McCann v Butcher [1917] HCA 49; (1917) 23 CLR 422 (18 September 1917)

HIGH COURT OF AUSTRALIA

McCann Informant, Appellant; and Butcher Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

18 September 1917

Barton, Gavan Duffy and Powers JJ.

Mann, for the appellant.

Starke (with him Cussen), for the respondent.

Barton J.

In this case an information was laid, following the terms of sec. 104 of the Police Offences Act 1915, alleging that the defendant "was in a certain street, to wit certain enclosed land known as Gurney's Running Ground ... within the municipal district of the City of Melbourne, for the purpose of money being received by him as the consideration for an undertaking by him the said defendant to pay thereafter money on certain sporting contingencies." By sec. 106 the word "street" used in this information "includes and applies to every road street thoroughfare highway lane footway or footpath on any public or private property, and also extends and applies to any enclosed or unenclosed land (not including houses and race-courses) within any municipal district which on the sixth day of March one thousand eight hundred and ninety-six was a city or town." The locality on which the offence is alleged to have been committed is what is called Gurney's Running Ground, and is shown to be within the municipal district alleged. The question really is whether such a place as Gurney's Running Ground is within the second branch of the definition so as to be within the meaning of the Act a "street." Now, it is very plain that fixing an artificial name for the description of a thing which in common parlance does not answer to that name is a thing very commonly done, especially in Statutes. Cases are numerous in which appellations are given to things, persons and circumstances which they could not in ordinary conversation bear or be supposed to bear. Therefore the fact that the word "street" is used to cover a multitude of things which do not ordinarily answer to the description of a street is a thing very much to be expected, according to the common practice of definition. Is this ground enclosed land, not being a house or race-course, within the City of Melbourne? That is the short question. If it is, it is a "street" unless the meaning of the words of the definition has been entirely altered by a context which, to use the words of Jessel M.R., is stronger or at least equally strong. Various other sections have been pointed out by Mr. Starke, and with great force, no doubt. This is a consolidating Act, and is a collection of enactments passed from time to time to answer various purposes, and it may very well be that Mr. Starke is right in saying that, if the language of sec. 106 is construed strictly, some things which it covers, or in some cases offences such as that now charged, are efficiently provided for in other parts of the Act. To my mind that is not a circumstance which should outweigh the unambiguous language of this Act. The words "enclosed or unenclosed land (not including houses and race-courses) within any municipal district which on the sixth day of March one thousand eight hundred and ninety-six was a city or town" are so clear as to be unmistakable, and it would take an extraordinarily strong context to show that they do not mean what they say. The circumstance that a consolidating Statute like this affords instances in which a thing which would be the result of a literal interpretation of this definition might also be made subject to prosecution by utilizing another part of the Act, cannot, to my mind, countervail the clear language of the section.

I am therefore of opinion that the information was erroneously dismissed, and that the appeal should be allowed.

I am at liberty to say that my brothers Gavan Duffy and Powers concur in this judgment.

Appeal allowed. Order appealed from discharged. Respondent convicted of the offence charged and fined £20, in default distress. Appellant to pay the costs of this appeal and of the proceedings below.

Solicitor for the appellant, E. J. D. Guinness, Crown Solicitor for Victoria.

Solicitors for the respondent, Nolan & Nolan.