McKinnon v R [1927] HCA 55; (1927) 40 CLR 217 (10 December 1927)

Apart from any statutory restriction the order complained of was lawful. In Beecher's Case[1] it is stated that "to every fine imprisonment is incident." Reference is there made to Co. Litt, 126b, and that is to the same effect. The case of R. v. Woolf[2] is a clear precedent for the course taken by the learned Judge of the Supreme Court of the Northern Territory so far as the common law is concerned. It was argued, however, that in secs. 365, 366 and 367 of the Criminal Law Consolidation Act 1876 is found a specific method of execution prescribed which displaces the common law rule. We cannot accept that argument. The context so controls the word "fines" as to make that an unreasonable interpretation. Reading the three sections together, and with the help of Schedules F and G, a "fine" within those sections does not include a fine inflicted as punishment for an offence, as to which the defendant must have the fullest opportunity of being heard, and urging his defence before sentence. To such a case, the procedure is so inappropriate that nothing short of very distinct words could make the legislation deprive the Crown of an age-long remedy for immediately executing the sentence of a Court. The judgments in the case of R. v. Justices of Ely[3] on the corresponding but narrower English legislation may be usefully read in this connection.

Mr. Mitchell, after examining Act No. 466 of 1889, candidly conceded that it governed this case and made the order erroneous. He asked this Court, therefore, to make the proper order as in its discretion it thought right. The Court, however, must judge for itself as to the applicability of the Act, that is, whether the word "fines" in that statute includes a fine imposed by way of punishment for an offence. In our opinion it does include such a fine, and is applicable to this case. It begins with a recital of a broad and remedial character: "Whereas it is desirable to abolish imprisonment for debt, except in certain cases." Sec. 2 enacts: "From and after the passing of this Act no person shall be arrested or imprisoned for making default in payment of a sum of money." Then follow exceptions to which we shall refer presently. The main rule is that imprisonment for "debt" is to be "abolished," a potent word; and by "debt" is comprehended "a sum of money" payable. Those expressions singly or in combination would literally comprehend the fine in this case. R. v. Woolf[4], when the judgments are read, shows that, apart from Act No. 466, (a) the fine is a debt of record to the King; (b) it was payable instanter; (c) the order for imprisonment is a remedy for payment; and (d) other remedies coexist. If nothing more appeared a very serious question would arise whether the legislation extended to the Crown. That difficulty, however, is, as we think, cleared up by some express provisions of the statute. The first exception in sec. 2 is:—Default in payment of a fine or penalty or sum in the nature of a fine or penalty other than a fine or penalty in respect of any contract. A fine as a punishment is a pecuniary penalty the payment of which marks the end (finem) of the whole proceeding including punishment. Used in collocation with "penalty" the primary meaning is confirmed. See, for instance, the interchange in the Ordinance No. 6 of 1850, where "fined" (sec. 1), "pecuniary penalty" (sec. 18), "penalty" (sec. 22), "sum adjudged to be paid" by a conviction (sec. 22), "penalty" (secs. 31 and 46), are used indiscriminately for the same thing. Again, see secs. 273, 281 and 282 of the Local Courts Act 1886 (No. 386). In the Minor Offences Procedure Act 1869 (33 Vict. No. 8) the word "fine" is employed as a punishment for an offence, and imprisonment for non-payment is limited to six months. It appears clear, therefore, that the South Australian Parliament, in using its accustomed terminology in relation to a familiar subject matter, was in passing the Act of 1889 making a general rule for what had been partly provided for, namely, the maximum duration of imprisonment for non-payment of a fine or pecuniary penalty. Since no other view would give any reasonable operation to the words "fine or penalty" in the first sub-section to sec. 2, it follows that the Crown debt in this case is governed by the Act of 1889. The exclusion of contractual fines and penalties strengthens the primary meaning. We therefore think the concession made by Mr. Mitchell was well founded.

The order ought to be amended by adding the words: "But not for any period exceeding six months."

It seems to me that Mr. Mitchell, for the Crown, has clearly shown that at common law the Court of King's Bench had power to order imprisonment until payment of a fine imposed for a misdemeanour (Beecher's Case[5]; R. v. Hord[6]; Groenvelt's Case[7]; Russell on Crimes, 8th ed., p. 217; Chitty's Criminal Law, 2nd ed., vol. i., p. 721; vol. iv., p. 373; R. v. Trueman[8]; Short and Mellor's Crown Practice, 2nd ed., p. 132; and see Fischer v. Hayes[9]).

It seems to be clear also that the Supreme Court of South Australia has prima facie the powers of the Court of King's Bench; and that the Supreme Court of the Northern Territory has the powers of the Supreme Court of South Australia (Supreme Court Ordinance 1911-1922, secs. 4, 9).

But we have to apply the South Australian Criminal Law Consolidation Act 1876; and if we find that under the Act the Supreme Court of South Australia has no power to imprison until payment of a fine, the Supreme Court of the Northern Territory has not that power. Sec. 304 is the section which defines the offence and the punishment: "Whosoever shall maliciously publish any defamatory libel shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to a fine or imprisonment, or both; such imprisonment not to exceed one year, and such fine not to exceed five hundred pounds." In the present case there has been no record made up; but the words of the learned Judge were:—"The judgment or sentence is that the accused pay a fine of £200. The accused will be imprisoned in the Darwin gaol without hard labour until the fine be paid." The judgment was delivered on 30th September last; and the defendant has remained in the gaol till now; and, according to the terms of the order, he will remain there till his death unless he pay. The leave to appeal granted by this Court is limited to the question whether the Supreme Court had authority to impose a fine upon the appellant and to direct that he be imprisoned until the said fine be paid.

Now, there is nothing said in sec. 304 as to the mode of enforcing the fine. This is a consolidating Act, meant presumably to contain all the law on the subjects consolidated; and the only means of enforcing the fine that I can find is that prescribed by secs. 365-367. These sections seem to apply to all fines imposed by way of punishment, as well as to all recognizances forfeited; and under the machinery prescribed it would appear that the primary remedy for recovery of a fine is execution against the goods; and that, until to the writ of fieri facias the sheriff returns that the party has no effects, no writ of capias for the body of the debtor can be issued (Sched. I.). Secs. 365-367 are imperative; and they apply to all fines by way of punishment. At the end of every sitting of the Court the associate (or clerk of arraigns) shall prepare a schedule of all fines imposed (and recognizances estreated) during the sitting, containing the names, residences and descriptions of the parties, the amount imposed on each, the reason; and the schedule has to be certified by a declaration of the associate made before a Judge, and to be filed of record; and the associate shall thereupon deliver to the sheriff a sealed precept requiring him to summon the persons named in the schedule. The form of precept commands the sheriff to demand of the several persons named in the schedule the several fines, &c., set against their respective names, and to summon such of the persons "as shall make default in payment thereof" to appear before the Supreme Court at a certain day and hour to show cause why the fine, &c., should not be levied by process of the Court, and to have there this writ (precept) and "all sums of money received by you in pursuance thereof." This would seem to show that the fine need not be paid until after the demand made by the sheriff. Then (sec. 366) the sheriff shall issue a written demand and a summons, and cause the same to be served upon each person named in the schedule; and shall return the precept to the Court "with an account of all sums collected and received by him thereunder." Then (sec. 367) on the first day of every term every such schedule shall be brought by the associate into Court, and the sheriff shall attend the Court and answer questions, and the names of the several persons against whom fines, &c., shall therein be set—"which shall not have been paid to the sheriff"—shall be called; and unless the parties respectively show good and sufficient cause why the fines, &c., should not be paid the Court shall direct the chief clerk to issue to the sheriff a writ of fieri facias for levying the same; and on a return by the sheriff of the writ certifying that any of the parties have no effects whereon the sums can be levied, a writ of capias shall issue against the parties in default, and such writs shall be executed by the sheriff "according to the exigency thereof respectively." The writ of capias recites that there were no effects, and commands the sheriff to take the several persons and safely keep them so as to have their bodies before the Supreme Court to satisfy the several sums of money.

Now, these sections seem to me not only to omit but to be inconsistent with the alleged power of the Court to order imprisonment (for non-payment of a fine) otherwise than in accordance with the sections. For example, there is no exemption from the demand and summons of persons fined who may have paid before the demand. I take the meaning of the Act to be:—"This is the mode of enforcing a fine. There is to be a general collection of fines, &c., at the end of every sitting. As soon as the sheriff makes the demand at the end of the sitting, the person fined must pay or be summoned; or unless the defendant show good cause, he is to have a levy on his goods; and it is only when the levy on the goods fails that the capias can be issued and the man imprisoned." (See also Re Brown[10]; In re Clew[11]). It would be indeed anomalous to find that where the Legislature has been sedulous to prevent the loss of liberty until the loss of goods has been tried and failed, a Judge should be enabled to take a short cut, and put the defendant into gaol at once on conviction. This Act, to consolidate and amend the stated law on the subject of crimes, presumably covers the whole ground (see Craies on Statute Law, 3rd ed., pp. 60, 61, 301-304).

In my opinion the order so far as it provides for imprisonment for non-payment of the fine is wholly wrong.

But even if this view be not accepted, if there is power to order imprisonment until payment, the order would have to be limited to imprisonment for six months at the most. This is the result of the South Australian Abolition of Imprisonment for Debt Act of 1889. Sec. 2 of that Act provides that no person shall be imprisoned for making default in payment of a sum of money except (inter alia) (i.) default in payment of a fine or penalty "Provided that no person shall be imprisoned, in any case excepted from the operation of this section, for a longer period than six months." In England, the limit is one year (Debtors Act 1869, sec. 4).

The order, therefore, is wrong; and, in my opinion, as the Court has power to "make such order ... as it thinks just" (Ordinance, sec. 21), the judgment or sentence should be simply that the accused pay a fine of £200. But if my view of the Criminal Law Consolidation Act be not accepted, the words "or the expiration of six months, whichever event is earlier," should be added to the existing order.

The appellant was convicted before the Supreme Court of the Northern Territory of publishing a false, scandalous, malicious and defamatory libel and was sentenced to pay a fine of £200 and the Court directed that he be imprisoned in the Darwin gaol without hard labour until the fine be paid (Northern Territory Acceptance Act 1910, sec. 7; Criminal Law Consolidation Act S.A. 1876, No. 38, sec. 304; Supreme Court Ordinance 1911-1922. An appeal by leave has been brought to this Court, the leave limiting the appeal, however, to the question whether the Supreme Court had authority to impose a fine upon the appellant and to direct that he be imprisoned until the fine be paid (Supreme Court Ordinance 1911-1922, sec. 21). The authorities cited at the Bar show that the sentence and direction were according to the course of the common law. Imprisonment, as the old cases say, was incident at common law to every fine; in the event of a fine being imposed the defendant might have been committed to the King's prison until the fine was paid. Even if the defendant were not committed a capias pro fine might issue for the enforcement of the fine, or its recovery might be enforced by a fieri facias or a writ of levari facias (Co. Litt., 126b; Beecher's Case[12]; R. v. Woolf[13]; Duke's Case[14]; Chitty's Criminal Law, 2nd ed., vol. iv., p. 374; Greaves' Criminal Law Acts, 2nd ed., pp. 9 et seqq.; Short and Mellor's Crown Practice, 2nd ed., p. 132; Mather's Sheriff and Execution Law, 2nd ed., p. 25).

It was argued that the provisions of secs. 365-367 and 411 of the Criminal Law Consolidation Act 1876 displaced the procedure at common law for the enforcement of a fine. Those provisions do simplify that procedure but, in my opinion, they leave quite untouched the common law power of a superior Court of Record to direct that a person sentenced by it to pay a fine shall be imprisoned until that fine be paid.

Almost at the conclusion of argument the attention of the Court was directed to the Abolition of Imprisonment for Debt Act of 1889 S.A.. This is based upon the English Debtors Act of 1869. Both the English and South Australian Acts prescribe that no person shall be arrested or imprisoned for making default in payment of a sum of money except in certain cases (see R. v. Pratt[15]). A person adjudged by a Court of Record to pay a fine is, I suppose, a Crown debtor (R. v. Woolf[16]), though as long ago as 1767 Lord Mansfield said that a fine imposed for perjury was not a debt but a punishment (R. v. Norris[17]). But it was held soon after the passing of the Debtors Act of 1869 that Crown debtors were not entitled to the benefit of its provisions (Attorney-General v. Edmunds[18]; In re Smith[19]). However, in the South Australian Act one of the excepted cases is default of payment of a fine or penalty or sum in the nature of a fine or penalty other than a fine or penalty in respect of any contract. The Debtors Act 1869 does not contain the word "fine." Both the words "fine" and "penalty" signify some pecuniary punishment for some infraction of the law and I suppose the word "fine" was added to the South Australian Act to make it clear that punishment for crimes and offences was not within the benefit of the Act. Lord Hatherley L.C. in Middleton v. Chichester[20] said:—"The exceptions are all of a character which indicates that the Legislature wished merely to limit the term of imprisonment in regard to certain debts which were not simple debts, contracted in the ordinary intercourse between man and man, where credit is given by one person to another, but were debts the incurring of which was in some degree worthy of being visited with punishment. Now, the first exception is the case of a penalty, and that makes the distinction I have pointed out extremely clear, because, if it is merely a penalty in respect of a contract, that is not to deprive the person who has incurred it of the benefit of the section; but if it is any other sort of penalty, by which is meant a penalty for non-observance of a positive law, then he is to be exempted from the benefit of the section." It is clear, therefore, that the appellant is within the class of cases excepted from the operation of the provisions of sec. 2 of the South Australian Act in relief of imprisonment for debt. A proviso to sec. 2, however, enacts: "Provided that no person shall be imprisoned, in any case excepted from the operation of this section, for a longer period than six months." Now the appellant's case is so excepted and he cannot, therefore, be detained or imprisoned for a longer period than that mentioned. The gaoler must then release him by force of the law. The proviso operates automatically but in no wise affects the validity of the sentence imposed upon the appellant, nor does it require any correction by this Court.

Appeal allowed. Sentence amended by adding after the word "paid" the words "but not for any period exceeding six months." Respondent to pay costs of appeal.

Solicitor for the respondent, W. H. Sharwood , Crown Solicitor for the Commonwealth.

[1] (1577) 8 Rep., at p. 59b; [1572] EngR 36; 77 E.R. 559, at p. 564.

[2] (1819) 2 B. & Ald. 609.

[3] [1855] EngR 736; (1855) 5 E. & B. 489.

[4] (1819) 2 B. & Ald. 609.

[5] (1577) 8 Rep., at p. 59b.

[6] (1755) Sayer 176.

[7] [1792] EngR 714; (1697) 1 Ld. Raym. 213.

[8] (1913) 3 K.B. 164.

[9] (1881) 6 Fed. Rep. 63.

[10] (1878) 3 Q.B.D. 545.

[11] (1881) 8 Q.B.D. 511.

[12] (1577) 8 Rep., at p. 59b.

[13] (1819) 2 B. & Ald. 609.

[14] (1697) 1 Salk. 400.

[15] (1870) L.R. 5 Q.B. 176.

[16] (1819) 2 B. & Ald., at p. 612.

[17] (1767) 4 Burr. 2142.

[18] (1870) 22 L.T. (N.S.) 667.

[19] (1876) 2 Ex. D. 47.

[20] (1871) L.R. 6 Ch. 152, at p. 156.

High Court of Australia

McKinnon v R [1927] HCA 55; (1927) 40 CLR 217 (10 December 1927)

HIGH COURT OF AUSTRALIA