RvEnsiow - Revick v ct a - [1906] HCA 20 - HCA 1906 case summary

High Court of Australia|1906-07-01|Before: O'Connor JJ, Barron J

Motion for special leave to appeal from the Supreme Queensland.

Appeal allowed. Tudgment the plaintiff for a perpet and costs of action. Defe costs of appeal.

Solicitors, for appellant, Flower «: Hart, by Unmack & Connolly. Solicitors, for respondent, Roberts, Lew & Barnett.

Special leave refused - " Autrefois convict" - Queensland Criminal 0 sec. 19 (8) - Nominal penalty.

Special leave to appeal will be granted in criminal cases only questions of great public importance are involved, and such leave wi granted where it appears to the Court that the accused, who bi acquitted in the Court below, was, at most, only technically guilty: charged and a merely nominal penalty might lawfully have been

The provision of the Queensland Criminal Code, sec. 16, that not be twice punished for the same act or omission, does not same test as the Common Law defence of autrefois convict.

keeping his licensed house open on Sunday, an inst the Licensing Act 1885 (49 Vict. No. 18,sec. 75 (2).) already convicted of supplying liquor to a boy under of 14, an offence against sec. 67 (b) of the Licensing Act. _ proved that the two acts, charged as separate offences, on the same occasion, and were constituted by the umstances. The case was heard by three benches of istrates; twice the bench disagreed; finally, in a bench of five , four decided to dismiss the charge. They found that el was kept strictly closed on that Sunday against the liquor, except that a bottle of liquor was sold to the boy, pon the representation that it was for his sick mother, and y, therefore, decided to follow sec. 16 of the Criminal Code, h provides that a person should not be twice punished under Code or any other law for the same act or omission. \ special case was stated, under sec. 226 of the Justices Act 6 (50 Vict. No. 17), for the opinion of the Full Court, who ld that the magistrates were right.

State A.G. (with him Henchman) for the complainant moved for special leave to appeal from the decision of supreme Court. In Sherwood v. Spencer (1) the High Court n the test to be applied to these circumstances. The tion is - Would the evidence necessary to support the second tment be sufficient to support a legal conviction upon

riTH C.J. - The Code lays down a new test - sec. 16 - "A nnot be twice punished, either under . . this Code or y other law, for the same act or omission." The law of convict is laid down in another part of the Code - sees 598.)

e two distinct offences here; the Supreme Court has tinguish the acts which are the essential elements of from the particular evidence which was adduced to acts: R. vy. Hull (2).

ant, an innkeeper, was proceeded against by H.C. or A.

[Barron J. - We must follow the facts of the s "the house was kept strictly closed except for the sale to See. 16 of the Code cuts away the common law te i wutrefois convict. ]

The sale to the boy was merely evidentiary of the ke on Sunday; it was not the "same act," but only evi act. This is a question of high importance to the publie, in the administration of the Licensing Act. Itis important t a ruling that the facts establish distinct offences, and finding by the magistrates, that the two offences were cons by one act, was immaterial. a

Under see. 19 (8) of the Code a person convicted of any o on summary conviction may, at the discretion of the magistr instead of being sentenced to the punishment to which liable, be discharged upon his own recognizances.

GrirrirH C.J. The point sought to be raised is, no dou! sense an important one. It is provided by see. 16 of the 0 Code that no person shall be twice punished for the same omission. That is not quite the same as the law which defence of " autrefois convict," which is dealt with in 598 of the Code. The rule in sec. 16 may or may not be i with the common law, but it is the law of Queensland. present case the defendant had sold a bottle of porteron toa boy under 14 years of age. It is an offence under the Act to sell liquor to a boy under 14 at any time, and he had convicted of that offence. He was then charged, under a section of the Licensing Act, with the offence of keeping 0] licensed premises for the sale of liquor on a Sunday. The 0 evidence of his keeping his house open on that day was the of that bottle of porter. The justices found as a fact that he: not keep his house open on the Sunday except for # pose selling that bottle of porter, and this under circumstances made his act a not very hemous offence although it was a tee breach of the law, and they refused to convict. The point tak by the Attorney-General is that the keeping of the house and the sale of the liquor to the boy, were not the same act. '

f the Full Court based their decision principally H.C. or 4. of fact by the justices that the whole matter 1°

in support of that view, beyond the brief reason given

ed Judges themselves; but at present it seems to us

is a distinction between the keeping open of the house

he sale of the liquor. The keeping open of the house must

of time was inappreciable, and in reality all that the

lant did was to open the door and give the boy a bottle of

ally, perhaps, the defence set up was not established ; clearly a case in which the justices, if they had thought bound to convict, would most properly have exercised

any penalty. This Court very rarely gives leave to in a criminal case; and only then when questions of great portance are involved. We are unable to see that any n of public importance is involved in an unsuccessful tion brought for the purpose of inflicting upon a man two ments for what in substance, though perhaps not in form, consists of only one act. We think, therefore, is a case in which we ought not to give special leave.

RvEnsiow - Revick v ct a

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