R v Judd [1919] HCA 9; (1919) 26 CLR 168 (28 April 1919)

HIGH COURT OF AUSTRALIA

The King Appellant; and Judd Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

28 April 1919

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

Leverrier K.C. (with him Bathgate), for the appellant.

Mack K.C. (with him J. J. Watkins), for the respondent.

Griffith C.J.

I can express what I have to say in a very few words. I am unable to find any indication of an intention contrary to the express words of sec. 19 of the Acts Interpretation Act. The question is entirely one of construction. We have to find the contrary intention in the language of the Legislature. I can see no indication whatever in the War Precautions Act of any contrary intention. The only ground suggested for saying that a contrary intention appears is that a wiser Legislature might have enacted differently. But that is no business of ours. We have only to consider the language which the Legislature has used.

I think, therefore, that the appeal should be allowed

Barton J.

I am of the same opinion. I see no evidence of a in sec. 6 (3A). I think that sec. 19 of the Acts Interpretation Act not only can, but must, apply in the circumstances, for sec. 19 of the Interpretation Act is absolutely general, and there is nothing in sec. 6 (3A) by which its application can be restricted. I also think that support for this view of the intention of Parliament is obtained from secs. 32 and 33 of the Acts Interpretation Act.

Isaacs J.

I think the appeal should be allowed. My reasons are shortly these:—We have to find in the War Precautions Act some intention contrary to that expressed in sec. 19 of the Acts Interpretation Act. That contrary intention is certainly not expressed, but it is said that it is to be implied from the fact that sec. 6 (3A) is couched in negative terms. But when the Commonwealth legislation existing at the time sec. 6 (3A) was passed is looked at, a reason is found for the form in which sec. 6 (3A) is enacted. The legislation then existing related both to summary procedure and to procedure by way of indictment. As to summary procedure, that was provided for by sec. 13 of the Crimes Act 1914, which allowed any person to institute proceedings; and as to indictment, that was found in sec. 69 of the Judiciary Act, which provided that indictments should be in the name of the Attorney-General or of some person commissioned by the Governor-General. When the Act No. 39 of 1915 was passed, the law was amended in a way which allowed the Executive to take steps for the safety of the Commonwealth and of the Empire which might be of a very drastic character, and the enforcement of regulations made under that Act might involve a great deal of discretion on the part of the public authority. The Legislature, while giving those powers, provided by sec. 6 (3A) a safeguard to the individual in this way, that no prosecution should be instituted either summarily or by indictment, except by executive authority. To carry that out, they provided that summary procedure should be with the written consent of a Minister of State, either the Attorney-General or the Minister for Defence, specially named, or some person under the written authority of one of those Ministers of State; and that in the case of an indictment it should be in the name of the Attorney-General, cutting out for the purpose of the Act the provision in sec. 69 of the Judiciary Act as to a person who was commissioned by the Governor-General. That left the whole thing really in the hands of the Executive Government. But, that having been done, there is no reason why the power should be confined to any particular member of the Executive Government, and therefore there is no reason why sec. 19 of the Acts Interpretation Act should be annulled for that purpose. It is quite consistent with what was done that "Attorney-General" and "Minister for Defence" should continue to connote any Minister acting for or on behalf of those Ministers. I can find, therefore, no reason for implying an intention contrary to sec. 19.

The objection as to the Attorney-General not being for this purpose a Minister is untenable.

For these reasons I think the appeal should be allowed.

Gavan Duffy J.

The only question for our consideration is whether the indictment on which the respondent was tried was bad because it was not in the name of the Attorney-General as provided by sec. 6 (3A) of the War Precautions Act 1914-1915.

The power of the Attorney-General to prosecute by indictment is to be found in sec. 69 (1) of the Judiciary Act 1903, which is as follows: "Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf."

Sec. 71A (1), which is inserted by sec. 3 of the Judiciary Act 1915, permits the Attorney-General to prosecute by indictment without a preliminary examination or commitment for trial. It is as follows: "Notwithstanding anything contained in this Part, or any provision of any State law, the Attorney-General of the Commonwealth may file an indictment for any indictable offence against the laws of the Commonwealth in the High Court or the Supreme Court of a State, without examination or commitment for trial."

Sec. 6 (3A) of the War Precautions Act 1914-1915 gives no new power to the Attorney General, but in certain cases forbids prosecution by indictment in the name of any person other than the Attorney-General.

The indictment here was in the name of the Honourable Littleton Ernest Groom, Minister for Works and Railways, and was signed by him, and he was at that time acting for and on behalf of the Attorney-General. The real question to be determined therefore is whether the expression in sec. 69 of the Judiciary Act 1903 included Mr. Groom because of sec. 19 of the Acts Interpretation Act 1901. First it is said that sec. 19 does not apply to the present case because the expression in sec. 69 of the Judiciary Act 1903 and sec. 6 (3A) of the War Precautions Act 1914-1915 does not mean the Attorney-General as "one of the King's Ministers of State for the Commonwealth" (Acts Interpretation Act 1901, sec. 17), but the Attorney-General in some other capacity. In my opinion the power to prosecute by indictment is given to, and exercised by, the Attorney-General as the King's Minister of State, and in no other capacity. Next it is said that a "contrary intention appears" within the meaning of sec. 19. I agree with what has already been said on this point. I can see nothing in any Act of Parliament which indicates that a Minister acting for or on behalf of the Attorney-General should not be at liberty to act for him in prosecuting by indictment as well as in any other matter.

In my opinion the objection was rightly overruled, and the appeal should be allowed.

Rich J.

I agree that the appeal should be allowed for the reasons stated by my brother Isaacs.

Appeal allowed. Order appealed from discharged. Question answered in the affirmative. The prisoner to appear at the next sittings of the Supreme Court in its criminal jurisdiction for sentence in accordance with his bond.

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

Solicitor for the respondent, Albert C. Roberts.