MacDonald v Beare [1904] HCA 22; (1904) 1 CLR 513 (2 September 1904)

HIGH COURT OF AUSTRALIA

MacDonald Appellant; and Beare Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

2 September 1904

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

Ferguson and Walker, for the respondent, moved to rescind or vary the special leave to appeal.

Blacket, for the appellant.

Ferguson and Walker, for the respondent.

Blacket, in reply.

September 2

Griffith, C.J.

This is an appeal from the decision of the Supreme Court on a special case stated by justices under the Justices Act 1902, on an information presented against the respondent by the appellant, charging him with having committed an offence against the Games, Wagers and Betting Houses Act, 1901. The section under which the information was laid was sec. 4, which is as follows:—"Any justice upon complaint made on oath that there is reason to suspect any house, room, premises or place to be kept or used as a common gaming-house and that it is commonly reported and believed by the deponent so to be may by special warrant under his hand and seal authorize any constable to enter into such house, room, premises or place and arrest search and bring before any two justices all persons found therein and seize all tables instruments of gaming moneys and securities for money found therein," &c. The authority, it will be observed, is that any justice may be "special warrant ... authorize any constable." The owner of the house, if convicted, is liable to a penalty not exceeding £100 (sec. 6). Sec. 10 provides that "whenever any house room premises or place suspected" is entered under a warrant under the provisions of the Act, the discovery of cards, dice and other implements of gaming in the place affords presumptive evidence that the place was used as a common gaming-house, and that the persons found there were engaged in play. For the purpose of sec. 10, therefore, it is important that there should be a valid warrant, because what would be sufficient presumptive evidence in the case of a house entered under a warrant might not be sufficient evidence in an ordinary case independently of the provisions in that section. On the hearing before the magistrate the objection was taken that the warrant was bad. Sec. 4 says that "Every special warrant shall be in the form contained in the second schedule hereto or to the like effect." In this instance the warrant was addressed "to the Superintendent of Police for the metropolitan district and a constable of the police force, and to all other constables in the said force." The objection was that, on that account, the warrant and conviction were bad. The objection was put in various ways. The magistrate was of the opinion that the warrant was bad (1) for uncertainty as to the address; (2) that it was not addressed to any police constable by name; (3) that it was executed by a person not being a police constable to whom it was addressed, nor (4) with any assistants called by the police officer to whom it was addressed, and (5) that it was not in the form of the special warrant under the Act. On the appeal to the Supreme Court, that Court decided that the magistrate's determination was right in point of law, and dismissed the appeal. It now comes before us on appeal from that decision. The various objections practically come to the same thing, that the address was too large. It is not disputed that at common law a warrant in the form of this one would be good, but it was contended that it was bad by reason of the provisions of the Statute. If it was bad, therefore, it must have been by reason of some alteration made in the common law by the Statute. The answer to the question whether any such alteration has been made is to be found by looking at the terms of the Statute.

The case before the Supreme Court is shortly reported. The learned Judges, after pointing out that there was no dispute as to the common law, said (I am reading from the judgment of the learned Chief Justice), "The question is whether this warrant is sufficient under the Act. As to the form given in the schedule it seems to me that the form of warrant really begins with the words whereas it appears to me and that the heading to the constable is no part of it, but merely indicates that the name of someone who is a constable is to be inserted." The Chief Justice then went on to say: "In my opinion the warrant should be addressed to some constable by name, and the person so named should be some responsible officer upon whose intelligence and discretion the magistrate may rely." The other Judges of the Court concurred, and that is all that is reported. Now, with great respect to the learned Judges of the Supreme Court, if the common law has been altered, then some section, upon which those who make that contention rely, must be found in the Act. I have looked carefully through the Act to see if there is any section having that effect, and I cannot discover anything in the Act to support the view taken by the Supreme Court. Looking at the section itself, we see that authority is given to the justice to authorize "any constable," which suggests that it is left open to him to authorize any constable or constables to execute the warrant, on the general principle that in Statutes singular words include the plural. When it is remembered that at common law a warrant might be addressed to any number of persons and executed by any one of them, it seems impossible to suppose that the magistrate should be bound to address the warrant to any constable by name. It was suggested, though the point was not expressly referred to in the judgment of the Supreme Court, that some alteration of the common law was to be inferred from the use of the words "special warrant," and it was suggested that those words mean a warrant addressed to some constable by name. That certainly is a possible construction, but after the very full argument put before us, we can, I think, discover the real meaning of the words in this connection. It is a good instance of the assistance to be derived from the historical argument in construing a Statute. This section is intended to be a re-enactment of sec 1 of 14 Vict. No. 9. That was itself an enactment in New South Wales of the English Act 8 & 9 Vict. c. 109. The words are practically the same. Sec. 3 of that Act uses the words "special warrant." We find also that, by the Act 42 Geo. III. c. 119, which also related to gaming, power was given to a justice, by sec. 4, "by special warrant to authorize or empower any person or persons to break open the doors or any part of such house or place where such offence shall have been committed," and to enter and seize all offenders. That was in 1802. So long ago as that the term "special warrant" was in use. In an earlier Act, 25 Geo. II. c. 36, passed in the year 1751, which was an Act for, amongst other things, the regulation of places of public entertainments, it was enacted that "it shall and may be lawful to and for any constable or other person being thereunto authorized by warrant under the hand and seal of one or more of His Majesty's justices of the peace to enter such house or place and to seize every person found therein," &c.

There the word "special" was not used. The term "special warrant" therefore was a new term which came into use between 1751 and 1802, and on inquiry we find that very good reason had occurred for using it. Shortly after 1751 the question arose, in the case of the North Briton Newspaper, Wilkes' case, as to the validity of what were called "general warrants." In 1756 the celebrated resolutions of the House of Commons declaring general warrants to be illegal were passed. In the case of Money v. Leach, 19 H.S. Tr., 1001; 1 Wm. Bl., 555, a case of trespass and false imprisonment for acts done under a general warrant, the question arose whether such warrants were valid. The marginal note is "General warrants are illegal and void." That case was decided in 1765. During the argument it was pointed out by Sergeant Dunning, that Lord Chief Justice Scroggs' general warrants had been made a ground of parliamentary impeachment, and then the Court proceeded to consider the question whether general warrants were good. The warrant in that case was to search for the authors, printers and publishers of a certain seditious and treasonable libel, and to apprehend and seize them together with their papers, not for the apprehension of any particular person or to search any particular place. It was held to be bad on the ground that it was a general warrant. In Wilkes v. Wood, (1763) 19 H.S. Tr., 1153, the same point had arisen and had been decided in the same way. In Burns' Justice of the Peace, p. 1131, general warrants, to apprehend all persons suspected, and bring them before a justice, are compared to blank warrants, and there is a precedent in Dalton, which gives the form of a special warrant as distinguished from a general warrant. The subject is dealt with in 2 Hawk. P.C., p. 130, sec. 10 (8th ed.), where the learned editor adopts the statement of the law in Money v. Leach.

There is therefore no doubt, regarding the matter historically, as to what was the meaning of the term "special warrant," when it was first used in England; that it meant a warrant which did not purport to authorize the person to whom it was addressed to search for and arrest any person whom he thought fit, or to search any place that he thought fit, but was limited to some particular person or to some particular place. Sometimes the term "limited warrant" was used in the same sense in contradistinction to "general warrant." There is no doubt that, the attention of the people of England having been drawn by these well known cases to this distinction between general and special warrants, subsequent Acts of Parliament used the term "special warrant" in that sense, and there can be no doubt that that is the sense in which the term is used in this Act. It does not, therefore, suggest any intention on the part of the legislature to limit the authority for the execution of the warrant to any particular person or persons. Only one case was cited to us from the English Courts in which the Statute 8 & 9 Vict. c. 109 was discussed; Blake v. Beech, 1 Ex. D., 320. In that case the same point was not involved, but in the report it appears that the "special warrant" issued in that instance was addressed to "the constables of the Borough of Bolton in the County of Lancaster, and to all other police officers of the county aforesaid." It did not occur to anyone in that case to object that there was anything wrong with the warrant. It appears, therefore, to be the practice in England to address these warrants to the constables at large. We were informed by Mr. Blacket that that is also the practice in New South Wales. Under these circumstances I cannot find anything in the Act to alter the common law or to restrict the power of the magistrate to issue warrants empowering any member of the police force to carry them out, and I think, therefore, that the appeal must be allowed.

A motion was made by the respondent that the special leave to appeal should be rescinded on the ground that the case was not of sufficient importance to justify the Court in granting leave. It was pointed out at the time when the motion for special leave was made that the matter was of considerable importance, as the practice of issuing warrants in this form had been carried on for so many years. Moreover, if the warrant were held to be bad, the appellant, who acted upon it in accordance with the practice in England and other parts of Australia, had exposed himself to a number of actions for trespass and false imprisonment to which he would have had no defence. In my opinion there is no sufficient ground for rescinding the leave to appeal, and the motion therefore fails.

Barton, J., and

O'Connor, J.,

concurred.

Appeal allowed. Order of the Supreme Court discharged with costs. Case remitted to the magistrate for his determination with the expression of the opinion of the Court. Motion to rescind dismissed with costs.

Solicitor, for the appellant, The Crown Solicitor for New South Wales.

Solicitor. for the respondent, J. W. Abigail.