Williamson v Brown [1914] HCA 46; (1914) 18 CLR 433 (4 September 1914)

HIGH COURT OF AUSTRALIA

Williamson Appellant; and Brown Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

4 September 1914

Griffith C.J., Isaacs and Gavan Duffy JJ.

Garland K.C. (with him Pickburn), for the appellant.

Knox K.C. (with him Armstrong), for the respondent.

Garland K.C., in reply.

Griffith C.J.

The point for decision in this case, which is a short one, arises under secs. 4, 5 and 6 of the Lunacy Act of 1898.

Sec. 4 of that Act provides, in substance, that, upon information on oath before a justice that a person deemed to be insane is without sufficient means of support or is wandering at large or has been discovered under circumstances that denote a purpose of committing some offence against the law, the justice may require a constable to apprehend such person and bring him before two justices. It also provides that in the second and third cases mentioned, that is, where the person is wandering at large or has been discovered under circumstances that denote a purpose of committing an offence against the law, a constable may without any such order apprehend him and take him before two justices. That is to say, there are three cases in which a person deemed to be insane may be brought before justices, in one of them with, and in two with or without, a justice's order.

Sec. 5 deals with two other cases. When it comes to the knowledge of a constable that any person deemed to be insane is not under proper care and control or is cruelly treated or cruelly neglected by any relative or other person having or assuming the care or charge of him, the section enacts that it shall be the duty of the constable to give information to a justice, and that thereupon the justice shall make certain inquiries, and, if he thinks there is reason for so doing, shall make an order requiring a constable to bring the person before two justices.

There are, therefore, five distinct cases in which a person deemed to be insane may be brought before justices for inquiry into his sanity. In two of them he may be so brought by a constable of his own motion; in three of them, including those two, any person may induce a justice to make an order for that person to be so brought; and in the other two cases the constable is bound to seek the opinion of a justice.

Then sec. 6 provides what is to happen when these steps have been taken. "The justices before whom any such person as aforesaid is brought shall call to their assistance any two medical practitioners who have previously examined such person apart from each other and separately signed certificates with respect to such person according to the form in Schedule Two of this Act, and if upon examination of such person" (that is, the person brought before them) "and such medical practitioners and upon other proof (if any) such justices be satisfied" of any one of the five facts which would justify bringing him before two justices or the issue of an order to bring him before two justices, and if they are also satisfied that he is "a proper person to be taken charge of and detained under care and treatment," the justices may make an order to that effect.

In the present case the respondent was brought before a stipendiary magistrate, who has the authority of two justices, by a constable exercising the power conferred by sec. 4. The cause for which he was brought there was that he was a person deemed to be insane who was discovered under circumstances that denoted a purpose of committing some offence against the law. He was therefore lawfully brought before the stipendiary magistrate; and the question is whether, he having been so brought before him, the magistrate could exercise the powers conferred by sec. 6 read literally, and make an order for any of the five causes mentioned in secs. 4 and 5, or whether sec. 6 is to be construed reddendo singula singulis, in the sense that the magistrate is confined to the particular matter alleged as the cause of bringing the person before him.

Secs. 4 and 5 are substantially old re-enactments of English law, the oldest Statute to which we have been referred being 8 & 9 Vict. c. 126, secs. 48 and 49, which contain provisions substantially the same as those in secs. 4 and 5. On consideration of those sections it was held in 1850, in R. v. Inhabitants of Rhyddlan[1], that the provisions were directory only, and that when a person was in fact brought before a justice the justice had jurisdiction to make the inquiry, and that his order was justified, no matter how the lunatic came to be brought before him. In the present case it is not necessary to go so far as to say that it does not matter how a person is brought before the magistrate. The terms of sec. 6 are in form quite general. It provides that if "any such person"—that is, in the most limited meaning of those words, a person in respect of whom any of the five conditions mentioned in secs. 4 and 5 is alleged to exist—is lawfully brought before justices they shall have the jurisdiction stated. According to the literal terms of the section the justices may inquire whether any of the five conditions exists as to the person brought before them, not whether the fact originally alleged against that person has been established. If any of the five matters mentioned in sec. 6 is established, the section declares that they may make an order. I am unable to find any real ambiguity in sec. 6, and I do not see any reason why an ambiguity should be artificially imported into it. On the contrary, the five conditions run into one another, and it might well be that where, for instance, a constable had arrested a man supposed to be insane because he was wandering at large, it would be found after inquiry that it was more correct to say that he was not under proper care and control.

I think, therefore, that the case falls within the literal terms of sec. 6, and that the order of the magistrate was properly made. There was therefore no ground for granting a habeas corpus, and the rule nisi should have been discharged.

No question of the sanity of the respondent or of the propriety of his detention was involved on the application for the habeas if the order was properly made. If such a question had been involved I agree that the order made by the Supreme Court would have been a proper one to make.

Isaacs J.

I agree with what has been said by the Chief Justice.

The argument for the respondent is that the opening words of sec. 6 must be read, so to speak, distributively—that the words "any such person" must be read as "any person deemed to be insane and against whom some particular one of the five sets of circumstances mentioned is alleged," and that the word "brought" is to be read with reference to the particular allegation or set of circumstances in question. I think that the word "any" is very strong to show that no such distributive limitation is intended, and with regard to the words "such person" I personally do not entertain any doubt that they mean "a person deemed to be insane."

Two matters seem to strengthen that position very much. The first is that the same two words "such person" are used in the second limb of sec. 4—"every constable finding any such person" &c. Those words there must mean "a person deemed to be insane." And when we look at the third Schedule, which is the form of order mentioned in sec. 6 which the justices may make, I find that it recites that the justices have examined the person (naming him) "who has been brought before us as being deemed to be insane." Then it goes on to recite that the justices are satisfied that he is insane and that he falls within one of the five classes stated in sec. 6. Now, that convinces me that the words "such person" in connection with the word "brought" in sec. 6 mean simply the person previously mentioned as having been deemed to be insane.

Then the word "brought" is left general so far as the mode of doing it is concerned. On the lowest basis it applies with equal force whether the person is "brought" before the justices under the first limb or under the second limb of sec. 4 or under sec. 5. He is equally "brought" within the meaning of the Act in whichever of those ways he is brought. The object of the Act is, in the words of sec. 6, the care and treatment of the man. That is not penal but is protective, and I see no reason for limiting the words of an enactment which is obviously intended for the protection of persons who are supposed to be unable to protect themselves.

I agree in the order suggested by the Chief Justice.

Gavan Duffy J.

After hearing the arguments which have been addressed to us I am not convinced that the view taken by the other members of the Court is correct, but I am not prepared to dissent formally from the conclusion at which they have arrived.

Appeal allowed. Order appealed from discharged. Rule nisi for habeas corpus discharged. Appellant to pay respondent's costs of the appeal.

Solicitor, for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitor, for the respondent, W. Carter Smith.

[1] 14 Q.B., 327.