High Court of Australia|1927-12-10|Before: Starke JJ

Russell v Bates [1927] HCA 56; (1927) 40 CLR 209 (10 December 1927)

Russell Informant, Appellant; and Bates and Others Defendants, Respondents.

On appeal from the Supreme Court of New South Wales.

Weigall K.C., S.-G. for N.S.W. (with him E. W. Street), for the appellant.

Evatt. (with him Clive Evatt), for the respondents.

The respondents were arrested under a special warrant issued pursuant to the Gaming and Betting Act 1912, sec. 40, and were brought before a Stipendiary Magistrate. The respondents Albert Bates and Nellie Isabel Bates were charged together with using a house as a common gaming house, and the respondent Saunderson was charged separately for that he was found in such house without lawful excuse. The Stipendiary Magistrate, by consent, heard both charges together and convicted the respondents. The respondents then appealed to Quarter Sessions and the learned Chairman stated a case for the determination of the Supreme Court of New South Wales. The question submitted by this case was answered in the Supreme Court by declaring "that as the Magistrate had no jurisdiction to hear the cases together the proceedings before such Magistrate were a nullity, and there was consequently no adjudication from which to appeal to the said Court of Quarter Sessions." Against this determination an appeal has been brought to this Court by special leave. The learned Judges of the Supreme Court were of opinion that the question submitted for their determination was governed by the decisions in R. v. Crane[1] and in R. v. Dennis[2]. We do not think it necessary to decide whether the Magistrate had, or had not, jurisdiction to hear these cases together, for we are unable to agree with the conclusion that if there was no jurisdiction there was no adjudication from which an appeal lay to the Court of Quarter Sessions; Crane's Case is, we think, a decisive authority to the contrary. It is desirable, however, to say that the cases of R. v. Biggins[3] and R. v. Justices of Staffordshire[4] will require consideration if the question of the jurisdiction of a magistrate to hear cases together by consent of the parties hereafter becomes of importance. The Magistrate had jurisdiction over the charges laid against the respondents and, even if what took place before him was no trial at all or a mistrial, nevertheless, to adapt the words of Lord Sumner, in Crane v. Public Prosecutor[5], the respondents were convicted and to all appearances convicted on the charges laid against them. The Justices Act 1902, sec. 122, provides that "every person who for any offence has by the conviction or order of a justice ... been adjudged to be imprisoned ... or to pay any fine ... may appeal to a Court of Quarter Sessions against such conviction. ..." Those words, to use Lord Atkinson's language in Crane v. Public Prosecutor[6], "cannot mean validly convicted, otherwise the statute would be futile and unworkable." "The very purpose" for which the appeal is given is "to consider whether the convictions of persons who had, in fact, been convicted were valid or the contrary, and to deal with them accordingly." Consequently, there was an adjudication from which an appeal lay to the Court of Quarter Sessions. The duty of the Court of Quarter Sessions was to determine the matter of the appeals and by its order confirm, quash, set aside, vary or reduce the conviction or sentence as to the Court seemed just. The word "quash" in sec. 125 is unlimited and confers the power which a superior Court could on certiorari exercise in respect of a conviction made without jurisdiction. The other words confer power beyond that exercisable on certiorari and include complete authority to determine the whole matter.

It has long been held in New South Wales that the appeal is by way of rehearing (cf. Sweeney v. Fitzhardinge[7]). The learned Chairman of Quarter Sessions held, however, that he had authority to hear the cases together, that is to say, to hear the charge against Albert Bates and Nellie Isabel Bates together with the charge against Saunderson. All the respondents objected to the learned Chairman so proceeding and gave no consent to his so doing. It would be quite irregular in law for him so to proceed without such consent and, if he so proceeded, a mistrial would result. We do not consider it necessary in these cases to determine whether he would have any jurisdiction so to proceed in case the respondents consented to that course (again, see R. v. Biggins[8] and R. v. Justices of Staffordshire[9]).

The question stated in the case should be answered as follows: That the Court of Quarter Sessions has jurisdiction to hear the appeals but that it should not hear the appeal of Albert Bates and Nellie Isabel Bates together with the appeal of William Robert Saunderson if any of the said respondents object thereto.

So far as argument has been addressed to us, I concur with my learned brothers that the Court of Quarter Sessions had jurisdiction to hear the appeal, and for the reasons stated by them. Assuming that the Stipendiary Magistrate was properly seised of the charges, and assuming that he improperly allowed the charges to be tried together, it is for Quarter Sessions to put him right. The proceedings before the Magistrate were not, in my opinion, void ab initio; and under its powers Quarter Sessions can quash the conviction as based on an improper trial. I think the words of Lord Atkinson in Crane v Public Prosecutor[10] are conclusive.

My difficulty has been as to the Stipendiary Magistrate being properly seised of the charges. There was no information before him; and yet the Gaming and Betting Act 1912 appears to intend an information (secs. 43, 44, 25, 33, 34). It certainly startled me, as one not familiar with criminal law, that citizens can be dragged summarily by a policeman before justices on a mere warrant, and be forthwith tried together on differing charges unless they object to such a trial. They may not know that they could take such an objection. However, sec. 133 of the Justices Act 1902 seems to be conclusive on the subject: "Where the party convicted ... was present at the hearing of the case, the conviction ... shall be sustained, although there may have been no information ... unless such party objected at such hearing that there was no information..." I do not know of any English Act to this effect; but it seems to have been part of the statute law of New South Wales since 1853 (see 17 Vict. No. 39, sec. 16). And, in addition, the section seems to have anticipated the decision of numerous Justices in the Court for Crown Cases Reserved in R. v. Hughes[11]. This decision has been the subject of doubt (see Dixon v. Wells[12]); but it is followed (see Paley on Summary Convictions, 9th ed., pp. 163, 246). Under the circumstances, and as there has been no argument to the contrary, I think that it is our duty to obey sec. 133 of the Justices Act 1902. But it is for the Legislature to consider the danger of the practice.

The question whether either Petty Sessions or Quarter Sessions can hear the charges together by consent, is, as I understand, to be left open.

Appeal allowed. Question answered as follows: The Court of Quarter Sessions has jurisdiction to hear the appeals, but should not hear the appeals of Albert Bates and Nellie Bates together with the appeal of William Robert Saunderson if any of the respondents object thereto.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

[1] (1920) 3 K.B. 236; (1921) 2 A.C. 299.

[7] [1906] HCA 73; (1906) 4 C.L.R. 716.

Russell v Bates [1927] HCA 56;

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Russell v Bates [1927] HCA 56; (1927) 40 CLR 209 (10 December 1927)

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