R v O'Donoghue [1917] HCA 8; (1917) 23 CLR 9 (28 March 1917)

HIGH COURT OF AUSTRALIA

The King against O'Donoghue.

H C of A

28 March 1917

Isaacs, Gavan Duffy and Rich JJ.

H. I. Cohen, for the Crown.

Starke, for the accused.

The judgment of the Court, which was delivered by Isaacs J., was as follows:—

Isaacs, Gavan Duffy and Rich JJ.

In this case considerable doubt exists, to say the least of it, whether, in view of the amendment of the Judiciary Act made by Act No. 4 of 1915, there was any jurisdiction in the learned Judge to state the case which he has stated for the opinion of this Court. There is no power to grant special leave to appeal inasmuch as there has been no judgment, and therefore there has been no conviction in the strict sense (Burgess v. Boetefeur[1]). In the peculiar circumstances of the case, on account of the importance of the matter both to the accused and to the public and of the difficulties which would exist in any case in getting a formal judgment, we do not abstain from answering the questions put by the learned Judge. The Crown has intimated through its counsel that it will act upon the opinion of this Court. We will therefore announce our opinion, without in the circumstances of the case setting out our reasons, leaving the judicial exposition of the section for some future occasion, should it arise. The two questions the learned Judge has asked are (1) whether his direction was right as a matter of law and (2) whether the conviction should stand, the word "conviction" being there used in its popular and not in its strict legal sense. In our opinion the answer to both of those questions should be "No."

Questions answered accordingly.

Solicitor for the Crown, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the accused, W. H. Croker & Croker.

[1] [1844] EngR 567; 7 Man. & G., 481, at pp. 504, 505.