MacDonald v R [1935] HCA 18; (1935) 52 CLR 739 (11 April 1935)

HIGH COURT OF AUSTRALIA

MacDonald Applicant; and The King Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 April 1935

Rich, Starke. Dixon, Evatt and McTiernan JJ.

Piddington K.C. (with him Farrer), for the applicant.

McGhie, for the respondent,

Piddington K.C., in reply.

The following judgments were delivered:—

Rich J.

Three objections have been raised by Mr. Piddington to the conviction in this case. He contended in the first place that as there was no warrant or summons issued the magistrate had no jurisdiction to convict the accused. This objection was not taken at the hearing, and is clearly met by sec. 133 (1) of the Justices Act which reads as follows:—"Where the party convicted, or any party whose goods have been condemned or directed to be sold as forfeited, was present at the hearing of the case, the conviction or order shall be sustained, although there may have been no information or summons, unless such party objected at such hearing that there was no information or summons." Mr. Piddington next contended that the evidence did not support the charge of habitually consorting with reputed criminals. The offence connotes frequenting the company of reputed criminals and is a question of degree. It is inadvisable and, perhaps, impossible, to attempt an exhaustive definition of the offence, and, having regard to the order which the Court proposes to make. I shall not deal further with this question. The next objection was as to the inadmissibility of evidence as to the character of the accused. This evidence was objected to at the hearing. It is clearly inadmissible having regard to the manner in which and the time at which it was led. On this ground, therefore, the conviction should be set aside. The dictum in the case of R. v. Gibson[1], that it is open to the Crown to give evidence of the character of the accused, even though the question of character has not been raised by him, should not, I think, be followed.

Starke J.

I agree.

Dixon J.

I desire to add that I agree that our decision does involve the position that the Crown is not entitled under sec. 412 of the Crimes Act 1900 N.S.W. to lead evidence of the accused's bad character as appears to have been suggested in Gibson's Case[2].

Evatt J.

As the matter is of general importance in the administration of criminal justice in New South Wales, I desire to emphasize that the decision we are giving rejects the interpretation of sec. 412 of the Crimes Act 1900 N.S.W. which commended itself to the Supreme Court in the case of R. v. Gibson[3].

McTiernan J.

I agree. I do not wish to add anything to what has been said by Rich J.

Appeal allowed. Order of Maxwell J. discharged. In lieu thereof conviction set aside and case remitted to the magistrate with the opinion of the Court that the evidence objected to was inadmissible and the information should be reheard. No order as to costs.

Solicitor for the applicant, Jack Thom.

Solicitor for the respondent, J. E. Clark, Crown Solicitor for New South Wales.

[1] (1930) 30 S.R. (N.S.W.) 282; 47 W.N. (N.S.W.) 119.

[2] (1930) 30 S.R. (N.S.W.) 282; 47 W.N. (N.S.W.) 119.

[3] (1930) 30 S.R. (N.S.W.) 282; 47 W.N. (N.S.W.) 119.