Mitchell v Barker [1918] HCA 13; (1918) 24 CLR 365 (15 March 1918)

HIGH COURT OF AUSTRALIA

Mitchell Defendant, Appellant; and Barker Informant, Respondent.

H C of A

On appeal from a Special Magistrate of the Northern Territory.

15 March 1918

Griffith C.J., Gavan Duffy, Powers and Rich JJ.

Cleland K.C. and Foster, for the appellant.

Mann, for the respondent.

Cleland K.C.

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

Griffith C.J.,

Gavan Duffy, Powers and Rich JJ.

This appeal, which is from a decision of a Special Magistrate of the Northern Territory, is brought on the assumption that his Court is a Federal Court within the meaning of sec. 73 of the Constitution—an assumption which is, at least, open to very great doubt. In R. v. Bernasconi[1] this Court held that the group of sections comprised in Chap. III. of the Constitution do not apply to a Territory of the Commonwealth. If that is right in its largest sense, the Special Magistrate's Court is not a Federal Court, and no appeal lies to this Court. It may be that a distinction may some day be drawn between Territories which have and those which have not formed part of the Commonwealth. But the Court, as now constituted, cannot say so. It is to be noted that while the Papua Act 1905 expressly gives an appeal to this Court, the Northern Territory Acceptance Act does not do so, while the Northern Territory (Administration) Act gives an appeal to the Courts of South Australia. On the other hand, whether the Court is a Federal Court or not, it is quite clear that sec. 8 of the Northern Territory Acceptance Act 1910 gave it ample jurisdiction to deal with all cases which it could have dealt with before the creation of the Territory, and this appeal, so far as it is based on the ground that the Special Magistrate had no jurisdiction, must fail.

The jurisdiction which the Magistrate exercised was that given by sec. 68 (2) of the Judiciary Act, which provides that "The several Courts of a State exercising jurisdiction with respect to (a) the summary conviction ... of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere." This tribunal, while the Northern Territory was part of South Australia, had jurisdiction to deal with all offences against the laws of the Commonwealth committed within South Australia. This was a prosecution for an offence against the laws of the Commonwealth committed in the Territory. But Mr. Cleland says that when the Territory ceased to be part of South Australia these words were no longer applicable. The jurisdiction conferred was a jurisdiction both as to subject matter and as to locality. So far as the jurisdiction as to subject matter is concerned it is not affected by the change in its source, and so far as regards locality the jurisdiction was not diminished by the change in the political status of the Territory. The old jurisdiction, both as to locality and as to subject matter, was renewed by sec. 8 of the Northern Territory Acceptance Act. So that either this Court has no jurisdiction to entertain the appeal or the Magistrate had jurisdiction to deal with the charge. As to the merits there are none, and the conviction was quite right. It would therefore be idle to adjourn this appeal for further argument before a Full Bench on the abstract question whether the Magistrate's Court was a Federal Court, for, quacumque viâ, the Magistrate had jurisdiction, and the appeal must be discharged.

As to the penalty, that is a matter as to which we are not in a position to say whether it was or was not too high. But if there is any ground for an appeal to the mercy of the Government, that course is still open. The only order we can make is to dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitor for the appellant, F. Kelly, Adelaide (for R. I. D. Mallam, Darwin), by McCay & Thwaites.

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

[1] [1915] HCA 13; 19 C.L.R., 629.