Mann v Doo Wee [1907] HCA 57; (1907) 5 CLR 592 (5 November 1907)

HIGH COURT OF AUSTRALIA

Mann Complainant, Appellant; and Doo Wee Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia Exercising Federal Jurisdiction.

5 November 1907

Griffith C.J., Barton and Isaacs JJ.

Thomas, for the appellant.

No appearance for the respondent.

Griffith C.J.

I think that where the learned Judge fell into error was in treating the order of the Chief Justice that the appeal should be by way of rehearing as a substantive order disposing of the appeal pro tanto, instead of, as it really was, a mere step in the hearing of the appeal itself. The application to the Chief Justice for that order, the order itself, and the subsequent hearing of the appeal before Rooth J. were all parts of a single proceeding, that is, the appeal. The case came properly before the Court of Appeal, and thereupon the appellant asked to withdraw his appeal and declined to proceed with it. At that time the conviction stood. The learned Judge, instead of dismissing the appeal when the appellant abandoned it, entered upon the hearing, and then allowed the appeal on the ground that no evidence could be given in the absence of the appellant. In the first place, I am of opinion that he ought to have dismissed the appeal as soon as the appellant abandoned it. In the second place, I have no doubt that the appellant was present in contemplation of law all through the proceedings, since he was there when they began. It was quite immaterial that he went out of Court while they were going on. If it had been necessary under the circumstances to hear evidence, I have no doubt that it was competent for the Court to do so; but, if it had then been necessary, I think it would now be necessary to remit the case for rehearing. But in the actual circumstances it was not necessary. A conviction stands until it is quashed. If an appellant when the appeal comes on abandons it, there is an end of the appeal, and the conviction remains in force. For these reasons I think that the learned Judge was wrong and that this appeal should be allowed.

Barton J.

Sec. 614 of the Criminal Code appears to relate only to the trial of indictable offences, and I do not think there can be any application of it in this case. The appellant, being present by his counsel at the calling on of the appeal, and having through his counsel abandoned the appeal, made the most cogent admission of the propriety of the original conviction which could be made in a Court of Justice, and therefore this appeal should be sustained.

Isaacs J.

I am of the same opinion. The respondent was summarily convicted, and sec. 183 of the Justices Act gave him an absolute right to appeal on complying with certain conditions. Those conditions were complied with, and he therefore was an appellant. Sec. 187, in prescribing the security for his appearance, directs that he should enter into a recognizance to appear before the Court to which the appeal is made, and to submit to the judgment of the Court. He cannot, in my opinion, by breaking the requirements of the Statute, put himself in a better position than if he complied with them. Then the Act goes on to provide for the hearing of the appeal, and sec. 191 provides that there may be a rehearing in either of two cases: If the parties agree, or if the Court to which the appeal is made so orders. But that is only, as has already been put by the Chief Justice, a matter of procedure; it is not the main order in the case; and if the appellant chooses to abandon his whole appeal he abandons it altogether, including any agreement for rehearing or any incidental order for rehearing which may have happened to be made. I think, therefore, that the view taken by his Honor Mr. Justice Rooth, that the order for a rehearing was the main order, was not correct; and that is shown very distinctly by this, that secs. 192 and 193 provide for cases where a decision is not affirmed by the appellate Court, and where the decision of the justice is affirmed by the appellate Court. If the decision is affirmed, then the order made by the justice, embodied in that decision, has to be carried out; the conviction stands, in other words, until it is set aside. It never was set aside, and although the appellant was enabled to take steps to challenge it, and did take steps to challenge it, he abandoned his right to do so; and the only consequence is that, having formally abandoned it, the original conviction stands. I agree therefore that the appeal should be allowed.

Appeal allowed. Order appealed from discharged. Conviction restored.

Solicitor, for appellant, Barker (Crown Solicitor).