Millard v R [1906] HCA 22; (1906) 3 CLR 827 (27 April 1906)

HIGH COURT OF AUSTRALIA

Millard v The King.

H C of A

On appeal from the Supreme Court of New South Wales.

27 April 1906

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

Noble, for the applicant,

April 27th

Griffith C.J.

Barton and O'Connor JJ.

This Court is very reluctant to grant special leave to appeal in criminal cases, and will not do so unless some point of great general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice. In the present case the only point that can fairly be said to be open to discussion is the question whether the appellant was or was not a bailee of the money in question. If he was a bailee there was ample evidence that he fraudulently converted the money to his own use. But the point whether he was a bailee or not was never distinctly taken. It was not taken by his advocate at the trial; it was not reserved by the learned Judge for the consideration of the Full Court; nor was it argued by learned counsel who appeared before that Court. That is a sufficient reason why we should not allow it to be raised now. We do not assume the functions of a general Court of appeal in criminal cases, such as, it has been suggested, should be established in England. We do not think that we ought to allow the point to be raised here for the first time, especially when it was not a point that learned counsel came here to raise.

We therefore think that special leave to appeal should be refused.

Leave refused.

Solicitor, for applicant, H. A. Moss.