Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 (29 June 1904)

HIGH COURT OF AUSTRALIA

Nolan Defendant, Appellant; and Clifford Plaintiff. Respondent;

H C of A

On appeal from the Supreme Court of New South Wales.

29 June 1904

Griffith C.J., Barton and O'Connor, JJ.

Sir Julian Salomons, K.C., (with him, Wise, K.C., and Boyce), for the appellant.

Mocatta, (with him Mitchell), for the respondent,

Sir Julian Salomons, K.C., for the appellant.

Wise, K.C., followed.

Mocatta, for the respondent.

Mitchell followed.

Sir Julian Salomons, K.C., in reply.

29th June

Griffith, C.J.

[His Honor, having stated the facts reported above, proceeded as follows:] An objection has been taken that the judgment appealed from was in the nature of an interlocutory judgment, and that there could therefore be no appeal from it without the leave of this Court or of the Supreme Court. It is an interesting point, but of an entirely academic nature. In one sense the judgment was final, because that part of the defendant's defence was finally concluded against him; in another sense it was interlocutory, because a decision has not yet been given on the whole case, but the matter is before us now, and we can give special leave, if necessary. As the matter has been fully argued, there is no reason why we should not express an opinion on the main point, which we think is of great importance in the administration of justice in New South Wales.

The real question is whether a constable is justified in arresting without a warrant for any offence less than a felony. The question for our determination depends entirely upon the construction of sec. 352 of the Crimes Act, a consolidating Act passed in 1900. That section provides [His Honor read sec. 352].

The main question for us to determine is, what is the meaning of the term "any such crime" in the second paragraph of the section: "Any constable may without warrant apprehend any person whom he, with reasonable cause, suspects of having committed any such crime." The contention for the appellant is that the term includes any offence, whether punishable by indictment or on summary conviction. For the respondent it is contended, following the opinion of the Full Court, that the word "crime," as there used, means only "felony." If I were at liberty, speaking for myself, to conjecture what was the intention of the draftsman or legislature, merely from all the information that is in one sense at our disposal, partly historical, partly arising from the practice of the police department, and partly from the notes in a text-book by learned authors, I should be inclined to think that it was intended that the word "crime" should mean any offence whether punishable on indictment or on summary conviction. If I were at liberty to form an opinion as to the meaning of the section merely by looking at it, without any regard to the previous law on the subject, I should be inclined to the opinion that "crime" is intended to include felonies and misdemeanours. But neither of these methods of interpretation is proper to be applied judicially.

It is always necessary in dealing with any law that alters the common law, and especially where the common law rights of the liberty of the subject or relating to property are concerned, to consider what was the previous law, and what were the apparent reasons for the alterations made, and then to see what reasons there were for altering the law, and what the legislature has done to remedy what it conceived to be defects in the law. Now, the common law with regard to this subject was well settled. It was that a constable could arrest, without a warrant, any person whom he suspected on reasonable grounds of having committed a felony. He could not do so in the case of a misdemeanour, or in the case of an offence punishable on summary conviction, unless on the authority of some Statute, such as the English Larceny Act, sec. 99, which was referred to. There is a similar section in the Malicious Injuries to Property Act. But generally he could not arrest for a misdemeanour on suspicion. Another distinction was that in the case of a felony a constable was not obliged to have a warrant in his possession, while in the case of a misdemeanour he was. That was not decided until comparatively recently, but it is settled law in England, and it has been held to be the law of New South Wales.

It might be asked why there should be any difference between the right of a constable to arrest without a warrant in the case of a felony, and in the case of a misdemeanour. But there is a settled rule, the reason for which seems to be the application of the principle that he may arrest on reasonable suspicion, and that, if a constable is aware on credible authority that a warrant has been issued, on a properly sworn information, by a justice against any person, that is held to be reasonable suspicion that the person has committed a felony. We know that is the way in which the administration of the police laws is conducted, and has been, as long as we have known anything about it. But that is not the law in the case of a misdemeanour.

These then were the rules, and the legislature set about to alter them. The Criminal Law Amendment Act, passed in 1883, contained a section, which sec. 352 in the consolidation represents. That section was:—"Every constable or other person may without a warrant apprehend any person in the act of committing, or immediately after having committed an offence punishable (whether by indictment or on summary conviction) under this or any other Act—and take such person, together with any property found upon him, before a Justice to be dealt with according to law—and may in like manner apprehend and deal with any offender who has committed a crime punishable by death or penal servitude and for which he has not been tried—and every constable may, without warrant, apprehend and in like manner deal with any person, whom he, with reasonable cause, suspects of having committed any such crime—."

The rest of the section I need not read. That section was intended to alter the Common law, and it altered it to this extent; that a constable was empowered to apprehend without a warrant any person, in the act of committing, or immediately after committing, an offence punishable under any Statute, whether by indictment or on summary conviction. That was a most important change in the law, because, although any constable or private person could have arrested a person found committing a felony, neither a constable nor a private person could, in general, arrest a person found committing a misdemeanour or an offence punishable on summary conviction. If the misdemeanour involved a breach of the peace he might do so, otherwise it must be under the authority of a Statute. That, then, was an important change in the common law.

The Statute went on to say: "A constable may without warrant apprehend and in like manner deal with any person whom he, with reasonable cause, suspects of having committed any such crime." These words follow after the words "any offender who has committed a crime punishable by death or penal servitude." By the interpretation clause in this Statute the crimes "punishable by death or penal servitude" are felonies, and the test whether they are felonies is whether they are punishable by death or penal servitude. On the necessary grammatical construction of the words, whatever might have been the object, and in one sense the intention, of the framers of the Act, the meaning of the language that is there contained, is that the word "crime" in the sentence "whom he with reasonable cause suspects of having committed any such crime," means such a crime as has just been mentioned, that is, a "crime punishable by death or penal servitude." I do not think that the grammatical construction will allow of any other interpretation. In that respect therefore the legislature did not alter the common law, and did not allow a constable to take into custody on reasonable suspicion a person who was supposed to have committed a misdemeanour.

Then later, in 1891, the legislature passed an Act, a section of which now stands as the third paragraph of sec. 352, authorizing a constable to apprehend for a misdemeanour, although the warrant is not in his possession, provided the warrant has been issued. That Act was passed immediately after the decision of the Supreme Court in the case of R. v. Tommy Ryan, in which, following the earlier decision in R. v. Whitehouse, they, in accordance with the law declared in England, held that a constable could not arrest for a misdemeanour unless he had a warrant in his possession. It was pointed out in the argument with considerable force—and I do not see any answer to it—that it had not occurred to anybody, in the case of R. v. Tommy Ryan, that, under sec. 429 of the Criminal Law Amendment Act, a constable might have taken the offender into custody on reasonable suspicion, although, upon the construction which the learned annotators of the Criminal Law Amendment Act thought to be the correct one, he would have been entitled to do so. The legislature, then, passed an amending Statute, which authorized a constable to apprehend a person for committing a misdemeanour, although he had not a warrant in his possession, so putting misdemeanour on the same footing as crimes and felonies, but not making any other alteration in the law in that respect. That being the state of the law, that a constable could not arrest on reasonable suspicion for a misdemeanour, unless a warrant had been issued, nor for any offence punishable on summary conviction, the law was consolidated in 1900. This is described to be an Act to consolidate the Statutes relating to Criminal Law. There is nothing to indicate that the legislature intended to make any substantial alteration in the law. It is entitled an Act to consolidate the Statutes. There is nothing to suggest that they intended to make an important alteration in the common law on a matter materially affecting the liberty of the subject. If, notwithstanding that, the Act did contain provisions which could only bear one construction, we should, as pointed out in another case, be obliged to give effect to the plain words of the Statute; but, primâ facie, there is nothing indicating that this Act was intended to make an important alteration in the common law on a point affecting the liberty of the subject.

Reading sec. 352, what do we find? It certainly presents difficulties in construction. If the contention for the appellant is correct, the natural word to have used in paragraph 2 would not have been "crime" but "offence." If that part of the section was intended to cover the same class of cases as the first part of the section, clearly the word "offence" would have expressed that intention without ambiguity. On the other hand, if it was intended to limit it to felonies, the word "felony" would have been naturally used. The very word is used in the next subparagraph: "about to commit any felony." No doubt, using different words in the same section to convey the same idea gives rise to confusion and ambiguity, but the common law and the Statute law should not be taken to be abrogated, especially on matters affecting the liberty of the subject, unless a plain intention on the part of the legislature to make so important a change was to be found. I cannot think that, if the legislature had intended to say that a constable could arrest without a warrant for a misdemeanour, it would have used the word "crime" to describe a misdemeanour, and to introduce so important an amendment of the law. I think that in such context it is impossible, applying recognized rules of construction, to say that "crime" is intended to mean "misdemeanour." It might be that, if I were left to my own speculation as to what the framers intended, I should come to a different conclusion, but, applying judicial rules of interpretation, I cannot do otherwise than hold that the common law with regard to arrest upon suspicion for offences other than felony has not been altered by this section.

Barton, J.

I am of the same opinion. Dealing first with sec. 429 of the old Criminal Law Amendment Act, which was passed "to consolidate and amend the criminal law," I think, as the Chief Justice has said, that the construction of the sentence is plain. The section says: [at this point His Honor read the section.]

It is to me clear that the grammatical construction to be placed on the words "any such crime" is, that they refer to the last group of things (the crimes), which are antecedent. In the case of this section, the last group of crimes which can be so treated is expressed in this term of "crimes punishable by death or penal servitude." It seems to me to be beyond all question that it would be a violation of the language used to apply the words "any such crime" to any antecedent beyond those "crimes" which are clearly indicated, and to which, indeed, upon the construction in favour of the liberty of the subject, it most naturally applies. I do not find that this construction of sec. 429 has been disputed. It does not seem to be contended with any vigor at all that the words "any such crime" are, in that section, to be extended beyond "crimes punishable by death or penal servitude," and I think, with the Chief Justice, that the fact that the point here raised with regard to the old Criminal Law Amendment Act, never occurred to anyone in the very much argued case of R. v. Tommy Ryan is some evidence, to us at any rate, that members of the profession accepted the construction. If this construction is right, and if also the contention on the part of the appellant is right, sec. 352 makes a sweeping amendment, and makes it as part of an Act passed professedly to consolidate, and not, like the prior Act, to both consolidate and amend. The title is "to consolidate the statutes relating to the criminal law." It deals, therefore, professedly, with the then existing statutes by way of repeal and re-enactment.

In Hardcastle on the Interpretation of Statutes, 3rd ed., p. 197, it is stated:—"Again, it is a rule as to the limitation of the meaning of general words used in a Statute" (like the word "crime" here), "that they are not to be, if possible, construed so as to alter the common law." And lower down on the same page the writer gives this illustration of the principle:—"A right to demand a poll is a common law incident of all popular elections, and as such cannot be taken away by mere implication, which is not necessary for the reasonable construction of a Statute, said Brett, L.J., in R. v. Wimbledon (1882) 8 Q.B.D., 459, where it was contended that the Public Libraries Acts, 1855, 1866, and 1877, had abolished the common law rule."

That principle is applicable to strengthen the construction I have placed on sec. 429. As I was saying, if that construction is right, and if the appellant's contention is also right, then a later Act professedly framed merely to consolidate Statutes, has effected a marked amendment, because, again referring to the principle I was dealing with, it does seem to be clear that the corresponding portion of sec. 429 is really declaratory of the common law. I share the view of Mr. Mocatta, that it is so declaratory.

Coming then to sec. 352, we find that, down to the point to which I have quoted sec. 429, the two sections, one in the Act which consolidates and amends, and the other in the Act which only consolidates existing Statutes, are practically identical, unless the new meaning contended for is to be affixed to the words "any such crime." As to the earlier portion, it has been rightly said that what is called the first segment is taken from 24 & 25 Vict. c. 96, the Imperial Statute, sec. 103, but, if the meaning contended for is to be attached to the last words of the second segment of the section, "any such crime," then a new feature has been introduced into our criminal law, which, it has been urged, does not exist in the criminal law of any other part of the British dominions. That change in the law, it is contended, has been made in a consolidating statute. We have been asked to refer to the brevier, the note of the consolidating commissioner, to find out what he meant. I do not think this reference is of any value, because we are not to consider what the commissioner thought, but what Parliament has said, and what it meant by what it has said. But, if the brevier is to be considered, it will be seen how little departure is intended from the work of consolidation with respect to these Statutes, and that apparently no departure was intended in this very section. I leave that question of the brevier at this point, because it is quite correct to say that the matter is as broad as it is long, and if we should not give any attention to the note or memorandum of the consolidating commissioner for one purpose, we should not do so for the other.

But, with reference to consolidating Statutes, one must consider that some everyday principles are strengthened in their application when we have in view the express purpose of such Statutes. If it is true that very clear terms are necessary to take away common law rights, then the necessity for such terms must become all the stronger when the general intention of the Act is merely to repeal and re-enact existing provisions. Now, in that connection the case of Boulter v. Kent Justices, which was cited at the Bar, affords us an expression, applicable to this case. The dispute there was as to a decision of licensing Justices, and involved the question whether the Statute law, the words of which were wide enough for such a purpose, did constitute the Justices a Court of summary jurisdiction, so as to bring about, in applying the Act, the consequences contended for. Davey, L.J. (on page 573), says:—"I now come to the Act of 1889. Its title is An Act for consolidating enactments relating to the Construction of Acts of Parliament, and for further shortening the language used in Acts of Parliament. A most laudable object assuredly; but an Act for that purpose is the last place in which you would look for a substantive change in the law—imposing new liabilities on Her Majesty's subjects."

Now, it is true that in that case the purpose of the Act was to consolidate the Interpretation Acts and further shorten the language of future Acts of Parliament, and that naturally would not be a likely place in which to look for a substantive change in the law; but the language quoted is, if not with precisely the same force, certainly in a great degree, applicable to an enactment the mere purpose of which is re-enactment and repeal. It is of great weight in considering whether changes in the law are intended to be brought about by an enactment with this restricted object. I consider that legal principle and fair implication are both against the affirmative view. The whole force of the argument, if I could bring my mind to follow it at all, would not lead me any further than to say that the omission of the words "crime punishable by death or penal servitude" and the substitution of the word "felony" raised an ambiguity as to the construction of the words "any such crime," but I am not prepared to hold that, even if an ambiguity is raised, a change in the criminal law is made in an act for its mere consolidation.

The alteration from "crime punishable by death or penal servitude" to "felony" has reference to another section which finds its place in the consolidation, as sec. 9:—"Whenever by this Act a person is made liable to the punishment of death, or of penal servitude, the offence for which such punishment may be awarded is hereby declared to be and shall be dealt with as a felony, and wherever in this Act the term felony is used, the same shall be taken to mean an offence punishable as aforesaid."

Now, leaving out all questions about the draftsman, and confining oneself to the meaning of the terms used, it is clear that the legislature, in using the word "felony" in paragraph (b), sub-sec. 1 of sec. 352, has applied a synonym. It has used a word which it had already made interchangeable with the expression used in the previous Act, which was under consolidation. I should not go so far unless that intention were clear from the Statute as passed, but it is unquestionably made of identical meaning, because the section declares:—"Wherever in this Act the term felony is used, the same shall be taken to mean an offence punishable as aforesaid."

That brings us to this point, that, if we look to sec. 352, we are bound to read it in terms of sec. 429 of the previous Act, that is to say, we are bound, by the interpretation demanded of us by sec. 9 of the Act we are now considering, to say that in paragraph (b) of sub-sec. 1 the words are still to be read, "an offence punishable by death or penal servitude for which he has not been tried." Now, just as I pointed out, that it is clear, and it has scarcely been contested, that the words "any such crime" in the previous Act must be held to refer to the full form of words antecedently occurring in that Act: so it is impossible to hold, even on the grammatical construction, that the expression "any such crime" in the new Act refers to anything but "offence punishable by death or penal servitude," for which lengthy expression the synonymous term "felony" has been substituted in sub-sec. 1, paragraph (b).

It seems to me, therefore, that we cannot adopt the argument which has been addressed to us for the purpose of assigning to this provision a meaning different from that which plainly belongs to the corresponding portion of the prior Act, which was one of the factors of the consolidation. I go a little further than my learned brother, the Chief Justice, because I consider that, having in view the effect of sec. 9, and the terms at the end of it, the grammatical construction of this section, if you read it with sec. 9, as you are bound to do, is that "any such crime" is a "crime punishable by death or penal servitude." By the construction we are now placing on it, the ordinary purpose of a consolidating Act is preserved, and it will not be wrested from its declared objects and applied to others, by which process an amendment in the law would be placed in a Statute where the public and the profession would not be in the least degree on their guard to look for it. On all the arguments I have heard I have come to the conclusion, for the reasons I have ventured to advance, as well as for those given by the Chief Justice, that the right contended for on the part of the police is not conferred by legislation, and therefore that this appeal fails.

O'Connor, J.

Sec. 352 of the Crimes Act, the construction of which is in question in this case, may be divided into two parts. The first, consisting of sub-sec. (1), gives certain powers of arrest both to constables and private persons, and the second, consisting of the second and third sub-sections, gives certain powers of arrest to constables only. The first sub-section deals with three classes of offences: with offences punishable on indictment, which include felonies and misdemeanours, and with offences punishable on summary conviction. Now, in the powers which are given to constables only in sub-sec. (2), power is given to apprehend without a warrant any person whom he with reasonable cause suspects of having committed "any such crime." The words "such crime" have reference, of course, to the matter dealt with in the preceding sub-section. It is contended, on the one hand, that "such crime" must refer to each of the three classes of crimes mentioned in that sub-section. It is contended, on the other hand, that "such crime" refers only to the immediate antecedent, which is felony as mentioned in clause (b) of sub-sec. (1), and that therefore the power to arrest without a warrant does not include either a misdemeanour or an offence punishable on summary conviction. The question for our consideration is which of these contentions is correct.

Either construction would be admissible grammatically, and it has to be determined now which of these two constructions will best carry out the expressed intention of the legislature. The first and most important rule in the construction of Statutes is to give effect to words according to their grammatical meaning. If that meaning is clear, then, whether an alteration is made in the common law or the statute law or not, and, whether of a serious character or not, is of no moment; effect must be given to the words the legislature has used. But, in looking at this section, it does not appear that the legislature has used clear words, because, when we come to examine the words in question, we find that a word is used, "crime," which, according to its ordinary and popular meaning, is certainly not applicable to one of the classes of offences mentioned in the first sub-section, that is, offences punishable on summary conviction. I think, if the contention were urged anywhere outside of a court of justice, that offences punishable on summary conviction are crimes, it would be thought rather a straining of the English language.

If the appellant's contention is correct, this word "crime" is used to describe three classes of offences: felony, misdemeanour, and offences punishable on summary conviction; and the question naturally arises, why was that word "crime" used, if it was intended to apply to the three classes of offences mentioned, when the word "offences," which was so obviously the correct word, might have been used. These considerations throw so much doubt on the sense in which the word "crime" is used, that it becomes necessary to inquire what would be the consequence and effect of putting a construction upon the word "crime" which, according to the ordinary, popular signification, it does not bear.

I may stay here to observe that the word "crime" is not used in a technical sense in any part of the Crimes Act. In one section, sec. 404, it is evidently used to include both felony and misdemeanour. I cannot find any section in which the word "crime" can be held to apply to an offence punishable on summary conviction. There are several sections in which the words "criminal proceedings" are used evidently in regard to offences punishable on summary conviction, but the expression "criminal proceedings" is one of much wider application than the word "crime." So that we get no light on the meaning of the word "crime" from the Act itself.

Applying the principle that has been already referred to, we must now look at what the intention of the legislature was in passing the Act, which is to be gathered from the state of the law before the Act was passed. The state of the law when the Act was passed was this. At common law a constable could not apprehend without a warrant a person whom he with reasonable cause suspected of having committed a misdemeanour or an offence punishable on summary conviction. The statutory law at that time was in accordance with the common law, and therefore it is quite clear that to interpret the word "crime" in accordance with the appellant's contention would be to hold that the Crimes Act has made a very sweeping change in the common law, and in the statute law. That immediately places us upon inquiry to see whether the legislature could have intended to make any such change. Now, looking at the Act which is consolidated here, we find at once the key to the true interpretation of the section, and also the explanation of the ambiguity which has arisen.

To my mind there is no doubt whatever as to the proper interpretation to be placed upon sec. 429 of the Criminal Law Amendment Act. As was pointed out by Mr. Mocatta, in the middle of that section there is interpolated a statutory declaration of the common law power to apprehend and deal with an offender who has committed a crime punishable by death or penal servitude and for which he has not been tried, and then power is given to a constable to arrest a person whom he with reasonable cause suspects of having committed any such crime. And that portion of the section is the only portion in which the word "crime" is used. The words are: "And may in like manner apprehend and deal with any offender who has committed a crime punishable by death or penal servitude for which he has not been tried, and every constable may, without warrant, apprehend and in like manner deal with any person whom he with reasonable cause suspects of having committed any such crime."

"Any such crime" can have no reference in that section except to a crime punishable by death or penal servitude, or, in other words, a felony. Now, in transferring that portion of the section into sec. 352, it is quite clear that what has happened is this: instead of using words describing felony as a "crime punishable by death or penal servitude," the draftsman of the Crimes Act has adopted the synonym provided in sec. 9, where there is in effect a definition of felony, as an offence punishable by death or penal servitude. If one looks at clause (b) of sub-sec. (1) of sec. 352, and, instead of the word "felony" in that sub-section, inserts the words of the original Act, "crime punishable by death or penal servitude," then there can be no doubt as to the meaning of sub-sec. (2), the felony section, because "any such crime" could there have reference only to the crime covered by that description. It appears to me, therefore, that the whole ambiguity has arisen because of the substitution of the word "felony" for the words descriptive of felony, which are used in sec. 429 of the original Act.

Now, seeing what was the law which was then sought to be consolidated by sec. 352, and seeing what the common law was at that time, it seems to me, with the two alternative interpretations before us, it is impossible for us to construe the words "any such crime" as including all three classes of offences dealt with in the first sub-section of sec. 352. To give the word "crime" such a meaning would, it appears to me, be to defeat the obvious intention of the legislature, to be gathered from the whole of this Statute, which is a consolidation of the law. The obvious intention of the Statute can, on the other hand, be completely carried out by the other interpretation, which, as I say, is also the grammatical interpretation, that is, to read "any such crime" as referring to the immediate antecedent, "felony." The immediate antecedent is contained in clause (b) of the first sub-section:—"Any person who has committed a felony, for which he has not been tried."

Reading sub-sec. (2) in the way I have indicated, power is given to any constable, without warrant, to apprehend any person whom he with reasonable cause suspects of having committed "any such crime," that is, a felony. That interpretation is in accordance with the previous law and in accordance with the common law, and it appears to me to be the interpretation which we are forced to adopt in reading this Statute. That being so, I agree with their Honors in the judgment already delivered, that the appeal cannot be sustained.

Appeal dismissed with costs.

Solicitors, for appellant, Crown Solicitor for New South Wales.

Solicitors, for respondent, Wilkinson & Osborne.