Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682 (19 April 1906)

HIGH COURT OF AUSTRALIA

Connolly Complainant; and Meagher Defendant.

Ex parte Connolly.

H C of A

Special leave to appeal.

19 April 1906

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

Blair State A.G. (with him Henchman) for the complainant applicant moved for special leave to appeal from the decision of the Supreme Court.

The judgment of the Court was delivered by Griffith C.J.

Griffith C.J.

Barton and O'Connor JJ.

The point sought to be raised is, no doubt, in one sense an important one. It is provided by sec. 16 of the Criminal Code that no person shall be twice punished for the same act or omission. That is not quite the same as the law which allows the defence of "autrefois convict," which is dealt with in secs. 17 and 598 of the Code. The rule in sec. 16 may or may not be identical with the common law, but it is the law of Queensland. In the present case the defendant had sold a bottle of porter on a Sunday to a boy under 14 years of age. It is an offence under the Licensing Act to sell liquor to a boy under 14 at any time, and he had been convicted of that offence. He was then charged, under another section of the Licensing Act, with the offence of keeping open his licensed premises for the sale of liquor on a Sunday. The only evidence of his keeping his house open on that day was the sale of that bottle of porter. The justices found as a fact that he did not keep his house open on the Sunday except for the purpose of selling that bottle of porter, and this under circumstances which made his act a not very heinous offence although it was a technical breach of the law, and they refused to convict. The point taken by the Attorney-General is that the keeping of the house open, and the sale of the liquor to the boy, were not the same act. The learned Judges of the Full Court based their decision principally on the finding of fact by the justices that the whole matter was substantially one act. We have not had the advantage of argument in support of that view, beyond the brief reason given by the learned Judges themselves; but at present it seems to us that there is a distinction between the keeping open of the house and the sale of the liquor. The keeping open of the house must be momentarily precedent to the sale. In the present case the interval of time was inappreciable, and in reality all that the defendant did was to open the door and give the boy a bottle of porter.

Technically, perhaps, the defence set up was not established; but it is clearly a case in which the justices, if they had thought themselves bound to convict, would most properly have exercised their jurisdiction, under sec. 19 (8) of the Code, to refrain from inflicting any penalty. This Court very rarely gives leave to appeal in a criminal case; and only then when questions of great public importance are involved. We are unable to see that any question of public importance is involved in an unsuccessful prosecution brought for the purpose of inflicting upon a man two punishments for what in substance, though perhaps not in technical form, consists of only one act. We think, therefore, that this is a case in which we ought not to give special leave.

Special leave refused.

Solicitor, for complainant, Crown Solicitor.