McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409 (3 May 1918)

HIGH COURT OF AUSTRALIA

McDonnell Informant, Appellant; and Smith Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

3 May 1918

Barton, Gavan Duffy and Rich JJ.

Knox K.C. and H. E. Manning, for the appellant.

Blacket K.C. and Alec Thomson, for the respondent.

Barton, Gavan Duffy and Rich JJ.

Per Curiam.

This appeal must be dismissed. The cases mentioned by Rich J. are apposite. A difficulty in the way of the appellant is that if his argument is to prevail the words "prosecuted summarily" in sub-sec. 3A must be read as being equivalent to "dealt with." The Legislature when it said "prosecuted" did not mean "dealt with." What the Legislature has said means that a prosecution shall not be begun without the prescribed consent, and the prosecution is begun when the information is laid. The decision of Ferguson J. was right, and the appeal must be dismissed with costs.

Appeal dismissed with costs.

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

Solicitor for the respondent, E. R. Abigail.