Sweeney v Kelly [1908] HCA 53; (1908) 7 CLR 30 (28 August 1908)

HIGH COURT OF AUSTRALIA

Sweeney Appellant; and Kelly Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

28 August 1908

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

Walsh (of the Queensland Bar), for the appellant.

Griffith C.J.

It is clear that this is not a case for granting special leave to appeal. There is no point of law of general interest involved, and it is admitted that there are no merits. The only point involved is this: that the reasons given by one of the learned Judges in the Court below, if accepted as good law, might cause difficulties in the administration of justice. As he is reported in the copy of the judgment supplied to us, it appears that the learned Chief Justice was of opinion that it was not necessary for the prosecution to prove that notice had been given as required by sec. 25 of the Liquor Act 1886. The case of Walsh v. Doherty[1], which was recently decided by this Court, involved the question of the necessity not only of giving notice, but of proving the notice as a condition precedent to the prosecution, and I think that, if that had been brought to the attention of the learned Chief Justice, he would probably have taken that view. But it does not follow that in this case the conviction ought to have been quashed. It was laid down in the Supreme Court of New South Wales a very long time ago, in Ex parte Heggarty[2], and other cases, that the grant or refusal of a statutory prohibition (it is still called a prohibition in New South Wales) was discretionary and that the Court is not bound to quash a conviction upon a purely technical point. The same rule was laid down in Queensland in Irving v. Gagliardi[3]. Under the circumstances of this case I think that the Supreme Court might properly have exercised their discretion in discharging the quashing order, entirely apart from the question whether the evidence of service was sufficient or not. That is a matter which was open to a good deal of discussion. We are told that Power J. took the view that the Court was justified on the evidence and course of proceedings before the magistrate in inferring that proper notice was given. In any view there is no ground for granting special leave to appeal.

Barton J.,

O'Connor J., and

Isaacs J.

concurred.

Special leave refused.

Solicitor, for applicant, A. H. Pace, for W. J. Vowles, Dalby, Queensland.

[1] [1907] HCA 51; 5 C.L.R., 196.

[2] 3 S.C.R. (N.S.W.), 212.

[3] 6 Q.L.J., 155.