Walsh v Doherty [1907] HCA 51; (1907) 5 CLR 196 (8 October 1907)

HIGH COURT OF AUSTRALIA

Margaret Walsh Defendant, Appellant; and Thomas Doherty Complainant, Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

8 October 1907

Griffith C.J., Barton and Isaacs JJ.

Power, for the appellant.

Henchman, for the respondent.

Power in reply.

Griffith C.J.

The 25th section of the Liquor Act 1886 enacts that no licensee shall be convicted of any offence against certain provisions of the Licensing Act 1885, and of the Liquor Act 1886, "unless within fourteen days after the day on which the offence is alleged to have been committed notice in writing of the intended prosecution is given to the person intended to be prosecuted, specifying the section of the Act for breach of which the prosecution is intended to be instituted." Three times that section uses words importing futurity. It speaks of notice of an intended prosecution; of a person intended to be prosecuted; and of a prosecution intended to be instituted. It follows that the notice must be given before the prosecution is instituted. Now a prosecution is instituted by the laying of the complaint. In the present case no notice had been given when this complaint was laid, so that the case falls within the precise language of the Statute. There is no ambiguity, and there is no context to show that the plain words ought to receive some other construction. It follows, therefore, that the point taken by the appellant was a good one, and that the information ought to have been dismissed. I think the appeal should be allowed.

Barton J.

I agree; I think the case should have been dismissed.

Isaacs J.

I agree, and I would like only to add that in this case, whichever way you look at it, the prosecution must fail because the notice that was given was a notice that "an information will be laid against you." That was attempted to be proved in aid, not of an information afterwards laid, but of an information then already laid. The two things do not cohere; so, whatever interpretation is given to the section, there was absolutely no previous notice given at any time of the information that had been laid, and there was no summons afterwards issued in pursuance of the notice that was given.

Griffith C.J.

With regard to costs, we do not see any satisfactory reason for departing from the ordinary rule that the loser pays.

Appeal allowed; order appealed from discharged; order to quash made absolute with costs; respondent to pay the costs of the appeal.

Solicitors, for appellant, Chambers & Macnab.

Solicitors, for respondent, Hellicar (Crown Solicitor).