Corbett v R [1932] HCA 36; (1932) 47 CLR 317 (15 August 1932)

These are applications by the defendants and by the Crown for special leave to appeal from a decision of the Supreme Court of New South Wales (sitting as a Court of Criminal Appeal) by which a new trial was ordered upon an indictment charging the defendants under sec. 58 of the Crimes Act 1900 with resisting constables in the execution of their duty.

The defendants, who were convicted before a Court of Quarter Sessions, appealed to the Supreme Court upon grounds which included the contention that on the occasion when resistance was offered to the constables they were not acting in the execution of their duty and that, therefore, the defendants were entitled to a verdict of acquittal. The Supreme Court decided against this contention, but upheld two further grounds taken in support of the appeal and quashed the conviction and ordered a new trial. The grounds upheld were (1) that the jury had not been chosen according to law, because, the panel having been exhausted and a tales awarded, the Chairman ruled that the prisoners were not entitled to challenge the talesmen peremptorily, a ruling which the Supreme Court considered erroneous; (2) that the failure of the prisoners to give evidence on oath had been made the subject of comment by the Chairman of Quarter Sessions.

The defendants seek to appeal from the new trial order upon the ground that the constables were not acting in the execution of their duty, and the Crown upon the ground that no peremptory challenge to the polls is given by law when a tales is awarded, and that, so far as any comment was made, it was not contrary to law.

The constables whom the defendants resisted were attempting in the execution of a warrant of possession to evict a tenant from a dwelling. There could be no doubt that the constables were acting according to the exigency of the warrant, but the contention is made that the warrant conferred no authority upon them because it was not issued or granted in accordance with the provisions of the Landlord and Tenant Act 1899 and was a nullity. The Supreme Court did not decide whether any of the objections made to the warrant were well founded. The Court assumed that the warrant did not comply with the requirements of the statute, but held that the warrant did not appear upon its face to be invalid, and that a constable, who, in good faith, executed such a warrant, acted in the execution of his duty. This proposition is somewhat too widely stated. The cases decided upon enactments making penal the obstruction or resistance to an officer in the course of the execution of his duty show that, when the alleged duty arises from a warrant, the charge cannot be sustained unless the warrant did operate in law as an authority to the officer, and, unless when he was resisted, he was in the course of executing that authority according to law (R. v. Sanders[1]; Codd v. Cabe[2]; R. v. Cumpton[3]; R. v. Levesque[4]). It is not enough that the officer was acting bona fide in obedience to a warrant, which, although bad, appeared to be good. It is true that generally, in such a case, he would not be liable as for an actionable wrong. But he is not protected from liability because it is his duty to execute a bad warrant. The protection is conferred upon him because "the public interest requires that officers who really act in obedience to the warrant of a magistrate should be protected" (Price v. Messenger[5], 24 Geo. II. c. 44; cf. Landlord and Tenant Act 1899, sec. 28, and Jones v. Chapman[6]).

In considering, however, whether an officer acting under a warrant is in the course of the execution of his duty, it must be remembered that it is not every defect or irregularity in the warrant and not every non-compliance with statutory provisions that destroys the efficacy of the process. Unless the warrant is a nullity, it will operate to confer upon the officer an authority resistance to which would constitute the offence.

The grounds upon which the warrant in the present case is said always to have been a nullity are three in number.

The first ground is that the warrant was not directed to the proper officers. Sec. 23 (2) (c) of the Landlord and Tenant Act 1899 empowers the magistrates to issue a warrant of possession directed to the constables and peace officers of, or acting in or for, the district or place within which the land is situate, or to any of them, or to any other person as bailiff in that behalf. In Jones v. Chapman[7] it was held that a warrant of possession would not confer authority upon any person outside this description. The warrant now in question was directed to constables and peace officers under a description which did not coincide with the description provided by the statute. Constables, however, might answer both the descriptions contained in the warrant and that required by the enactment, and the constables who acted in execution of the warrant appear at least to have included officers who answered the statutory description. (See too Police Regulation Act 1899 N.S.W., sec. 13 (3).) The first objection to the warrant, therefore, fails.

The second objection is that neither the warrant nor the adjudication, which it recites, complies with the requirement contained in sec. 23 (2) (c) with respect to the time or period to be stated in the warrant for its execution. The provision enables magistrates to issue a warrant, directed to the officers described, "requiring and authorizing them or him, within a period to be therein named, not less than seven nor more than thirty clear days from the date of such warrant, to enter" and give possession of the land. The adjudication ordered that a warrant should issue for putting the landlord in possession within the period beginning on 11th June 1931 and ending on 30th June 1931. The warrant was issued on 11th June 1931 and named a period beginning on that day and ending on 30th June 1931. The interpretation of the statute adopted in naming such a time requires that the warrant shall give a period during which the officers must execute it and the period shall begin with the date of the warrant and extend to a time not less than seven days nor more than thirty clear days from that date. It is objected that this construction is incorrect and that the provision means that a period must be given by the warrant commencing not less than seven clear days from the date of the warrant and ending not more than thirty clear days from that date. The grammatical meaning of the language in which the provision is expressed is opposed to this interpretation, but it is adopted by the form of adjudication given in Schedule E of the Act. On the other hand, the form of warrant given in the same Schedule adopts the first interpretation, that upon which the warrant was based in the present case. The language upon which the question arises is taken from 1 & 2 Vict. c. 74, sec. 1, and it seems everywhere to have occasioned much confusion and uncertainty as to its meaning. In New South Wales the first construction was accepted in Ex parte Cahill[8] and the second in Ex parte Mobbs[9]. The question is examined in his work on Landlord and Tenant, 6th ed., at p. 900, by Mr. Foa, who, after referring to what English authority there is, submits that the true meaning is that upon which the warrant in this case proceeds. This view is in accordance with the ordinary meaning of the words of the enactment and should be adopted. The proviso which was added to sec. 23 (2) (c) by sec. 3 (a) (i.) of Act No. 49 of 1930 is consistent with this interpretation. (See too, per Cussen A.C.J. in McLaren v. Gannaway[10].) The second objection to the validity of the warrant, therefore, fails.

The third objection is that the justice, who issued the warrant, had no authority to do so. Sec. 23 of the Landlord and Tenant Act 1899 provides that the justices before whom the matter is heard, or a majority of them, unless reasonable cause is shown may (a) adjudge the landlord entitled to possession of the land, and (b) award costs to him, and (c) issue a warrant of possession. Sec. 24 enables the justices by whom such adjudication is made to postpone the issuing of such warrant or to suspend its execution for a limited time. Stipendiary magistrates may do alone any act, and exercise alone any jurisdiction which might be done or exercised by two justices (sec. 10 of the Justices Act 1902 N.S.W.). The adjudication in the matter in question was made by a stipendiary magistrate. But although he ordered that a warrant should issue, he did not himself issue it under his hand. The warrant was issued under the hand of a single justice. If the provisions of sec. 23 (2) (c) of the Landlord and Tenant Act 1899 as affected by sec. 10 of the Justices Act 1902 alone governed the matter, there could be no doubt that a warrant of possession must be issued by the magistrate who made the adjudication. But sec. 98 of the Justices Act 1902-1918 makes the following provision:—"(1) One justice out of sessions may receive an information or complaint and grant a summons or warrant thereon, and may issue his summons or warrant to compel the attendance of any witness, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that by this Act or by the statute dealing with the matter, the information or complaint must be heard and determined by two or more justices. (2) One justice may after any such case has been heard and determined issue a warrant of commitment thereon or any other process to enforce an adjudication. (3) The justice who so acts as in the two preceding sub-sections mentioned need not be one of the justices by and before whom the case is heard and determined." Since the words "or any other process to enforce an adjudication" were introduced into sub-sec. 2 by Act No. 24 of 1909, it appears to have been the practice in New South Wales for one justice to issue warrants of possession. The question is whether that practice is justified. So far as the law respecting summary proceedings before justices out of sessions is applicable, it governs proceedings for recovery of possession (sec. 31 of the Landlord and Tenant Act 1899). But sec. 98 cannot be incorporated by this provision. If it applies, it must do so of its own force as a later inconsistent enactment intending to include in its operation proceedings for the recovery of possession. The operation of sub-sec. 1 is clearly wide enough to include such proceedings. The words "notwithstanding that by this Act or by the statute dealing with the matter the information or complaint must be heard and determined by two or more justices" and the provision contained in sub-sec. 3 point unmistakably to such enactments as sec. 23 (2). In sub-sec. 2 the words "any such case" require an antecedent in sub-sec. 1, and a scrutiny of sub-sec. 1 shows that the antecedent is contained in the expression "notwithstanding that by this Act or by the statute dealing with the matter" &c. This reference together with sub-sec. 3 makes it clear that sub-sec. 2 applies to proceedings after adjudication taken under statutes which in terms require that two justices shall adjudicate and that the same justices shall act in the subsequent proceedings. A warrant for possession answers the description "process to enforce an adjudication." It is said, however that by sec. 23 (2) of the Landlord and Tenant Act 1899 the power to issue a warrant, as well as the power to adjudicate the landlord entitled to possession, is made conditional upon proof of the creation and determination of the tenancy and of the facts mentioned therein, and that a discretion is confided to the justices by the sub-section to withhold the warrant even after adjudication if reasonable cause is shown or appears. These considerations found a suggestion that sec. 98 (2) of the Justices Act 1902-1918 does not contain enough to transfer to a single justice, who by sec. 13 may not adjudicate in respect of any matter or make any order, the function of considering the preliminary proofs and of exercising such a discretion. But the form in which sec. 23 is expressed arises not from an intention that proof of the facts which it mentions should be given after an adjudication of possession, nor that a separate discretion should be exercised in respect of the warrant, but from the fact that the complete function of adjudicating upon the information and of granting a warrant in pursuance of the adjudication was confided to the same magistrates. If those magistrates had, under sec. 24, postponed the issue of a warrant, they could not, if afterwards the landlord applied for a warrant, have gone behind their adjudication, and required proof once again of the facts upon which the adjudication had been founded. It seems doubtful, too, whether at that stage they could have refused or deferred the grant of a warrant, except pursuant to secs. 24 and 26. But even if, after adjudication of possession, a warrant may be withheld upon discretionary grounds under the heading of "reasonable cause," the function of issuing a warrant would not involve adjudication and the warrant would none the less be a process to enforce an adjudication. For these reasons sec. 98 (2) of the Justices Act applies to warrants of possession, and, accordingly, the third objection to the warrant fails.

But although the warrant was good when granted by the magistrate and the constables to whom it was given were bound to execute it, the defendants assert that it was afterwards countermanded by the landlord and that thereupon it ceased to operate as an authority to the officers. At common law a sheriff to whom a writ of execution is directed is bound to desist from executing it if the judgment creditor expressly forbids him from executing it, and he becomes a trespasser if he proceeds (Barker v. St. Quintin[11]). A reason is given in an observation of Parke B.[12]:—"The sheriff is not bound to execute a writ which is not delivered to him to be executed in due form at law. And after a countermand by the plaintiff before the execution of the writ, it is no longer in the hands of the sheriff to be executed in due form of law." See Hunt v. Hooper[13]. In the course of his opinion in Hooper v. Lane[14] Erle J. said:—"A party leaving a writ with the sheriff is, strictly, a principal dealing with an agent. The sheriff must execute according to his instructions, and in this, as in all cases, his duty is placed between opposite perils." Lord Cranworth modified the generality of this proposition saying[15]:—"The sheriff, though for some purposes an agent of the party who puts the writ into his hands, is not a mere agent. He is a public functionary, having indeed duties to perform towards those who set him in motion analogous, in many respects, to those of an agent towards his principal; but he has also duties towards others, and particularly towards those against whom the writs in his hands are directed."

How far do these doctrines apply to constables and others to whom is directed a magistrate's warrant granted in aid of a civil right? Between a warrant and a writ there is little resemblance either in origin or in nature. A warrant is a precept under the hand and seal or hand of a person vested with authority empowering another or others to do an act or perform a function. The warrant of a magistrate was considered so much a delegation of his authority that, before the rule was abrogated by statute, the warrant lapsed if he died or ceased to be a justice before it was executed (Normand v. Mills[16]). Thus, in Dickenson v. Brown[17], Lord Kenyon said that a warrant of a magistrate not made returnable at a particular time continued in force until it was fully executed provided the magistrate so long lived. A sheriff may, and usually does, by his warrant empower a bailiff to issue a writ of execution directed to the sheriff. But a constable to whom a warrant is directed may not employ a deputy or agent who is not himself within the direction of the warrant (Symonds v. Kurtz[18]). Field J. applied the maxim delegatus non potest delegare treating the constable as the magistrate's delegate[19] According to a well known text-book, "a justice may ... at any time withdraw his own warrant, which is a mere command to a constable obtained upon ex parte application, and may be countermanded at any time," a matter, however, upon which there seems to be little or no authority (see Stone's Justices' Manuat (1932), 64th ed., p. 168; R. v. Crossman and Leyland; Ex parte Chetwynd[20], and Barons v. Luscombe[21]). At common law a constable who refused to obey a valid warrant properly directed to him committed a misdemeanour. (Compare Police Regulation Act 1899 N.S.W., sec. 14.)The powers and authority of magistrates formerly related to matters which were of a criminal or at least of a public nature, and it is only by modern statutes that jurisdiction has been bestowed upon them over civil remedies for the enforcement of private rights. The very purpose for which warrants were granted would make it unreasonable to allow the person obtaining one to nullify it by his instructions. In a criminal matter, and in most other matters of a public nature, he really had done no more than put the magistrate in motion to enforce the law. But when warrants are diverted to a purpose analogous to writs of execution for the enforcement of civil judgments, the question arises how far the warrant should be considered to require the officer to whom it is directed to act as the agent of the party obtaining it. Can he countermand the warrant or withdraw it, so that the officer's authority ceases? Many grounds of convenience may be urged in favour of the view that execution of a warrant of possession should be as much subject to the control of the complainant as the execution of a writ of habere facias possessionem is under the direction of a plaintiff. But in considering them, it must be remembered that the question is not whether a constable lawfully may comply with the request of the complainant to return the warrant, or to refrain from executing it, but whether upon such a request the warrant ceases to operate as an authority from the justice so that the constable becomes a trespasser if he acts under it. No doubt the constable charged with the execution of a warrant of possession would act with propriety if at the landlord's instance he allowed the warrant to remain unexecuted; for the landlord is the only person who could complain that the exigency of the warrant was not complied with. But it does not follow that the constable is bound at his peril to disobey the warrant and to obey the landlord, a person whom he may not be able to identify and whose verbal instructions he may feel unable to verify or rely upon. Questions of convenience, however, cannot have much weight in determining whether the constable in relation to the commands of the complainant occupies the same situation as the sheriff with respect to those of a plaintiff who has sued out a writ of possession. The question is rather one of analogy, and on the whole we think the analogy fails at the point upon which the rule depends, that the plaintiff's countermand operates to withdraw the writ. We do not think a constable to whom a justice directs his warrant should be considered as receiving delivery of the process of the complainant. Every warrant of a justice, whatever its purpose, is an authority from the justice to an officer. The relation between the magistracy and the office of constable is such, both traditionally and in present practice, that the justice should be conceived as himself communicating his commands, or causing them to be communicated, to the constable. His warrant ought not to be considered as a process issued like a writ of execution depending for its operation upon its subsequent delivery by the party obtaining it, a delivery which he may make or withhold or countermand at his pleasure. It does not empower the party to use the constable as his agent. The constable is the delegate of the justice and the warrant is the instrument of delegation. But the very reason given for the rule that the authority of the sheriff ceases when a writ of execution is countermanded by the party is that the writ is thus withdrawn and is as if it were never delivered. For these reasons, in spite of the alleged attempt of the landlord to countermand it, the warrant continued in force and remained an authority to the constables. Accordingly they were acting in the execution of their duty and the defendants were not entitled to a verdict of acquittal. It therefore becomes necessary to consider the Crown's application for special leave to appeal from the order setting aside the convictions and ordering a new trial.

The Supreme Court held that the jury had not been lawfully chosen because certain of the prisoners were not permitted to challenge the talesmen. Sec. 57 (2) of the Jury Act 1912 N.S.W. provides that if the whole number of the pieces of card placed in the box "is exhausted, by challenge or otherwise, before twelve men are duly sworn, either the Crown or the prisoner may pray a tales, whereupon the Court or Judge or Chairman, as the case may be, may command the sheriff or his deputy forthwith to appoint as many good and lawful men of the bystanders (being qualified and liable to serve as jurors for the district) as may be sufficient to make up twelve men for the trial of the said issue." The question is whether persons appointed as talesmen under this provision are liable to peremptory challenge.

At common law, if the number of jurors proved insufficient for the purposes of a trial before the Court itself, writs of decem tales, octo tales, &c., might be awarded until sufficient jurors were obtained; but the practice of awarding a tales de circumstantibus had a statutory origin. By 35 Hen. VIII. c. 6, secs. 6, 7 and 8, it was provided that where a full jury shall not appear before the justices of assize or nisi prius or else after appearance of a full jury by challenge of any of the parties the jury is likely to remain untaken for default of jurors, then the same justices upon request made by the plaintiff or defendant shall have authority to command the sheriff or other minister to whom the making of the return shall appertain to name and appoint, as often as need shall require, so many of such other able persons of the County then present at the said assizes or nisi prius as shall make up a full jury, which persons shall be added to the former panel and their names annexed to the same, and that the parties shall have their challenges to the juries so named and annexed to the former panel, as if they had been empanelled upon the venire facias. The operation of this provision was extended by 4 & 5 Phil. & Mar. c. 7, to proceedings to which the Crown was a party including criminal inquests (see Hawkins' Pleas of the Crown, book 2, ch. 41, sec. 18, and cf. Sir John Sabin's Case[22]). Thus under statute there was the same challenge as in the case of the original panel as well to the polls as to the array of talesmen (see Bacon's Abridgment Juries (c), pp. 546-548; Blackstone's Commentaries, book III., p. 364) as also was the case with talesmen at common law (see per Parke B. in Gray v. The Queen[23]).

The manner in which the law relating to juries was introduced into New South Wales is explained in R. v. Valentine[24]. An express provision giving challenges to talesmen was included in sec. 37 of 6 Geo. IV. c. 50, which regulated the procedure in relation to juries. The Crown contends that the omission of such a provision from the New South Wales statute when considered with the form of the expression in sub-sec. 2 of sec. 57 of the Jury Act 1912 N.S.W. "sufficient to make up twelve men for the trial of the said issue," should lead to the conclusion that it was not intended that the talesmen should be liable to challenge, or at any rate to peremptory challenge. These considerations appear quite inadequate to support the inference. Although, strictly speaking, the right to challenge talesmen in the case of a tales de circumstantibus is not a common law right, yet the observations of Tindal C.J. in Gray v. The Queen[25] quoted with approval by the Privy Council in Levinger v. The Queen[26] are applicable: "If the question, whether his right to peremptory challenge has or has not been taken away, remains open to any doubt, it appears to me, that in accordance with the general principle of decision applied to criminal cases, tutius erratur in mitiori sensu, the decision of such question is to be given in favour of the prisoner, who is not to be deprived, by implication, of a right of so much importance to him, given by the common law, and enjoyed for many centuries, unless such implication is absolutely necessary for the interpretation of the statute."

For these reasons sec. 57 (2) ought not to be construed as excluding a right of challenge to the polls in the case of talesmen. Accordingly a new trial was rightly ordered.

Both applications for special leave to appeal from the order of the Supreme Court should be refused.

Corbett and others were jointly charged on indictment with resisting police officers in the execution of their duty and with wilfully obstructing police officers in the execution of their duty (Crimes Act 1900 N.S.W., sec. 58). Proceedings had been taken by a landlord, through her agent, against a tenant to recover possession of certain land under the Landlord and Tenant Act 1899, and, after adjudication on 21st May 1931 that the landlord was entitled to possession, a warrant of possession was issued, directed to the senior officer of police at Campsie, and to all other constables in the Police Force of New South Wales, commanding them, within the period beginning on 11th and ending on 30th June, to enter upon the land and to eject all persons on it and to give possession of the same to the landlord. It appeared that the police officers proceeded to execute this warrant, but "the tenant ... made up his mind to resist the eviction, and ... gathered together a number of men who barricaded the place with barbed wire entanglements to prevent entrance, and laid in a supply of stones," &c., "as weapons of offence"[27], and it was only after a severe struggle and various casualties that the police succeeded in executing the warrant. Corbett and others jointly indicted with him were convicted for thus resisting and wilfully obstructing the police officers in the execution of their duty. The Court of Criminal Appeal set aside this conviction, and ordered a new trial, mainly on the ground that the persons charged were not allowed to exercise their right of peremptory challenge in respect of certain talesmen appointed pursuant to the provisions of the Jury Act 1912 N.S.W., sec. 57.

The Attorney-General for New South Wales desires special leave to appeal against the decision setting aside the conviction. But the decision was right, and for the reasons given by the Court of Criminal Appeal.

The accused persons desired special leave to appeal against the order for a new trial, and contended that a judgment and verdict of acquittal should be entered (Criminal Appeal Act 1912 N.S.W., sec. 6 (2)). This application might well be refused, as a matter of discretion, in the circumstances of this case. But we have heard a learned argument attacking the validity of the warrant of possession, and perhaps our reasons for rejecting this attack may be of assistance in the administration of justice. The grounds of attack were (1) that the warrant was issued by the wrong person; (2) that the warrant was directed to the wrong people; (3) that the warrant was not executed within the time thereby prescribed, or in accordance with the provisions of the Landlord and Tenant Act, sec. 23; (4) that the warrant was withdrawn by the landlord, or her agent, before execution.

The object of this attack upon the warrant is to establish that the police officers were not acting in the execution or performance of any duty imposed upon them by law. No duty was imposed by law upon the police officers to execute this warrant, other than that arising from the authority and command contained in the warrant itself, which, it should be observed, is not that of a superior Court of common law. A suitor is liable for the execution of process of an inferior Court in a matter beyond its jurisdiction, but, like the sheriff of a superior Court, a police officer is called upon to show his warrant only. But he cannot justify under his warrant if on its face it is such as no law authorizes, and is therefore a nullity and of no more effect than a piece of waste paper (Moravia v. Sloper[28]; Andrews v. Marris[29]; Carratt v. Morley[30]; Mayor &c. of London v. Cox[31]). Nor could he justify if he acted in excess of the authority of the warrant (Ash v. Dawnay[32]). Mere irregularities in procedure would not affect the justification, for it is no part of the duty of an officer to examine into the regularity of the proceedings upon which the warrant issues. It is his duty to execute the warrant according to its exigency (cf. Countess of Rutland's Case[33]). The act of an officer under a warrant unauthorized by law or an act in excess of the authority conferred by a warrant so authorized is illegal. Such acts are not in the execution or performance of the officer's duty, but in contravention of the law, and even actionable unless some statutory provision protects him for acts committed under the bona fide belief that he was acting in the execution of his authority (Chaster on Public Officers, p. 627). But the allegation that must be established on the present indictment is that the police officers were acting in the execution of some duty imposed by law; and proof that they bona fide believed that they were so acting, whilst possibly protecting them against civil action for a wrongful act, is irrelevant to the charge laid and would not establish it. On this basis, the specific objections to the warrant can now be considered.

(1)

The warrant was issued by the wrong person.—This ground of objection means that under the Landlord and Tenant Act the adjudicating magistrates should have issued the warrant under their hands, and that the issue by another magistrate pursuant to the adjudication was without jurisdiction. I understand that the warrant was issued in accordance with the usual practice in New South Wales, and it is justified by the Justices Act 1902-1909, sec. 98 (2).

(2)

The warrant was directed to the wrong people: it was not directed to the constables and peace officers of or acting in or for the district or place within which the land in question is situate or to any of them.—In my opinion this objection is untenable. The jurisdiction of the police officers of the State of New South Wales is not confined to any district or place (as is the case in England and elsewhere) but covers the whole territory of New South Wales, and they act in aid and assistance of each other. The administrative grouping of the police in New South Wales has nothing to do with their jurisdiction or authority: it extends, as I have said, over the whole area of the State. A police force so organized acts in and for the whole of the State, and a warrant addressed to the senior officer of police at Campsie, and to all other constables in the Police Force of New South Wales, or any of them, is a warrant addressed to constables and peace officers of or acting in or for the district or place within which the land is situate or some of them. Such a description would not, in any case, avoid the warrant even if it were irregular in form.

(3)

The warrant was not executed within the time thereby prescribed or in accordance with the provisions of the Landlord and Tenant Act, sec. 23.—The warrant is dated the 11th June, and was executed on the 17th June. The statute prescribes that the justices may issue a warrant to police officers authorizing them within a period to be therein named, not less than seven nor more than thirty clear days from the date of the warrant, to enter on to such land and give possession to the landlord. According to the argument, the warrant could not have been executed lawfully until seven clear days had elapsed from the date of the warrant, because the statute and the warrant so direct. Redman (Landlord and Tenant, 7th ed., p. 806) says of the corresponding English provision that "the words have given rise to a difference of view of serious practical importance ... as to the time at which the warrant may be legally executed" (see Ex parte Cahill[34]; Ex parte Mobbs[35]; Jones v. Foley[36]; R. v. Hopkins[37]). Redman (Landlord and Tenant, 7th ed., proceeds at pp. 806 et seq.):—"According to one view it cannot be executed until after the expiration of the twenty-first day" (seventh in New South Wales), "and must be executed on some day named in the warrant between the twenty-first" (seventh) "and thirty-first days. According to the other view, while the section obliges the magistrate to name a period which must not fall short of twenty-one" (seven) "days and may extend to thirty days, it authorizes the officer charged with the warrant to execute it on any day falling within that period which may appear reasonable and just under varying circumstances. The section so construed places the actual date of execution in the discretion of the warrant officer... Apart from authorities ... the second is the more correct view. The first reads the statute as if it said on the expiration of twenty-one [seven] days denoting a space of time on the lapse of which, or rather a named day after such lapse on which, the execution is to take place. The second view follows the actual words of the statute, within a period of ... twenty-one [seven] days which in their ordinary signification, denote a continuous space of time, and leave any point between the termini of that time to be selected for execution as circumstances may render just and convenient." Foa, Landlord and Tenant, 5th ed. p. 789, 6th ed. p. 900, is to the same effect. The directions in the form of adjudication in Schedule E to the Act are not in accordance with this view, but the form of adjudication and the warrant itself, omitting the erroneous direction, follow the words of the statute. To me the reasoning above set forth is convincing, and I cannot do better than adopt it.

(4)

The warrant was withdrawn by the landlord or her agent before execution. It is well settled that a party may withdraw or countermand a process issued to enforce a judgment made in a civil action or proceeding against one of the parties. Thus a writ of ca. sa. or fi. fa. may be countermanded and the officer to whom it is addressed will not be justified in executing it after such countermand (Barker v. St. Quintin[38]; Hunt v. Hooper[39]; and cf. Crozer v. Pilling[40]). The object of such writs is to satisfy a debt due to the party suing out the same. A distinction must, however, be observed between judgments or orders made in civil actions or proceedings for the enforcement of civil rights, and judgments and orders made for the purpose of securing the course of justice (O'Shea v. O'Shea and Parnell[41]; Attorney-General v. Kissane[42]). But the warrant of possession clearly belongs to the former class of judgment or order. Its object is to enforce a civil right, the right to possession of land. A party has as much control over its issue and execution as he has in the case of writs of ca. sa. and fi. fa. (cf. Cole on Ejectment, pp. 342 et seqq.). If a party does not desire possession there is no reason of a public or overriding nature that demands that he should have it. Clearly, I should suppose, that would be so in the case of a writ of possession directed to a sheriff and issued out of the Supreme Court of a State in a civil action for the recovery of land. And I can see no distinction in principle between these cases and the case of a warrant issued under the provisions of the Landlord and Tenant Act. In my opinion, therefore, the authority of the police officers to execute the warrant had ceased if it had been in fact countermanded or withdrawn. There was some evidence fit to be submitted to a jury, of the withdrawal of the warrant. But another view was also open on the evidence, namely, that the agent, being afraid of injury to the property, suggested to a senior police officer the advisability of procuring a withdrawal of the warrant from the justices; but this course was not followed and the warrant remained effective.

The result is that the order for a new trial was right, and the applications for special leave should be refused.

These are two applications for special leave to appeal from the judgment of the Supreme Court of New South Wales which, sitting as the Court of Criminal Appeal, set aside the convictions of the applicants on charges of resisting and wilfully obstructing certain officers of police "then being constables in the execution of their duty," and ordered a new trial. The Crown asks for the restoration of the convictions of the accused, and the accused, that judgment of acquittal should be entered.

The Supreme Court did not determine the question of the validity of the warrant dated June 11, 1931, in executing which it is said that the officers of police were resisted and wilfully obstructed by the accused.

All the cases relied upon for the adoption of this principle by the Supreme Court were concerned with the question of defences to civil actions. And the Supreme Court said that the position of an officer of police was "analogous to that of a magistrate entitled by statute to notice of an action intended to be brought against him for something done by him in the execution of his office. The authorities show that in such cases the magistrate purporting to act in the execution of his office, though illegally, is entitled to notice of any action intended to be brought against him"[44].

Now statutes which afford a special privilege to a magistrate or officer of police by way of grant of a defensive right, usually seek to protect the officer in respect of acts done "in the execution of his duty." And it has frequently been pointed out that, if the officers are acting lawfully in carrying out the relevant duty, no civil action against them could possibly succeed; and that, therefore, such statutes must intend to do more than protect the lawful acts of the officers. Hence there was forced upon the Courts a construction of the statutes giving officers some additional protection, i.e., a protection covering acts which were not lawful. So it has been repeatedly held that officers, acting bona fide and intending to execute their duty, may obtain the benefit of this class of enactment, although their actions are contrary to law.

But when the domain of criminal jurisprudence is reached, and when, as in sec. 58 of the New South Wales Crimes Act, special penalties are imposed upon persons guilty of resisting, obstructing, or assaulting a peace officer acting "in the execution of his duty," very different considerations arise. There is, in such case, no reason whatever for adopting the interpretation forced upon the Courts owing to the express terms of other Acts, granting police officers protection against civil liability although they have acted unlawfully. The obvious purpose of sec. 58 of the Crimes Act is that of inflicting a special punishment upon persons guilty of acts which are therein described. There is every reason for insisting upon strict proof that the acts answer to the statutory description. In the present case it lay upon the prosecution to prove that the officers of police were acting in the execution of their duty. It is no part of the duty of a constable to perform unlawful acts, even though some other statute shields him from the ordinary civil liability which would thereby attach to him.

Two cases dealing with this important part of the appeal may be referred to. In 1867, the Court for Crown Cases Reserved determined R. v. Sanders[45]. Sanders was convicted of wounding a police constable "in the execution of his duty," and with intent to resist his lawful apprehension. It was objected that, as the warrant was directed to the "constable of Gainsborough," it could not be lawfully executed by any other person. The Court sustained the point, and quashed the conviction upon the ground that the arresting constable (though acting, no doubt, in perfect good faith) had no lawful authority to execute the warrant.

In R. v. Cumpton[46] the Court for Crown Cases Reserved quashed a conviction of the appellant for assaulting two constables in the execution of their duty. The Court examined the warrant of apprehension which the police officers were executing at the time of the assault, and determined that it did not confer legal authority for the arrest of the prisoner, as it had not been properly backed. Again, no question was raised as to the bona fides of the arresting officers, and Field J. said[47]: "In this case it lies on the prosecution to make out that the constable has the power contended for, and in this I think they have failed."

The Supreme Court, therefore, acted erroneously in supposing that the offences charged did not require proof that the policemen were lawfully executing their duty when resisted or obstructed; the real question is whether it has been shown that the police officers were acting in the lawful discharge of duty, when on June 17th, 1931, they forcibly entered a house at Bankstown near Sydney in order to execute the warrant. That warrant is in evidence, and was issued under the terms of the Landlord and Tenant Act 1899.

It is said for the accused that the warrant is bad upon three separate grounds: (1) That it was signed by a chamber magistrate who had no authority to sign such a document; (2) that it was not addressed to the persons to whom alone it could lawfully be addressed under sec. 23 (2) (c) of the Landlord and Tenant Act; and (3) that the time which was fixed by the warrant for its execution was not that allowed and contemplated by sec. 23 (2) (c) of the Act.

(1)

The first point is this. The warrant of possession in relation to tenements recovery in Courts of Petty Sessions is dealt with by sec. 23 (2) (c). The provision empowers the adjudicating justices. "unless reasonable cause is shown or appears to them to the contrary," to "issue a warrant under their hands." But the warrant which was executed by the officers was signed, not by the magistrate who on May 21st, 1931, adjudged that the landlord was entitled to possession of the land, but on June 11th, 1931, by a chamber magistrate.

The only authority which can justify the issuing of the warrant by the chamber magistrate is sec. 98 (2) of the Justices Act 1902, as amended in 1909. It provides that "one justice may after any such case has been heard and determined issue a warrant of commitment thereon or any other process to enforce an adjudication." The words italicized were added in the Act of 1909, and I am of opinion that the warrant of possession may fairly be described as the process which enforces the adjudication under sec. 23 (2) (a) that the landlord is "entitled to possession of such land."

(2)

The second objection to the warrant cannot be sustained. The warrant is not framed with much care, but it should be taken as addressed to all constables ordinarily acting in the district or place of Bankstown, as well as to all other police officers in the State of New South Wales.

(3)

Sec. 23 (2) (c) of the Landlord and Tenant Act provides that the warrant shall name a period "not less than seven nor more than thirty clear days from the date of such warrant," within which possession shall be given to the landlord. Two meanings have been assigned to this provision. In Ex parte Mobbs[48] Mr. D. G. Ferguson (later Mr. Justice Ferguson) successfully argued that the Act intended that the tenant could not be turned out of possession until the expiration of seven days from the date of the issue of the warrant. "There should," he contends, "be two dates mentioned within which possession should not be given; the first date must not be less than seven days and the last date not more than thirty days." In acceding to this argument G. B. Simpson J.[49] (with whom Cohen J. concurred) said:—

It is perfectly clear that the law has not been complied with. The adjudication states "that a warrant shall issue for putting the said estate into possession of the said land within ten clear days from the date thereof." Under that order, if the warrant issued (for instance) on the 1st September, possession could be taken on the very next day, whereas the Act says that possession cannot be taken except after expiration of seven days, and within thirty days after the date of the warrant.

The opposing view is that the warrant must name not two dates but one number, being a number not less than seven and not more than thirty, so that the selection of such number also fixes a period. This period commences from the date of the warrant and ends at the expiry of the number of days mentioned in the warrant. If the first interpretation is right, the warrant is clearly bad because the date of its issue was June 11th, and it authorized possession to be given "within the period beginning on June 11th, 1931, and ending on June 30th, 1931." Under its terms, it could have been acted upon immediately, and no provision was made in it for the expiration of seven days before its execution.

The interpretation in Ex parte Mobbs[50] accords with that given to a similar phrase in the English Small Tenements Recovery Act 1838, by R. v. Hopkins[51] and Jones v. Foley[52]; and also with the forms set out in the Schedules to the Landlord and Tenant Act itself.

On the other hand, Foa, in a powerful criticism of R. v. Hopkins[53], says:—

The Legislature of New South Wales by Act No. 49 of 1930, sec. 3 (a) (i.), has given its approval to the second interpretation, by adding to sec. 23 (2) (c) the words "Provided that the period referred to may be in excess of thirty days if the justices are satisfied that thirty days is not an adequate period in the circumstances." This enactment assumes that the earlier form of the sub-section gave a period of thirty days for the execution of the warrant, whereas the judgment in Ex parte Mobbs[54] regarded the period as being limited to 23 at the most, that is, 30 minus 7.

In the circumstances I think that the opinion expressed by Foa should be adopted.

I am of opinion that in this respect the warrant was good. Although it did not directly express a number of days not less than seven, it did so indirectly by fixing a point of time (June 30th, 1931), which gave "at least seven clear days" in which execution might take place.

But it is also contended for the accused that although the warrant authorized the constables to "enter (by force if needful) into such land and to give possession of the same to such landlord or such agent on his behalf," the facts show that, before June 17th, the landlord instructed the constables not to proceed with its execution. It was on that date that the officers executed the warrant, and the alleged resistance and obstruction to them took place: and the question is whether, such a direction or instruction to the police having been given by or on behalf of the landlord, the constables were acting "in the execution of their duty" in ignoring the direction and forcibly entering into possession.

In the leading case of Barker v. St. Quintin[55] it was held that if the sheriff insist upon executing a writ, e.g., ca. sa., after a direction from the plaintiff not to do so, he becomes a trespasser. Lord Abinger C.B. said[56]:—

In Barker v. St. Quintin[57] the argument advanced by Mr. Martin for the defendant was much the same as that now urged by the Crown. He said:—

Is the principle of Barker v. St. Quintin[59] applicable to warrants of possession under sec. 23 (2) (c) of the New South Wales Landlord and Tenant Act? That Act in Part II. deals with "Tenements recovery by ejectment in the Supreme Court," in Part III. with "Tenements recovery in the District Courts," and in Part IV. with "Tenements recovery before justices of the peace." It is clear that the principle of Barker v. St. Quintin[60] applies to the enforcement of adjudications in the superior Courts of the State of New South Wales, including, e.g., the warrant requiring the bailiff of a District Court to give possession to a plaintiff. Why does it not apply to warrants of possession authorized by a Court of Petty Sessions? In my opinion a perusal of Part IV. of the Landlord and Tenant Act makes it reasonably clear that those executing a warrant of possession are doing so on behalf of the landlord, and that he may terminate their authority to act in the execution of the warrant.

In the first place the functions performed by constables to whom a warrant under sec. 23 (2) is issued, are merely those of a bailiff. The warrant may go not only to peace officers but also to "any other person as a special bailiff in that behalf." The form of the sheriff's warrant on habere facias commands his bailiff to deliver to the claimant possession and to certify forthwith (Cole on Ejectment, p. 791). And further, the Landlord and Tenant Act repeatedly states the relation deemed to exist between the landlord and the warrant of possession. Sec. 23 (2) (c) describes the contents of the warrant, but sec. 28 refers to "the landlord, by or for or on whose behalf" the warrant is obtained. So too, sec. 29 refers to the "landlord by whom or for or on whose behalf such warrant has been obtained." Sec. 30 provides that the warrant shall not protect the landlord "on whose behalf" the warrant has been obtained, from any action by the person in possession in respect of any entry under the warrant, where the landlord "at the time of executing the same has not, as against such person in possession, lawful right to the possession thereof." In such case (1) the landlord is as liable as though possession had been taken without the authority of the warrant (sec. 30 (2)), and (2) the constables or bailiffs executing the warrant are not liable (sec. 28).

In my opinion these provisions provide conclusive evidence that the constables or bailiffs are executing a warrant that is obtained for the sole benefit of the landlord, and that the warrant is executed at the peril, not of the constables or bailiffs, but of the landlord. They are treated for the occasion as the mere innocent instruments of the landlord, and it is upon him alone that liability is visited in case he has no lawful right of possession. It would be very difficult to find stronger evidence of the absolute necessity for continuous control of the whole process by the landlord.

The same thing is shown by the form of the warrant. The sole purpose of the forcible entry and ejection which are authorized, is to give possession to the landlord. An arrangement may be come to between landlord and occupier after the warrant has been issued. The landlord in such case should have authority to inform the constables or bailiff that he does not wish to be put into possession under the warrant, and that he directs it should not be executed. The idea that a constable or bailiff is entitled to ignore such direction, and claim that he is still acting "in the execution of his duty," seems to be not warranted by the statute. It rather suggests that there is some element of punishment involved in the issue of the warrant. But the warrant is mere process for the enforcement of a civil adjudication. The fact that those who act as bailiffs are police constables suggests criminal or penal process, but that is an accident, due to the association of the Police Force with the "Police Courts."

As there is ample evidence to show that the landlord, in the present case, did direct that the warrant should not be executed, the accused would be entitled to be acquitted upon the present charges, if such direction to the constables is proved.

With regard to the application for leave to appeal by the Crown, I agree with the judgment of Street C.J. that the right of peremptory challenge of talesmen was available to the accused. It is a matter for regret that the learned Chairman of Quarter Sessions, who presided at the trial, should have found it necessary to condemn the exercise of the right of challenge by the accused as "meaningless, idle and senseless." Under ordinary circumstances delay and difficulty can seldom arise because, at the most, only a few persons are jointly tried for misdemeanour. In the present case no less than seventeen accused were jointly indicted, and the total number of challenges was greatly increased. If accused persons are given a legal right, the exercise of it is a matter entirely for them, and is no fit matter for prejudicial and disparaging comment by the presiding Judge. This comment, coupled with the interrogation of the accused by the presiding Judge in reference to their making a statement from the dock, instead of giving evidence on oath, would amply justify the granting of a new trial. I am not satisfied that sec. 407 of the Crimes Act was disobeyed by the presiding Judge, because what he did was not so much to comment upon the fact that the accused had refrained from giving evidence on oath, as to state and restate the mere fact that all of them were so refraining. But the repetition of the fact as each accused was interrogated, was calculated, I assume it was not intended, to leave in the jury's mind the impression that it was a matter of great moment for their consideration that the statements of the accused were unsworn. The learned Judge kept up the interrogation, notwithstanding that he had already been informed by counsel that all the accused would make statements from the dock. One can readily imagine how this demonstration by the presiding Judge might have prejudicially affected the fair trial of the indictments, especially in view of the strong feeling with which such a case was probably imbued.

I am of opinion that the order of the Supreme Court for a new trial was right, but that the accused will be entitled to an acquittal if the jury are satisfied that, prior to the execution of the warrant, there was a countermand of its execution by or on behalf of the landlord.

Both applications should, in my opinion, be dismissed. Assuming that the evidence established that the agent instructed the sergeant, to whom the warrant was handed, not to proceed under it, I do not think that the accused should have been acquitted on that ground. The effect of such an instruction, if given, would not have been to countermand the order which the magistrate by his warrant addressed to the police, directing them to enter the premises and give possession thereof to the agent. Assuming the instruction to have been given, it would not follow that the police were not acting in the execution of their duty while carrying out the command which the warrant expressed. It is not material to inquire whether it would be mere officiousness on the part of the police to proceed to execute a warrant under the Landlord and Tenant Act in face of a certain and well authenticated instruction from the agent or owner of the premises not to do so. The evidence in this case does not clearly show that a definite instruction was given by the agent to the police not to act under the warrant or that they persisted in executing the warrant in defiance of the agent's instructions. The state of the evidence, upon which the submission that the warrant was countermanded, is founded, may be gathered from the following passage from the summing-up of the learned Chairman of Quarter Sessions:—

In addition, it may be observed that while there was evidence that Sergeant Wiblin was in immediate charge of Bankstown district and that he was the sergeant to whom the warrant was given, it was addressed to the principal police officer at Campsie. Inspector McMaster, who was called as a witness, said that the description "principal officer at Campsie" applied to him. There is no evidence that the owner or her agent communicated with that officer on the question of refraining from executing the warrant. Inspector McMaster also said that it was approximately about three-quarters of an hour after the police came to the cottage to execute the warrant that he "formally handed over to Mrs. McDonald" and that "the warrant was then executed." It appears that the agent, Mrs. McDonald, who is alleged to have countermanded the warrant which required and authorized the police to enter the premises and to give her possession of them, was present on the scene when the warrant was executed and thereupon accepted the possession of the premises from the police. Inspector McMaster said that when he formally handed over the premises to her, the warrant was executed.

Thus it is doubtful whether the point, upon which special leave is asked, does arise on the evidence. But as the order of the Supreme Court directing a new trial will stand, I have expressed my concurrence in the view that, even if the agent had asked the police not to execute the warrant, the result would not have been to take the conduct of the accused out of sec. 58 of the Crimes Act 1900 of New South Wales.

I agree with the conclusions of my learned brothers on the questions involving sec. 98 (2) of the Justices Act 1902-1918 and sec. 23 (2) (c) of the Landlord and Tenant Act 1899-1930; and I have nothing to add on these questions.

[1] (1867) L.R. 1 C.C.R. 75.

[2] (1876) 1 Ex. D. 352.

[3] (1880) 5 Q.B.D. 341.

[4] (1918) 42 Dom.L.R. 120; 45 N.B.R. 522.

[5] [1800] EngR 172; (1800) 2 Bos. & P. 158, at p. 161; [1800] EngR 172; 126 E.R. 1213, at p. 1215.

[6] (1845) 14 M. & W., at p. 130; 153 E.R., at p. 419.

[7] [1845] EngR 775; (1845) 14 M. & W. 124; 153 E.R. 416.

[8] (1891) 7 N.S.W.W.N. 138.

[9] (1900) 17 N.S.W.W.N. 156.

[10] (1932) V.L.R. 166, at p. 170.

[11] [1844] EngR 134; (1844) 12 M. & W. 441; 152 E.R. 1270.

[12] (1844) 12 M. & W., at p. 448; 152 E.R., at p. 1273.

[13] [1844] EngR 267; (1844) 12 M. & W. 664, at p. 672; [1844] EngR 267; 152 E.R. 1365, at p. 1369.

[14] [1857] EngR 830; (1857) 6 H.L.C. 443, at p. 522; [1857] EngR 830; 10 E.R. 1368, at p. 1399.

[15] (1857) 6 H.L.C., at pp. 549, 550; 10 E.R., at p. 1410.

[16] (1700) 12 Mod. 347; 88 E.R. 370.

[17] [1820] EngR 130; (1794) Peake 307; 1 Esp. 218; 170 E.R. 166.

[18] (1889) 61 L.T. 559; 5 T.L.R. 511.

[19] (1889) 61 L.T., at p. 560; 5 T.L.R., at p. 512.

[20] (1908) 24 T.L.R. 517.

[21] [1835] EngR 784; (1835) 3 A. & E. 589; 111 E.R. 537.

[22] [1685] EngR 243; (1674) 3 Keb. 490; 84 E.R. 838.

[23] [1844] EngR 877; (1844) 11 Cl. & Fin. 427, at p. 474; [1844] EngR 877; 8 E.R. 1164, at p. 1181.

[24] (1871) 10 S.C.R. (N.S.W.), at pp. 122-124, 133-136.

[25] (1844) 11 Cl. & Fin., at p. 480; 8 E.R., at p. 1183.

[26] (1870) L.R. 3 P.C., at p. 289.

[27] (1932) S.R. (N.S.W.), at p. 95.

[28] (1737) Willes 30; 125 E.R. 1039.

[29] [1841] EngR 172; (1841) 1 Q.B. 3; 113 E.R. 1030.

[30] [1841] EngR 691; (1841) 1 Q.B. 18; 113 E.R. 1036.

[31] (1867) L.R. 2 H.L. 239, at p. 263.

[32] [1852] EngR 1043; (1852) 8 Ex. 237; 155 E.R. 1334.

[33] (1605) 6 Rep. 52b, at p. 54a.

[34] (1891) 7 N.S.W.W.N. 138.

[35] (1900) 17 N.S.W.W.N. 156.

[36] (1891) 1 Q.B. 730.

[37] (1900) 64 J.P. 454.

[38] [1844] EngR 134; (1844) 12 M. & W. 441; 152 E.R. 1270.

[39] [1844] EngR 267; (1844) 12 M. & W. 664; 152 E.R. 1365.

[40] [1825] EngR 512; (1825) 4 B. & C. 26, per Holroyd J., at p. 32; [1825] EngR 512; 107 E.R. 969, at p. 971.

[41] (1890) 15 P.D. 59.

[42] (1893) 32 L.R. Ir. 220.

[43] (1932) 32 S.R. (N.S.W.), at pp. 95, 96.

[44] (1932) 32 S.R. (N.S.W.), at p. 96.

[45] (1867) L.R. 1 C.C.R. 75.

[46] (1880) 5 Q.B.D. 341.

[47] (1880) 5 Q.B.D., at p. 345.

[48] (1900) 17 N.S.W.W.N. 156.

[49] (1900) 17 N.S.W.W.N., at pp. 156, 157.

[50] (1900) 17 N.S.W.W.N. 156.

[51] (1900) 64 J.P. 454.

[52] (1891) 1 Q.B. 730.

[53] (1900) 64 J.P. 454.

[54] (1900) 17 N.S.W.W.N. 156.

[55] [1844] EngR 134; (1844) 12 M. & W. 441; 152 E.R. 1270; 13 L.J. Ex. 144.

[56] (1844) 13 L.J. Ex., at p. 149; 12 M. & W., at pp. 450, 451; 152 E.R., at p. 1274.

[57] (1844) 12 M. & W., at p. 448; 152 E.R., at p. 1273.

[58] (1844) 12 M. & W., at p. 448; 152 E.R., at p. 1273.

[59] [1844] EngR 134; (1844) 12 M. & W. 441; 152 E.R. 1270; 13 L.J. Ex. 144.

[60] [1844] EngR 134; (1844) 12 M. & W. 441; 152 E.R. 1270; 13 L.J. Ex. 144.

High Court of Australia

Corbett v R [1932] HCA 36; (1932) 47 CLR 317 (15 August 1932)

HIGH COURT OF AUSTRALIA