (5) H.C. or A.
See. 9 provides for the due prosecution at Quarter s persons committed as incorrigible rogues. See. 19 authori search of lodging houses for suspected offenders, See, 14 g an appeal to Quarter Sessions to any person convieted under th Act, and authorizes his discharge from custody on giving sen to prosecute the appeal. Sec. 20 declares that every person vieted under the Act as an idle and disorderly person, or a5 4 rogue and vagabond, shall be deemed to be chargeable under the Poor Laws to the parish in which he resides. See. 21 pro that "whenever by any Act or Acts of Parliament now in fore it is directed that any person shall be punished as an idle ang disorderly person or as a rogue and vagabond or as an ineorigiy rogue for any offence specified in such Act or Acts and not herein before provided for by this Act. . . every such person be punished under the provisions powers and directions of this Act. It is obvious that many of the provisions of this Act quite inapplicable to New South Wales in the year 1828 0 such provisions those as to persons improperly causing burdens to be thrown upon parishes afford a good example. It is tended, however, that even if the provisions which create offe are inapplicable, sec. 21 should be read as incorporated with the Act 4 Geo. IV. ¢. 60, sec. 41, and that these two enactments together were applicable and not unsuitable to the circumstances of th Colony. See. 21, however, does not stand alone. If it applied, brought with it all the provisions as to punishment, ineludin, the right of a convicted offender to appeal to Quarter and the declaration that he should be chargeable to the parish in which he resides. Now, in 1828 there were no Courts of Quatte Sessions in New South Wales, although the establishment of suth Courts was authorized by the same Act 9 Geo. IV. ¢. 83. The appellant contends that the Act of 5 Geo. IV. did no extend to New South Wales, and further that, if any doult could have arisen on that point, it was set at rest by the Act o Ordinance 6 Wm. IV. No. 6. The preamble of that Act, whieh entitled "An Act for the prevention of vagrancy and for punishment of idle and disorderly persons rogues and vagtb and incorrigible rogues in the colony of New South Walé
veites that "it is expedient to make provision for the prevention "{fvagraney and for the punishment of idle and disorderly persons ndrogues and vagabonds in this Colony " - not that it is expedient jo nake "better" provision for that purpose. This language sug- that the legislature thought that there was no existing law {athe subject - a point, however, on which they may have been nistaken, The Act then proceeds to deal with the matter on the fins of the Act 5 Geo. IV. e 83, but with very important differ- aves. It begins with provisions requiring transported convicts "joreport themselves periodically at Petty Sessions, Sec. 2, eor- ding to see. 3 of the English Act, defines idle and disorderly , amongst whom are included transported conviets failing report themselves or failing to appear before a Justice when anmoned to give an account of their means of support, persons Indging or wandering with the black natives of the Colony, and filing to give a good account of their conduet to the satisfaction of ~ theJustiees, persons thrice convicted of drunkenness within twelve "nonths and behaving riotously or indecently in public, while it
saitsthe provisions as to persons whose conducteasts a charge upon. ~ thepatish and modifies some other definitions. Sees, 3 and 4 follow ielines of sees. 4 and 5 of the English Act with other differences. 12 gives an appeal to Courts of Quarter Sessions, which had ten been established in the Colony under an Act passed in 1829 -{10Ge0, IV. No. 7), The Act 6 Wm. IV. does not contain any finnal provisions analogous to see. 21 of tie English Act, which, indeed, were unnecessary if the legislature thought that the Tiglish laws as to rogues and vagabonds did not extend to the
inapplicable to a new country. Ii, therefore, it were neces- todecide the point, I should have no difficulty in holding 'ltt the general provisions of the Act 5 Geo. IV.¢. 83 did not snd to New South Wales. But, treating that point as nb, Tam disposed to accept the argument that the Act of 6 Ma IV, ought to be read either as a legislative declaration that
Provisions were not in foree, or as a codification of the law
on the subject in exercise of the power conferred by see, the Act 9 Geo. IV. ¢. 83 to declare whether that Statute was be deemed to extend to New South Wales," "or to make establish such limitations and modifications of its provisions might be deemed expedient," and as a consequent repeal by implication of the English Act. In either view, the general pre visions of the Act are not now in force in this State,
'The only remaining question for consideration is whether ss 21 of the Act 5 Geo. IV. ought to be held to be in foree. Por, if not, the provisions of sec. 41 of the Act of 4 Geo. IV. relating rogues and vagabonds are merely declaratory, and entail no penal consequences. The case of Attorney-General of New South Wa v. Love (1) referred to by the Supreme Court in Anderson y, di Nam (2), which affirmed the view on which Pring J. founded judgment now under appeal, establishes that if the general provi sions ofu Statute were not unsuitable to theconditions of the Colon the mere fact that some minor or severable provisions could not
inapplicable, it would seem to follow that it is not competent select a particular provision of the Statute, whieh if it stood might be applicable, and to say that it is therefore applicall I should have great difficulty in coming to this conclusion,
But, apart from this difficulty, I am confronted by the further 'one that a person convicted under the Act of 5 Geo. IV. entitled in England to appeal to Quarter Sessions, and to re from custody pending the appeal on giving the preseribed seearit In 1828 no such privilege was available to a person in Nex South Wales. It is true that Quarter Sessions were established in the Colony in 1830 under the Act 10 Geo. IV. No. 7, but th provisions of sec. 21, if they came into force at all, came force at the passing of the Act 9 Geo. 1V. ¢. 83, in 1828. The:
(see. 2) that such Courts should have power and authority,to cognizance of all matters and things cognizable in Courts (1) (1898) A.C., 679. (2) (1904) 4 SB. (N.S.W) eo
ter Sessions in England so far as the cireumstances and con- Gis ofthe Colony should require and admit. In the interval
«the passing of this Act, which was in fact short but might fave teen of indefinite duration, offenders convieted under secs, gland 4of the Act of 5 Geo. TV. would have been deprived of 'oyright of appeal. This is, in my judgment, of itself suficient toshow that the provisions of see. 21 applying the penal provisions afthe Act to offences created under other Statntes were not suit- tile to the circumstanees of the Colony. This opinion in no way "conflicts with the ease of Attorney-General v. Edgley (1),in which the question whether the provisions of 42 Geo. IT. e. 119 sec. 2 'qsto pmishing Keepers of lotteries as rogues and vagabonds was wtraised, Neither this point, which, in my judgment, is fatal to ~ the respondent's contention, nor the local Act of 6 Wm. IV. was Hought to the notice of the Court in Mitchell v. Ah King (2). Ifthey had been, I cannot help thinking that the Court would we come to a different conclusion in that case. I think, there- " fore, that the appeal should be allowed.
Barton J. This case is one of large importance, and it will be ~ no waste of time to deal at some length with the considerations 'involved in the matter at issue. [His Honor then stated the facts walready set out and continued.] As will be seen, the Act 4 Geo. 'TV.¢.60is not the only one to be considered in solving the question. By the 24th section of 9 Geo. IV. c. 83, often ealled the New South 'Wales Act, the Jaws and Statutes in foree in England at the 'Jassing of the Act (25th July, 1828) are to be "applied in the alministration of justice in the Courts of New South Wales and Van Diemen's land respectively so far as the same can be applied," and in each Colony, "as often as any doubt shall arise as to the plication of any such laws or Statutes . . . itshall be lawful orthe Governor . . . by and with the advice of the Legis- hitiveCouneil . . . by ordinances to be by them for that made to declare whether such laws or Statutes shall be 'deemed to extend to . and to be in foree within the same 'tomake and establish such limitations and modifications of 'tysuch laws and Statutes . . . asmay be deemed expedient
any such ordinanees shall be actually made it shall be the 4 of the said Supreme Court as often as any such doubts shall upon the trial of any information or action or upon any proceeding before them to adjudge and decide as to the ap tion of any such laws or Statutes . . . " Inthe ala
"ig in foree" are of the same value in this connection, for Teannot discover any difference in their effect by reference to any authori or on any ground of reason. They are used interchangeably Judges, and whether we hold that an English Statute "can be applied" in a Colony, or that it "extends" thereto, or that it's in foree " therein, the result is precisely the same. Also, I thin it is idle to say of a Statute that it "can be applied" unlessit is immediately enforceable on the happening of facts within its mean- ing. In the next place the application, extension or enforcemen must be reasonable, or as it is put in Forsyth's Cases and Opinions, at p. 20, "all Acts which by reasonable construction must be supposed to apply to the Colonies, whether passed before or af the acquisition " [that is, passed until a Legislative Assembly i constituted within them] "will be considered obligatory upon them." In Jer v. MeKinney (1), it was held that the Statute o Mortmain did not extend to British Honduras, and that its pm visions did not satisfy the condition preseribed by the local A and Ordinances, of applicability to the Colony, although th Statute is included in the description of laws introduced thereby. In giving the judgment of the Judicial Committee of the Privy Council, which included with him Lords Watson and Fitz and Sir Wm. Grove, Lord Hobhouse discussed the meaning of words "in so far as they are applicable or can be applied, in the Act of the local Assembly under which it was conten that the Statute of Mortmain prevailed in the Colony. He (2): "Their Lordships read the words 'can be' as meaning" reasonably be,' agreeing herein with Lord Justice Knight who in Whicker v. Hume (3) placed that construction up similar words in the New South Wales Act." He added: (4) "lt
(1) 14 App. Cas., 7. (3) 7 HLL.C., 1243 1DM.e og (2) 14 App. Cas., 77, at p. 81. (8) 1d App. Gas., 77, at p 8%
General v. Stewrt (1), with reference to Granada, Sir illam Grant, in Whicker v. Hume (2), with reference to New th Wales, Lord Romilly at the Rolls, Lord Justices Knight. "prwe and Cranucorth in the Court of Appeal, Lord Chelmsford, wi Granworth, and Lord Wensleydale in the House of Lords; "«Ildecided that the Statute was framed for reasons affecting the jors and society of England, and not for reasons applying to joer Colony." In other words, they all held that the Act 'fidnot extend to the Colony unless it could "reasonably be "gpliei" and this the conditions of the Colony forbade, because twasfounded on reasons which were peculiar to England in 'vir applieation, and which had no reference to the conditions ofan infant settlement. In the third place, unless a statutory jsionextended to New South Wales immediately on the passing 'of the New South Wales Act, as I shall now call the 9 Geo. IV. ¢. 'Iam of opinion that it never came into foree here at all. In 1839, in the ease of Ex parte Lyons, In re Wilson (3), the Supreme 'Court held unanimously that the Bankrupt Law, 6 Geo. IV.e. 16, 'isnot in force under the operation of the New South Wales Act, we. Itwas argued at the Bar that the Bankrupt Law in "question, though perhaps it could not have been applied when "that Act was passed, might yet be in force in 1839 when the case musdecided, In his judgment, at pp. 152-83, Stephen J., afterwards "Sir Alfred Stephen C.J., said that he must at once express his tisent from that position. "The question," he said, "whether a prticular Statute is in force, may be determined, as I apprehend, with reference to the date of the New South Wales Act alone.
then eapable of application were to be introduced, either wh or in part, as that body might determine. So that if the rupt Law could not have been applied in 1828, it cannot, to my opinion, be in force now." I adopt completely this opinion of Sir Alfred Stephen, 'The question, then, is whether on the passage of the New Soo
bbe supposed so to apply, in the sense of being then presently en. forceable to punish the sale of lottery tickets. The Act 4 Gey TV. c. 60, passed in England in 1823, is intituled "An Ach
Lotteries." Most of its provisions relate only to the purpose, declared: and for that purpose and for carrying out the Gove ment lotteries authorized, elaborate machinery is provided, there are three or four sections, including sec. 41, which demand attention on the question now under appeal. Before considering them it is well to remember that private, as distinct from Goyem- ment lotteries, had long been the subject of prohibition in England. The Act 10 & 11 Will. IIL. ¢. 17, declares lotteries to be a publi nuisance, and forbids the keeping open of any lottery after 29th December, 1699. Anyone transgressing this prohibition was to forfeit for each offence £500, to be recovered by information, bill, plaint or action at law in any of His Majesty's Courts at W minster: while those who played at such lotteries were to forfeit £20, recoverable in like manner. Several Acts were passed fron time to time for the repression of the evil. On the other hand, the raising of money by lottery in aid of the public revenue commended itself to the Exchequer, and several acts were passed sanetioning this expedient on occasion. Not only were private lotteries found immoral, but their competition was inconvenient, as also was that of foreign lotteries, and there are Statutes which at one stroke authorize Government lotteries and provide for the simultaneous repression of private lotteries and "littl: goes," and of the sale of tickets in foreign lotteries, and for the repression of the publication of either. The first Act relating closely to foreign lotteries was the 9 Geo. I. e. 19, passed in 1722
'The Statute 1 & 2 Geo. LV. ¢. 120, intituled "an Aet for grant
fis Majesty a sum of money to be raised by Lotteries, Mt other Act of 3 Geo. 1V. ¢. 101, with an identical title, are itsome interest as showing the origin of the section under which 'juan Vick was prosecuted. Sec. 38 of the former Act is identical ithe 41 of 4 Geo. IV. c. 60, with the exception that it says rating about foreign lotteries: while see. 39 of 3 Geo. IV. e. 101, ja terms identical with sec. 41 of the Act of 1823. Neither of linge two Statutes makes any provision for the permaneney of tie enactments contained in see. 38 of the one and see, 39 of the alier, and it is in sec. 19 of the Act now in question that we find 'och provision. So far as is material to this appeal, it reads s: "And whereas it may be expedient to discontinue raising noney for the public service by way of lottery after the sale of te tickets authorized by this Act and in that case it will be ueeesary to continue in force such parts of this Act as will be 'meesary to repress unlawful insurance in little-goes, and private "bites... be it therefore enacted that from and after the " imawing of the lottery authorized by this Act and the matters 'relating thereto the clauses herein contained relative to the sup- -wesion of illegal lotteries and insurance therein. . . shall 'main in full foree and virtue notwithstanding other powers 'fiten by this Act may have ceased and determined." It is argued for the appellant, notwithstanding the strong
worls used to give permanency to the clauses relative to "the "suppression of illegal lotteries and insurance therein" that the mrovisions of sec. 41, which I am about to cite, were not made ment by sec. 19, but that "the clauses relative to the
Now that section, so far as it is material, "If any person or persons shall sell any ticket,
or share of any ticket chance or share . . . in any Iitery except such lottery as shall be authorized" by this or 'tmeother Act of Parliament . . . "such person shall for 'ary such offence forfeit and pay the sum of £50, and shall also 'edeemed a rogue and vagabond, and shall be punished as such 'the manner hereinafter directed."
'The contention is that "the clauses relative to the suppression ilegal lotteries," as the term is used in sec. 19 for the purpose
of making such provisions permanent, do not include the provis in see. 41 for making illegal the selling of "any ticket, change gs
this or some other Act of Parliament." I take it that the « jllegal lottery " as used in the one section completely eovers anj includes the lotteries mentioned in the other, not authorized iy the 4 Geo. IV. c. 60 or some other Act of Parliament, and there. fore that the enactment under which the appellant was proseeuted was clearly made permanent in England by sec. 19. As to the legal consequences prescribed by the Act for the selling of tig in illegal lotteries, they are contained in secs. 62 and 67. former makes pecuniary penalties for any offence against the Act, except where otherwise directed, go to the use of the King: and they can be recovered on behalf of the Crown only in the thanner therein directed, namely "in the name of His Majesty Attorney-General in the Court of Exchequer at Westminster if such offence shall be committed in England; in the name of His Majesty's Attorney-General in the Court of Exchequer at Dublin if such offence shall be committed in Ireland; or in the name of His Majesty's Advocate-General in the Court of Exchequer in Scotland if such offence shall be committed in Scotland." It argued that this provision is inapplicable because (1) it excludesall locality of the offence except England, Ireland and Scotland, (2) there was no Court of Exchequer in New South Wales in whith tosue. But I take it that the provision operates merely to prevent penalties being sued for outside that part of the veal where offence was committed. We are only concerned with "laws Statutes in foree within the realm of England" as this was, it is applicable if not unsuitable to the local conditions of thet 'There was here an Attorney-General, and the Supreme Court New South Wales was invested in New South Wales with all jurisdietion which the Courts of Queen's Bench, Common and Exchequer possessed in England. I therefore think that objection of the appellant in this respect fails. A similar provision existed in another Lottery Suppression Act, 42 Geo. III. ¢.119,a
that Act was in my judgment rightly held to be in foree in South Wales in the case of the Attorney-General v. Bigley(l
"fied to sae in the Supreme Court here for a pecuniary penalty 'hich under that Act was recoverable in the Court of Exchequer suit of the Attorney-General. "gill dealing with the Act 4 Geo. IV. e. 60, sec. 67 preseribes the "sarishment for offences where the offender is convicted before Jiges andl adjudged a rogue and vagabond. In such cases the "'stices are to order the offender to be sent to the House of ection for not more than six months and not less than one auth, with a diseretion to the justices to order whipping where jy offender has been convicted of a like offence under this or any former Act. "Now I know of nothing which could make the enactment of we 41 against selling lottery tickets unsuitable to the conditions 'ifthe Colony at the time the New South Wales Act was passed. But the difficulty arises in considering whether the enactment then enforceable It was not and is not enforceable unless a Trach of it eould be punished under some law in foree in New Soth Wales. The Act 5 Geo. IV. e. 83, " An Aet for the punish- 'ntut of idle and disorderly persons and rogues and vagabonds in part of Great Britain called England," was passed in 1824. he Chief Justice has given an exhaustive analysis of its pro- "tions, and I need not attempt to follow him over that ground, nthe case of Mitchell v. Ah King (1), the question was whether fe is in foree in New South Wales, and the Supreme Court 'uid it to be so, and that on a conviction for keeping a lottery 'wiler 42 Geo. IIL. e. 119 (previously, as we have seen, held to be foree, at least for certain purposes, in the Attorney-General v. ley (2)), a magistrate had acted rightly in awarding to the iifendant a sentence under the 5 Geo. IV. c. 83. 'This Act the held to be also in force. Sir Frederick Darley CJ., with tom Owen J. and @. B. Simpson J. concurred, said in giving ent: "If we were to hold that 5 Geo. IV. was not in force, 'should nullify our former decision that 42 Geo. IIT, ¢. 119 is in Hmeinthe Colony, because 5 Geo. LV. ¢. 83 provides for the punish- Rat of persons who keep lotteries in defiance of 42 Geo. III. ¢ MM" Temay be observed that in the ease of Attorney-General WAUNSW. LR,, 68. (2) 9N.S.W. LR, 157.
the Attomey-General of New South Wales was held en- H. ©. or A.
v. Eidgley (1), it was only necessary to decide that a pecuniy ee for keeping a lottery was recoverable in the Supra, x Court at the suit of the Attorney-General of New South Wi and the terms of the second section of the last mentioned seem to make this quite clear, for that portion of the section not affected by anything in the Act 5 Geo. IV. ¢. 83, But i offender, declared in another part of the same section to be, rogue and vagabond, was from 1824 punishable as such i England under 5 Geo. IV. c. 83 only, and even if that Act or th punishment sections of it are not in force here, it is that pa only of the section which makes him punishable as a 'Yogue an vagabond that could not be made effective in New South We So that the correctness of Attorney-General v. Hdgley would no I suggest with respect, have been affected if the decision in Mitchell v. Ah King (2) had been in the defendant's favour, Is then a person declared by 4 Geo. IV. ¢. 60 to bea rogue ar vagabond punishable? It is necessary in order to answer thi question to examine some of the provisions of the Act 5 Geo IV, ¢. 83. As to whether that Act is enforceable in New South Wales at all, I share the doubts expressed by the Chief Justice, and similar reasons. But in my view of this case it is not nece to go so far as to hold the Act of 5 Geo, IV. inapplicable Assuming that it came into foree by virtue of the New South
England." There are exceptions to the repeal which do nd require notice here. Sec. 3 provides that " wherever by any
now in foree it is directed that any person shall punished es . . . a rogue and vagabond offence specified in such Act, and not hereinbefore provided fn in this Act" (these words include the present case) "in every st ease. . . every such person shall be punished under fl provisions, powers and directions of this Act." Sec. 4 provi the punishment for all rogues and vagabonds, viz., committs the house of correction for any time not exceeding three mom with hard labour. See. 14 enacts that "any person aggrieved
itof sessions, in or concerning the execution of this Act, may ppeal to the next General or.Quarter Sessions for the county, iio, division or place in and for which such justice or justices shall have so acted," and on giving the written notice and security 'bed, he is to be discharged out of custody, and such Court General or Quarter Sessions is to hear and determine his appeal
Yow, if 5 Geo. IV. ¢. 83 did not come into force in New South 'Wales, it had nevertheless repealed the provisions for punishment: smogue and vagabond of the offender under that part of 4 Geo. TV.c.60, sec. 41 with which we are dealing, so that in July, 1828 stpart of the Act, not being any longer in force in England, was 'nntenforceable at all in New South Wales by way of punishment; sui, even if 5 Geo. IV. c. 83 did come into force here, there was 'n July, 1828, no Court of General or Quarter Sessions in the '(ilony to which a person convicted of selling a lottery ticket 'unier see. 41, and by necessary consequence declared a rogue and ragabond, could have appealed. We cannot hold that the punish- went provisions of the 5 Geo. IV. are enforceable without the 'orrlative right of appeal to Quarter Sessions granted by that 'Ac. 'They must stand or fall together, and to hold that an dfitder is linble to the whole foree of punishment given by the "Att without being able to clear himself by way of the appeal which the Act purported to give at the same time and as part of 'the same scheme, would be out of all reason. 'True, the New South Wales Act gave in its 17th section a power to the local Tigsluture to institute Courts of General and Quarter Sessions with the powers and jurisdiction of the like Courts in England, so 4s the circumstances of the Colony allowed. But when the New th Wales Act, and with it, er hypothesi, the applicable part the 4st section of 4 Geo. IV. e. 60, and the applicable parts of Geo, IV. ¢. $3, eame into force here, there were no Courts of eral and Quarter Sessions. Such Courts were established in 829 by the local Act 10 Geo, IV, No. 7, in exercise of the power ted, but a lapse of about a year took place, and for the purpose the legal considerations at present involved, that lapse was amount to a much longer one, or toa complete omission on the
et or determination of any justice or justices of the peace H.C. or A. 1905.
H.C. or A. part of the local legislature to create such Courts, For, ;
have endeavoured to show above in citing the case of Ee, Lyons (1), those laws only should be compulsorily applied at the passing of the New South Wales Act were appliat enforceable. It was urged that the subsequent creation of Gy of Quarter Sessions cured the defect, but if I am right in age with Sin Alfred Stephen's opinion in the last cited case, the d was incurable. At the time, therefore, that the New South Waly Act came into foree, the 5 Geo. IV. e. 83, could not apply to make this breach of the 4 Geo. IV. c. 60, punishable, for want of a vita part of the machinery appropriate to its enforcement. To np the words of Sir Francis Forbes C.J.,im Reg. v. Maloney ()in which case the English Marriage Act, 4 Geo. IV. c. 76, was eld not to be in force in New South Wales: " It is apparent, then that some of the most material requisites of the Act are enti defective in this Colony - that it wants the machinery necessa to its operation - that, in fact, it cannot be enforced." Accordingly, I am of opinion that the enactment, under which the appellant was prosecuted, is not in force in New South Wale, and that the appeal should be upheld.
O'Connor J. The question for determination is whether thr provisions of 4 Geo. IV. c. 60 relative to selling tickets in an illegsl lottery ean be enforeed by summary conviction in New South Wales. I propose to consider first to what extent 4 Geo. IV.¢ i) was in foree in England in 1828 when the New South Wale Constitution Act (9 Geo. IV. ¢. 83) came into operation, secontly, the principle upon which the latter Act is to be construed, al thirdly, to what extent, having regard to those prineiples, the At under which the offence is charged can be enforced in New South Wales. The 9 Geo. IV. c. 60 was the last of a series of Status beginning in 1710 with 9 Anne ec. 6, by which state lotteris for the purposes of revenue were established and regulated. Som years before, namely, in 1699, the Act of 10 William ILe% declared lotteries to be a common and public nuisance which was punishable as a misdemeanour, and prohibited persons keeping or playing at lotteries, rendering offenders liable to heavy peti
reeverable in any of His Majesty's Courts at Westminister also "to be prosecuted as common rogues according to the nies in that case made and provided." Except therefore as fp the publi lotteries authorized for revenue purposes under thew Acts the keeping of lotteries has at least since 1699 been 'woflnce against the laws of England. In 1823 when the last {the Government Revenue Lotteries Acts, 9 Geo, TV. e. 60, was 'used it was evidently felt that the time was approaching when this expedient for raising revenue could no longer be used, and it jad become apparent that some of the provisions originally inverted for the protection of this method of raising revenue wight be usefully made permanent as part of the general law sginst lotteries. 'The main purpose of the Act being the raising of revenue by the particular lotiery thereby authorized, the grater portion of its sections were necessarily temporary in their operation. It became therefore necessary to declare what ortions should be permanent, and the first important question in 'the controversy between the appellant and the respondent is "whether the provision sought to be enforced in this prosecution 'samongst those declared to be permanent. See. 41, under which the appellant is charged, enacts that "if any person : Sullsell any tickets . . . . inanylottery. . . . except sihas are or shall be authorized by this or some other Act of 'Putinmenttobesold . . . . such person . .. . shall for very such offence forfeit and pay the sum of £50 and shall ilo be deemed a rogue and vagabond and shall be punished as -surh in the manner hereafter directed." The prosecutor alleges, _tid'the appellant denies, that the portions of the section above 'footed have been made permanent. The words of see. 19, which tkelares the parts of the Act which are to be permanent are, in 'far as material, as follows : - " And whereas it may be expedient todiseontinue raising money for the public service by way of lotery . . . and in that ease it will be necessary to continue Inforee such parts of this Act as will be necessary to repress tuliwful insurances in Little Goes and private lotteries and pre- 'atthe sale and publishing proposals for the sale of foreign loery tickets within the United Kingdom &e. . . . be it therefore enacted that from and after the drawing of the lottery
authorized by this Act, and the matters relating thereto t clause herein contained relative to the suppression of ill lotteries and insurance therein and to the preventing the sale publishing proposals for the sale of foreign lottery tickets
which are "the clauses relative to the suppression of ilk lotteries"? There are none directly enacting that unauthorz lotteries shall be suppressed, nor declaring such iotteries common and public nuisances, as was done by 42 Geo. TIL . 119, one of the Acts mentioned in sec. 50. But such a section as 41 is quiteas effective in the suppression of an unauthorized lottery as if it had declared the lottery illegal, especially when taken i connection with sec. 61 which renders persons employing othen in such transactions, and every person aiding or assisting them liable to heavy penalties, Grammatically the word "supp sion" would include all such means of suppression, and it difficult to see how any effect can be given to the expression in sec. 19 unless it is to be read as referring to those section which aim at the suppression of illegal lotteries by making the sale of tickets a punishable offence. This view is sup by the case of Hull v. McWilliam (1), in which, although the point was not taken, the section was treated as in force in regan to the offence of publishing a proposal for the sale of tickets i an illegal lottery, Sec. 41 therefore being a permanent enad ment applying to all illegal lotteries and making the sellin tickets an offence, let us see how under the Act that offence was punishable, It was punishable in two ways. First by a pensliy of £50, and secondly by subjecting the offender to be deemed rogue and vagabond and punished as such on summary conv: tion, 'The penalty is to be sued for under the provisions of se 62 and not otherwise. By that section the proceeding for th penalty must be in the name of the Attorney-General, and mut take place in the Court of Exchequer at Westminister. In so far as the punishment by penalty recoverable by action is concer I think it is abundantly clear that in 1828 sec. 41 could hav been enforeed in England by action in the Court of Exchequer
another Statute had by that time become necessary. By the vmvisions of 4 Geo. IV. c. 60, an offender under see. 41 when pro- weed against before justices was dealt with under see. 67, which jovied that he should be adjudged rogue and vagabond, and tesent to the house of correction for a term not less than one or more than six months. There was an additional punishment asecond offence, and it was expressly provided that the pro- wedings should not be subject to appeal. But in the following 'year, 1824, an Act was passed, 5 Geo. IV. c. 83, consolidating and inending the laws relating to the punishment of idle and disorderly onsand rogues and yagabonds. It repealed all sections dealing ith rogues and vagabonds in the various Acts in which offenders wre to be adjudged rogues and vagabonds for purposes of punish- and provided by sec. 21 that, wherever under any Act
ded. Sec, 14 gives to every person convicted under the Abtaright of appeal to the next Court of General or Quarter
fiat surety to apply for his discharge from custody pending hearing of the appeal. 'To sum up the position in 1828 in 'Tngland: - A person selling lottery tickets in contravention of *4lof4 Geo. IV. c. 60 might at the option of the prosecutor Proceeded against for a penalty of £50 by the Attorney- waeral in the Court of Exchequer - or he might be eharged Hore justices with that offence and proceeded against under 5 fo IV,¢ 83 for conviction as a rogue and vagabond. The iimee was under 4 Geo. IV. ¢. 60, but the proceedings had to be Natel and earried on under 5 Geo. LY. c. 83, which gave the Muler a rightof appeal to Quurter Sessions, and a right to apply
for discharge from custody pending his appeal if he gave pre and sufficient notices and recognizances under the Ach
Such being the law of England in 1828, to what extent if, all, has that law become in force in New South Wales? Mh answer to that question depends largely on the proper interpre tion to be placed upon see. 24 of the New South Wales Cosi tion Act (9 Geo. IV. ¢. 83).
That section has been the subject of many decisions in State, and in the Court of Appeal in England. T do not in to refer to them in detail as I entirely concur in the views of learned brother the Chief Justice in regard to their effect, Reading the section in the light of these authorities, it would appear oy to be well established that out of the body of laws in force England at the time of the commencement of the Act 9 Geo ¢. 83, only those came into force in New South Wales which conli at that time be reasonably applied in the existing cireumstane of the Colony. It would also appear to have been established tht the question for the consideration of the Court always is, mt whether the English law can be reasonably applied at the when the question arises for decision, but whether the law can into foree at the time of the commencement of 9 Geo. IV.¢.83b reason of its being a law which could at that time be reasonably applied in this State.
It cannot, I think, be doubted that the English laws prohi lotteries came into force in New South Wales on the passing 9 Geo. IV. ¢. 88. They were, like the laws against gambling wagering, of general application, and intended to safeguard th moral well-being of the community,and there would appear tol no reason why they should not have been in foree from the beginning of the settlement. The Lotteries Act, 42 Geo. Me 119, has been expressly held to be in foree in New South Wale in the case of the Attorney-General v. Edgly (1), and what s James Martin in delivering judgment says of that Statute m
of the unwary, we can see nothing in the Act or the cireumstanes
af the Colony which would render it inapplicable, and we are neirdingly of opinion that it is now in force in New South aes" Lt seems to follow that the law enacted in see. 41 of the "46:0 1V. e. 60, prohibiting the sale of tickets in illegal lotteries vould be equally applicable here. But before the law authorizing « proseeution of the offence ean be declared in force we must: be -atised that the procedure preseribed to be followed could have "wen reasonably applied here in 1828, Under see. 41 the offence "way be dealt with in the two ways which I have explained in the tlie part of this judgment. I can see no reason why the suit fr penalties under see. 41 should not have been maintained here atthat period. It is true that sec. 62 provides that the action inst be in the name of the King's Attorney-General, and, in the case of the offence being committed in England, must be brought in the Court of Exchequer at Westminster, But in 1823 the
ch the Courts of King's
the punishment of the offence by proceedings before justices
not in force there at that time, and cannot be in foree now, was urged by Dr. Cullen that the English Vagrant Act could gy be applied in New South Wales because the whole system of dealing with rogues and vagabonds was inseparably conta with the English Poor Law System, which from its local nat could not be applied out of England. No doubt the punishes of rogues and vagabonds goes back to the early period when eh district and parish was responsible for the maintenance of i labourers, when stringent labour laws compelled every man work, and treated persons wandering away from their oyp parishes without work as being guilty of the offence of ben "rogues and vagabonds." But in the series of Statutes, from Eliz. ¢. 5, one of the earliest, dealing with "Roges Vacaboun and sturdy Beggers" down to that under consideration, the use the phrase "rogues and vagabonds" had changed considerably, persons had become liable to be adjudged "rogues and vagabonis for a variety of offences having no connection whatever n mendicaney, poverty, or the poor laws. In other words the ph as used at the time of 5 Geo. IV. c. 83 had come to mean nothin more than a measure of punishment to be attached to partiula offences. We find in that Act a great variety of offences dealt wi
the English poor law system, but very many others in which the offenders were made liable to be declared rogues and vagabonts, and to be punished accordingly, for offences which are in no™ connected with mendicancy or the poor laws. Those portions of the Act which arise out of and depend upon the English p law system would not of course be capable of being reason applied here. On the other hand, although it is unnecessary @ decide the matter, I can see no reason why sec. 21, whieh is q general in its nature and unconnected with any English locale» tions, should not have been applied here in 1828, nor why in so far as it authorizes punishment of offences under sé * should not beequally applicable. It has also been urged thal New South Wales Vagrant Act, 6 Will. IV. No. 6, is either "ordinance" within the meaning of see. 24 of the 9 Geo. IV. 6% establishing the limitations and modifications under which 1
Yagraney Law is to be applied, or that its existence is A tent with the English Act being in force. An examination jovever of the Acb will show that it is in no sense a declaration tothe English law. Nor does it purport to be an exhaustive 'ufnition of all the cases in which an offender may be convieted ofbeinga rogueand vagabond. Such being its scope and provisions, {ho not see why it should shut out those portions of the English 'Act dealing with cases for which it does not provide. However efatal nature of the next objection makes it unnecessary to 'decide that point.
AsThave already pointed out, the offence of selling a ticket in aillegal lottery was punishable in England on conviction under
did not exist in all its completeness. For instanee, it has decided that the law of distress and replevin as reg power of seizing, detaining, and replevying of goods is in fore ix New South Wales: Slapp v. Webb (1), althongh there was mp in 1828 any Sheriff's County Court, and the offie, duty ay jurisdiction of the Sheriff differed widely from that of the She in England. But there were Courts, procedure and officers aval. able by which in its main features the principles of replevin could be carried out. In the case under consideration there was no Court, and no procedure, by which in New South Wales « convietion under sec. 41 could have been examined as in an appeal to Quarter Sessions. It seems to me that we cannot separate the conviction and punishment from the right of appeal, and as there was in New South Wales in 1828 no machinery under which the right of appeal could be exercised, I tind it impossible to hold that the provisions as to conviction and punish- ment could be reasonably applied. As the 5 Geo. IV.¢. 83 cannot be applied, the provisions of see. 41 of 4 Geo. LV. c. 60, in so faras they relate to proceedings before justices, become inapplicable, Be: fore coming to this conclusion I have given careful consideration to the case of Mitchell v. Ah King (2), which decides that the English Vagrant Act 5 Geo. IV. c. 83 is in force here. It is evident from the report of that case that the particular objection, which is in my opinion fatal, was not brought to the attention of the Supreme Court. Neither was it brought to the notice of the Court in Anderson v. Ah Nam (3), the case on which Mr. Justice Pris based his judgment in this ease. On the whole matter, therefor Thave come to the conclusion that, although 4 Geo. IV. ¢. 60 i in foree in New South Wales for the purposes of an action for penalties in the name of the Attorney-General, it is not in fo for the purposes of a proceeding before magistrates to adj the offender a "rogue and vagabond." It follows in my opinion that the magistrate was right in dismissing the ease on the gro stated by him, and that the judgment of Mr. Justice Pring the contrary should be set aside, and the appeal allowed. 4
Salctrs for the appellant, Crick ce Carroll H.C. oF A. Giietors for the respondent, Zhe Crown Solicitor of New 1%
)\AVID ELLIOT WILKIE : : 5 . RESPONDENT. PLAINTIFF,
Prucice - Appeal book - What Documents to be inserted - Rules of High Court 1903, 44. ¢, op A. Part IL, sec. IV., rr. M1, 15. 1905.
Tn preparing che appeal book for an appeal from the Supreme Court of a = State, the appellant is not required by the Rules of the High Court 1903, Part ~ Pra farch 7
IL, see, IV., rt. 11, 15, to include all the documentary evidence, but should include such documents as he thinks necessary. 'The respondent may apply Grimth 0... tothe Court to have inserted any documents which he thinks are necessary, Garton and
than action brought by David Elliot Wilkie, against Daniel Wilkie, Alexander McCalla, and John Creuze Hingston Ogier, the itare of which it is not necessary to state as the action was 'absequently settled, judgment was given by the Full Court in favour of the plaintiff. (Sve [1905] V.LR., 278; 26 A.L'T., 133).
The defendants Daniel Wilkie, and Ogier each appealed to the h Court.
_ Schutt for the appellant Daniel Wilkie asked the Court whether Mas necessary under the Rules of the High Court 1903, Part IL, WV, rr 11, 15 (as amended by Rules of Court Oct. 12th, 1903), the appellant to set out in the appeal book the whole of the