Ex parte Spencer [1905] HCA 9; (1905) 2 CLR 250 (4 April 1905)

HIGH COURT OF AUSTRALIA

Ex parte Spencer and Others.

Sherwood Complainant;Spencer and Others Defendants.

H C of A

On appeal from the Supreme Court of New South Wales.

4 April 1905

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

Lamb for the applicants.

Griffith C.J.

There is no doubt as to the principle which is relied upon by Mr. Lamb, or which he professes to rely upon. He contends that the defendants, when they were charged upon the second occasion, had already been convicted of another offence upon substantially the same facts. The test to be applied in such cases has been laid down in old authorities, cited in Archbold (Criminal Pleading, Evidence and Practice, 22nd ed., p. 159), and also in the Supreme Court of New South Wales, by Martin C.J. in the case of R. v. Bingham[1]. It is this: Would the evidence that was necessary to support the second charge have been sufficient to procure a legal conviction on the first? That test has only to be applied to the facts of the present case to dispose of the matter.

The applicants were charged with being found in a common gaming house without lawful excuse, and were convicted and fined. Afterwards they were charged with assisting the keeper of the house in conducting the business of betting that was carried on there. All that was necessary to support the second charge was to prove that the house was kept, by the person who kept it, for the purpose mentioned, and that the defendants assisted him. Now, on the proof of those facts, could they have been convicted on the first charge? Clearly not. If that had been all the evidence given on the first charge, the case must have been dismissed. That is sufficient to dispose of the application.

The decision of the Supreme Court, so far from being open to doubt, appears to be obviously right, and this application therefore should be refused.

Barton J. and

O'Connor J.

concurred.

Leave refused.

Solicitors for applicant, Crick & Carroll.

[1] 2 N.S.W. L.R. (L.) 90, at p. 92.