Clyde v Bolot [1924] HCA 29; (1924) 34 CLR 144 (28 July 1924)

HIGH COURT OF AUSTRALIA

Clyde Informant, Appellant; and Bolot Defendant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of New South Wales.

28 July 1924

Isaacs A.C.J., Gavan Duffy and Starke JJ.

Alroy Cohen (with him Little), for the appellant.

Brissenden K.C. (with him Bathgate), for the respondent.

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

Isaacs A.C.J.,

Gavan Duffy and Starke JJ.

We think that these appeals should be allowed. With reference to the point put by Dr. Brissenden as to how far this Court is limited in dealing with the matter, the position is shown by the case of Bell v. Stewart[1], where it was put very clearly in the judgment of the Chief Justice and my brothers Gavan Duffy and Starke, that in such a case as this the form in which the case comes up to this Court is a mere matter of procedure, but the Court has jurisdiction, and therefore a duty in a proper case, to form its own opinion on the facts. In these cases the facts appear to us to be so clear that, even treating the matter as one where the issue is whether the Magistrate was at liberty to arrive at a particular conclusion, we should hold that the facts are only consistent with one conclusion. They show, in our opinion, that on these occasions there was amusement—that the dancing was for the purpose of amusement—and that whatever instruction was given was merely incidental and subordinate to the amusement character of the proceedings.

We therefore think that the appeals should be allowed.

Appeals allowed with costs. Conviction in each case. Penalty of £4 in one case and £2 in the other, with £3 7s. costs in the Court below.

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

Solicitor for the respondent, R. J. Dawes.

[1] (1920) 28 C.L.R., at p. 424.