Quan Yick v Hinds [1905] HCA 10

Quan Yick v Hinds [1905] HCA 10 - HCA 1905 case summary — Zoe

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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 It is applicable here and has never been repealed or declared not to be in force under 9 io.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certain classes of oftenders altogether new to the law, and etuliar to local conditions, and cannot be said to have repealed the English law as to one particular class, merely because it is slent on that subject.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

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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

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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.

Teannot conceive that we are to determine the question by nice inquiries from time to time, as to the progress made by the Colony, inwealth or otherwise: . . . . . . . . Whatever excep- tions the rule may or may not admit of, there seems no ground for holding that the question of applicability was to have reference tothe future, On the contrary, the meaning seems to me plain; that those laws only should compulsorily be applied which then, atthe passing of that Act, could be applied. For the future, as I Coneeive, a local legislature was created; by which, Statutes not

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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

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"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.

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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

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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

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