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R v White [1968] HCA 19; (1968) 122 CLR 467 (26 April 1968)

CATCHWORDS

HEARING

DECISION

2. The terms of s. 319 were originally derived from s. 3 of the Habitual Criminals Act, 1905 of the State of New South Wales, a provision which was also adopted in substance by the States of Victoria, Queensland and Western Australia and by New Zealand. When first enacted in South Australia in 1907 as s. 3 of the Habitual Criminals Amendment Act of that year, it had been preceded by an Act called the Habitual Criminals Act, 1870 (S.A.), the substance of which is now to be found in s. 316 of the Criminal Law Consolidation Act. Though the Act of 1907 was entitled as an Amendment Act, it embodied a new and distinct scheme not in reality a modification or extension of the scheme of the 1870 Act. Perhaps the best indication of this is the presence of both schemes, still unrelated to each other, in the present Act. The period of police supervision for seven years after the service of a term of imprisonment for which s. 316 provides depends upon a prior conviction for an offence within a specified range of offences. It is imposed by the Act itself upon the subsequent conviction for an offence in the same range unless the court sentencing the accused for the subsequent offence otherwise declares. On the other hand, s. 319 like its predecessors, including the New South Wales statute, creates in the court a discretion to declare a convicted person an habitual criminal if that in fact is what in the opinion of the court he is. The section does not itself impose anything upon the prisoner but selects what it describes as previous conviction on at least a specified number of occasions of an offence of the specified class as indicative of the possibility that crime has become habitual with the prisoner. It seems to me that the scheme of this section is different from and independent of that of s. 316 and its predecessors and that no conclusion can be drawn from any difference in the language of the two provisions. Further, the selection of previous conviction on at least a specified number of occasions as the condition giving rise to the judicial discretion does not appear to me to be founded on any specific concept of incorrigibility or lack of response by the prisoner to what is said to be the warning of a prior conviction or of a prior sentence. The selection is made I think because the frequency of the commission of an offence within the stated range of offences may mark habituation and call for special measures for the protection of the public and the reformation of the prisoner. (at p471)

3. In my opinion, Reg. v. Keitley (1965) Qd R 190 ought not to be followed. The exposure of the prisoner to the judicial discretion which s. 319 (1) gives to the trial judge when he has been thrice convicted of one of the serious offences listed in s. 319 (3) cannot, in my opinion, be properly described as harsh and capricious. Though a man be convicted on the one day and upon the one indictment of a number of offences, the separate offences will in all probability have been committed on different days and probably on days separated by substantial intervals of time. Therefore, both upon my own reading of the section and upon long standing authority to which my brother Menzies makes reference and which commends itself to me, I consider that when Chamberlain J. made the declaration which he did he acted within the authority conferred by s. 319 of the Act. According to the proper construction of that section, the respondent had been previously convicted on at least three occasions of an offence mentioned in class V. of sub-s. (3). Indeed, in my opinion, if the declaration be regarded as part of the sentence on the third count, the conviction on the first and second counts constituted further occasions. The matter therefore became one for the exercise of the discretion which the learned judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really an habitual criminal. (at p472)

McTIERNAN J. I would allow the appeal. I concur in the reasons of my brother Menzies and I do not consider that it is necessary to add anything to them. (at p472)

KITTO J. I too agree in the judgment of Menzies J. (at p472)

TAYLOR J. I agree with the reasons and conclusions of Menzies J. I add, merely by way of emphasis, that I can see no warrant for treating the expression in s. 319 (1) of the Criminal Law Consolidation Act (S.A.) - "on at least three occasions" - as expressing a necessity for any particular temporal disconformity in relation to the previous convictions. There is nothing in the expression to entitle one to say that by "occasions" the legislature meant "days" or, for that matter, any other specific period of time. It is however objected that unless the meaning attributed to the whole expression by the respondent is given to it the word "occasions" loses all force and is relegated as surplusage. That is to say that to reject the respondent's submission is to read the section as if it simply provided that a declaration may be made under it if it appears that the accused, having been convicted of an offence mentioned in sub-s. (3), has been previously convicted at least three times of an offence mentioned in the latter subsection. But to attempt to state the substance of the section in this fashion discloses, I think, the reason for the presence in the section of the word "occasions". It may well have been thought rather less precise to speak of a person having been previously convicted at least three times of an offence mentioned in sub-s. (3) rather than of a person who has been previously convicted on at least three occasions of such an offence. (at p472)

2. It is the respondent's contention that since the relevant provisions of convictions, though more than three in number, occurred on two, and not three or more occasions, a declaration under s. 319 (1) could not be made. But there is ample authority for the proposition that a conviction occurs when a verdict of "Guilty" is returned to an indictment (Reg. v. Blaby (1894) 2 QB 170 , Reg. v. Miles (1890) 24 QBD 423 , R. v. Sheridan (1937) 1 KB 223 , R. v. Grant (1936) 2 All ER 1156 and Reg. v. Campbell; Ex parte Hoy (1953) 1 QB 585 ) and where an indictment or information contains several counts alleging separate offences the jury should be directed to return a verdict on each count : R. v. Bailey (1924) 2 KB 300 . I cannot, therefore, see why the return of the verdict should not be the occasion of the conviction and that, therefore, why it does not appear that the respondent was previously convicted on at least three occasions. The view of the Court of Criminal Appeal "that two or more convictions on the same day constitute only one occasion for the purposes of s. 319" should not, in my opinion, be adopted. If, however, we were to adopt it the result would be that, if in a like case, it appeared that an offender had been convicted on each of three successive days of separate offences of the requisite character a declaration might, on the subsequent conviction, be made but otherwise if the three previous convictions had been the subject of separate counts in the one indictment. I do not think that any such capricious result was intended and I prefer to follow the long-standing authorities on the point in this country and in New Zealand. (at p473)

3. I would allow the appeal and restore the declaration of the learned trial judge. (at p473)

MENZIES J. Section 319 (1) (b) of the Criminal Law Consolidation Act, 1935-1957 (S.A.) is as follows:

"319. (1) When any person is convicted on information
of an offence of one of the classes of offences mentioned in
subsection (3), the following provisions of this section shall
take effect : - . . .
(b) Where such person is so convicted of an offence included
in any of the classes V., VI., VII., or VIII., mentioned
in subsection (3), and has been previously convicted
on at least three occasions of an offence mentioned or
included in any of the said classes V., VI., VII., or
VIII., such judge may, in his discretion, declare as
aforesaid that such person is an habitual criminal."

2. On 9th May 1962 the respondent was convicted by a jury upon three counts of larceny; on 14th May 1962 he was arraigned upon an information alleging previous convictions as follows:

"1. House breaking and larceny (two counts) at the
Adelaide Juvenile Court on 15th March 1957.
2. Shopbreaking and larceny (three counts) at the
Adelaide Juvenile Court on 15th March 1957.
3. Officebreaking and larceny, at the Adelaide Supreme
Court on 6th April 1959.
4. Possession of housebreaking implement at night at
the Adelaide Supreme Court on 6th April 1959.
5. Officebreaking and larceny, at the Adelaide Supreme
Court on 6th April 1959."

3. The respondent had been previously convicted on eight counts of larceny but five of these convictions were upon counts heard in the Adelaide Juvenile Court on 15th March 1957 and the remaining three convictions were upon counts heard in the Supreme Court at Adelaide on 6th April 1959. The Full Court decided that the respondent had been previously convicted on two occasions only, that is once on 15th March 1957 and once on 6th April 1959. (at p474)

4. As will appear later, there is conflicting authority upon statutory provisions elsewhere corresponding with that now under consideration; it is convenient, however, in the first place to examine the language of s. 319 (1) (b) in its context in the Act. The provision is concerned with a conviction of an offence of the specified classification both as the occasion for making a declaration and as the condition upon which a declaration can be made upon that occasion. The condition is conviction of an offence on at least three occasions ; it is not, in terms at least, three convictions of an offence. Nevertheless it may well be that each conviction of an offence is itself an occasion. Looking at the section itself there appears to be no justification for reading the word "occasions" as meaning days, and there would seem to be no reason for not treating a criminal convicted in separate courts on the one day as having been convicted on two occasions, e.g., in a Local Court in the morning and in the Supreme Court in the afternoon. Nor would there seem to be much more reason for regarding a criminal convicted in the morning of robbery and in the afternoon of extortion as not having been convicted on two occasions, even if both convictions were in the one court. The difficulty that had been found in the section becomes apparent only when a prisoner is tried upon separate counts in the one court at the one time, for then in common parlance the ensuing convictions might be described as being upon the one occasion. Should this be so, however, it is merely one of the many cases where common parlance and the true meaning of a statutory provision may differ. The difficulty which I have acknowledged as arising in the third instance which I have taken is perhaps more apparent than real, for a careful reading of the judgment of the learned Chief Justice, with which Mitchell J. agreed, satisfies me that his Honour would treat the three instances I have taken in the same way and would not regard a number of convictions on the one day as amounting to more than convictions upon one occasion. In the same way I would treat all three instances in the one way but would, with respect to the Chief Justice's view, regard every conviction as being upon a separate occasion. There is in my opinion an occasion every time a person is charged in court with an offence and is convicted upon that charge. So I read s. 319 (1) (b). (at p475)

5. It is, however, necessary to refer to the authorities. (at p475)

6. In New South Wales in R. v. Hamilton (1913) 13 SR (NSW) 651 , decided in 1913, it was said :

"The Habitual Criminals Act requires that before the judge
can use his discretionary power of declaring an offender an
habitual criminal there must have been in this class of offence
three convictions on indictment.
. . .
Now, certain questions occurred to the Court in dealing with
declarations under the Habitual Criminals Act because of the
peculiar wording of the section dealing with these matters ;
and it was thought proper that the whole subject should be
considered, having in mind the intention and object of enacting
this kind of legislation. The provision of s. 3, which is the
one in question, uses the expression - a person convicted of an
offence of a certain class who has been previously so convicted
on at least, for one class of offence, two occasions ; and for
another class of offence, under which the present one comes,
conviction on at least three occasions. The Court took the
opportunity of consulting with the three other members of
the Bench who have sat in this Court of Criminal Appeal, and
the history of legislation on the subject, which began in England
in the year 1869, was very carefully considered. Our own
enactment, which was passed in the year 1905, does not use
the same expressions, or require precisely the same kind of
consideration as that laid down in the English Act, and though
a study of those Acts and the decisions upon them are of
great use in considering the matter, they were not of special
value in determining the meaning of our own legislature.
But the general consensus of opinion, on consultation, was
that when our own legislature used the expression, 'a person
having been convicted on so many previous occasions', they
did mean the same thing as is expressed in the English Act,
which speaks of a person having been so many times convicted
previously."

7. In New Zealand in 1910 it was decided by a Full Court comprising five judges in R. v. Steele (1910) 29 NZLR 1039 that each conviction of a prisoner is a separate occasion within the meaning of s. 29 of the Crimes Act, 1908 (N.Z.), whether the several convictions are recorded on the same day or on different days. Stout C.J., after indicating that the prisoner had been convicted on four separate indictments before the Supreme Court on 27th May, asked : "Has he been previously convicted on at least four occasions of any offence?". His Honour then said :

"It is true the Act does not mention four offences. It seems
to me to imply that, because it says 'convicted on at least
four occasions of any offence' ; it does not mean convicted on
four occasions of several offences, but it is assumed that there
is only one offence on each occasion.
. . .
The statute has made it necessary that there shall be four
- four occasions of any offence. There were separate
indictments,
and each indictment was really a separate occasion
when he pleaded guilty to it. It does not matter if it all took
place in the one day.
(1910) 29 NZLR, at p 1043
"

8. In South Australia in Reg. v. Ciemcioch (1963) SASR 64 , the Full Court, in the course of its judgment, said in relation to s. 319 (1) (b) :

"A further contention, that convictions on separate counts
in the one information did not constitute convictions on
separate 'occasions', was mentioned, but, in our view, quite
properly, was not pressed."
(1963) SASR, at p 66 (at p477)

9. It appears, therefore, that many judges over a long period of time have regarded a conviction upon a separate count as a conviction upon a separate occasion and notwithstanding the counts were heard in the one court at the one time. (at p477)

10. In England, however, in 1953 a different view was taken but without any reference to the authorities already cited. In Reg. v. Rogers (1953) 1 QB 311 the Divisional Court held that the word "occasions" in s. 21 (2) of the Criminal Justice Act, 1948 (U.K.) - corresponding with, though not in exactly the same terms as, the subsection now under consideration - meant separate appearances before a court and that two convictions of the same man at the same sessions or assizes are not convictions on two separate occasions. Lord Goddard C.J., in delivering the judgment of the Court, said :

"The court is therefore of opinion that we must construe
these words 'on at least three previous occasions', as meaning
that each occasion is a separate occasion if sentences have been
passed at a separate court ; that is to say, that two sentences
passed on the same man at the same sessions or the same
assizes will not rank as passed on two separate occasions ;
they must be at separate assizes or quarter sessions.
. . .
If one construes the word 'occasion' as really meaning
appearance in court, appearance at the assizes, appearance
at the quarter sessions or the petty sessions, that gives a
meaning which is in my view consonant with the spirit and
intention of the Act."
(1953) 1 QB, at pp 316, 317 (at p477)

11. In the Full Court, Hogarth J. felt himself able to distinguish this decision because it involved consideration of ss. 21 (1) and 22 as well as s. 21 (2) of the English Act, but a careful study of Lord Goddard's judgment does not enable me to adopt this view. It does seem, however, that the decision of the Divisional Court turned very much upon the application of the old rule that a judgment relates back to the first day of the term so that the whole term should be treated as one occasion for the purposes of the English section. It is apparent, moreover, that an appearance at the assizes and an appearance in petty sessions on the same day would have been regarded as appearances on different occasions. In my opinion neither this decision, nor those which have followed it, such as Reg. v. Rider (1954) 1 WLR 463 ; Reg. v. Perfect (1957) 2 QB 107 and Reg. v. Keitley (1965) Qd R 190 , outweigh the decisions in South Australia, New South Wales and New Zealand to which reference has been made earlier. (at p478)

12. As the authorities stand, I think our proper course is to give effect to our own understanding of the section. Doing that, I consider that when Chamberlain J. made the declaration which he did he acted within the authority conferred by s. 319 of the Act for, according to the proper construction of that section, the respondent had been previously convicted on at least three occasions of an offence mentioned in class V. of sub-s. (3). The matter therefore became one for the exercise of the discretion which the learned judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really an habitual criminal. (at p478)

13. For these reasons the appeal should be allowed and the declaration which was quashed by the Full Court should be restored. (at p478)

ORDER