R v Bradley [1935] HCA 72; (1935) 54 CLR 12 (27 November 1935)

In this case special leave to appeal from a judgment of the Full Court of Victoria sitting as a Court of Criminal Appeal was granted by this Court.

The accused persons, Bradley and Lee, were presented for that they "did contrary to the Crimes Act 1914-1932 of the Commonwealth of Australia without lawful authority or excuse have in their possession certain coining instruments to wit two plaster moulds one of the said moulds being adapted to make the resemblance of one side of an Australian florin the other said mould being adapted to make the resemblance of one side of an Australian threepence." This offence is alleged in the terms of secs. 53 and 51 of the Commonwealth Crimes Act 1914-1932. The prisoners were tried in a Court of General Sessions at Melbourne. The Justices Act 1928, sec. 187, gives jurisdiction to that Court by providing that the Courts of General Sessions shall have authority to "inquire of hear determine and adjudge all indictable offences (whether committed within or without the bailiwick in which such Court is sitting) save and except the offences following." Then follow certain classes of offences. The fourth exception is expressed in these terms: "(iv.) Offences against the King's title prerogative person or government or against either House of Parliament."

It was objected that the offence with which the prisoners were charged was an offence against the King's prerogative or government. The Full Court decided that the objection was sound, and accordingly the convictions were quashed.

The decision of the Full Court is based on two grounds. In the first place it is said that a similar exception exists in the case of Courts of Quarter Sessions in England, and that the text books recognize that coinage offences are not within the jurisdiction of those Courts. It has been pointed out, however, that the references made by the Full Court do not support this proposition, and that the exception of certain offences from the jurisdiction recognized in the books is due to the fact that those offences were formerly punishable by transportation for life and since by penal servitude for life and that the exception is based on that ground only. Courts of Quarter Sessions have exercised unchallenged jurisdiction in the case of other coinage offences for many years.

The second ground of the decision of the Full Court is that, apart from the authority which, it was suggested, was derived from English practice, this is an offence against the King's prerogative. It is well settled that the jus monetœ is a royal right and part of the prerogative, and that that has been so for many centuries. It is clear that in Australia sec. 51 (XII.) of the Constitution authorizes the Commonwealth Parliament to legislate with respect to this prerogative of the King. It is contended that the offence charged is an offence against the prerogative, and therefore excluded from the jurisdiction of Courts of General Sessions. In this case the prisoners were charged with a breach of a specific section of a specified statute. It is because of the provision contained in that statute that they became liable to a particular penalty. It is a statutory offence. There is, in my opinion, a clear distinction between a right the enforcement of which depends upon the enforcement of a particular statute and a right which is dependent on a prerogative of the King. In Attorney-General v. De Keyser's Royal Hotel[1] it has been declared by the highest authority that, when a statute deals with a subject matter which was formerly within the prerogative, rights and duties relating to that subject matter depend upon the statute and not upon the prerogative. Lord Atkinson says:—"Those powers which the Executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised"[2]. And on the next page his Lordship, after saying that the expression that the prerogative becomes "merged" in the statute is not happily chosen, says: "I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance." It appears to me that the principle there laid down is conclusive of this case, that the offence with which the prisoners were charged depends on the terms of the statute, and not upon any considerations affecting the prerogative, and that therefore the objection taken fails.

It was further contended that these offences were offences against the government, within the meaning of that expression in sec. 187 of the Justices Act 1928. It was found difficult to suggest any general rule which, while resulting in these being offences against the government, would prevent many other acts being offences against the government because they interfere in some manner with the administration of government departments or the exercise of the prerogative by a Minister. In my opinion, this is not the meaning of the phrase. The meaning of the phrase is well illustrated (though I do not say that it is defined) by the classification in the Commonwealth Crimes Act, where Part II., headed "Offences against the Government," deals with such offences as sedition. The exception in the Justices Act is intended to cover offences of that type.

I agree that the Court of General Sessions had jurisdiction to try the offences upon which the prisoners were convicted.

I do not think statutory crimes in connection with counterfeiting are offences against the prerogative under sec. 187 (IV.) of the Justices Act 1928 Vict., whatever may be the present relation of the prerogative power of the Crown to the currency, nor do I think they fall within the description, offences against the government.

I agree. I add a reference to the statute 5 & 6 Vict. c. 38, which defines the jurisdiction in England of justices in General and Quarter Sessions of the Peace. It enacts that justices shall not try any person for treason, murder or capital felony or for any felony which when committed by a person not previously convicted of felony is punishable by transportation beyond the seas for life, now penal servitude (see Stone's Justices Manual, 65th ed. (1933), pp. 232, 1523-1526), or certain other offences, including offences against the Queen's title, prerogative, person or government or against either House of Parliament.

Many coinage offences are not triable at Sessions in England because of the exception from jurisdiction of the felonies already mentioned, and when English text books state that a coinage offence is not triable at Sessions the statement is referable to that exception and not to the exception of offences against the Queen's prerogative. The jurisdiction of justices in Sessions in England to try other coinage offences has never been doubted and has been often exercised (Archbold, Criminal Pleading, 25th ed. (1918), pp. 1432, 1433).

The exception as to felonies, other than felonies punishable with death, was not copied in the Justices Act 1928 Vict., sec. 187, but this omission does not appear to have been brought to the attention of the learned Judges of the Full Court and doubtless led to misapprehension on their part.

Since the passing of 5 & 6 Vict. c. 38, which first excluded from the jurisdiction of Courts of Quarter Sessions offences against the Sovereign's title, prerogative, person or government, or against either House of Parliament, it appears to have been taken for granted that coinage offences were triable at Quarter Sessions, subject to any particular exclusion depending upon the nature of the penalty imposed. It may be conceded that the nature of the power to coin money, as well as the history of coinage offences, gives ground for the contention that they are all offences against the prerogative in this sense that, although offences provided by statute, the statutory provisions creating them are designed to protect the prerogative. To coin money and use it as currency was an exercise of the prerogative power of the Crown. From early times the making of counterfeit money was considered treason at common law. Such offences were regarded, "not as mere frauds fraught with grave harm to the community, but also and chiefly as the invasion of a specially royal right which our Kings had jealously guarded, and any tampering with the King's image and superscription on seal or coin was assimilated to an attack upon his person" (Pollock and Maitland, History of English Law (1895), vol. 2, p. 503). Counterfeiting the King's money was expressly included in the statute of Edward III., 25 Edw. III., stat. 5, c. 2.

In many respects statute law now regulates the coinage. But the coining of money may still depend in England upon the prerogative as regulated by statute. (See Halsbury, 2nd ed., vol. 6, p. 549, note h.) The power of the Commonwealth, however, over coinage arises under sec. 51 (XII.) of the Constitution, which confers a legislative power. The Coinage Act 1909, passed in the exercise of that power, is the only source of authority for the Commonwealth to coin and issue money. Its authority in no way rests upon the King's prerogative. But under that Act (sec. 5) British coins are legal tender in Australia. For this reason it is suggested that money current in Australia does not depend exclusively on statutory authority. So much of it as is minted in England may rest ultimately upon an exercise of the prerogative. The offences created by Part IV. of the Commonwealth Crimes Act 1914-1932 include the counterfeiting and clipping of money minted in England. It is said, therefore, that these offences are designed to protect the prerogative on which the minting and issuing of such money finally depend. It may be matter for surprise that no one in England has ever raised the contention that coinage offences are outside the jurisdiction of Quarter Sessions because offences against the Sovereign's prerogative or government. But the fact is that such offences have not been considered of that nature. The expression "offences against the prerogative" is open to more than one meaning. It does not necessarily mean violations of penal laws which uphold the exercise of the prerogatives of the Crown or relate to things done under it. Offences existed at common law, simply because the prerogative itself required the subject to refrain from doing various acts. Probably the offences of that kind which survive are few in number. They include disobedience of proclamations commanding the observance of duties arising under the common law, and of other proclamations good at common law, perhaps offences which exist in virtue of proclamations validly made in time of war, and offences in relation to treasure trove (see Chitty, Prerogatives of the Crown (1820), and R. v. Thomas and Willett[3]). If the expression "offences against the prerogative" is confined to such offences, it clearly would not extend to coinage offences under statute. There is some difficulty in confining the expression to that meaning, because it occurs in conjunction with the words "against the Queen's ... person or government or against either House of Parliament." These words appear to describe the tendency of the offence and not the legal source from which it arises. But, hitherto, statutory offences have not been considered excluded as offences against the prerogative. The statutory description is nearly a hundred years old. When a long course of practice has been established under an old statute relating to judicial proceedings, and books of practice are uniform in stating it as law, it is very undesirable that Courts should take an opposite view. I find in Pritchard's Quarter Sessions (1875) that coinage offences are described under the title "Misdemeanours triable at Quarter Sessions." The earlier work on Quarter Sessions by Dickinson (1845) treats them as there triable. Many editions of Archbold's Criminal Pleading have indicated that, except when the punishment took them outside the jurisdiction, they were triable at Quarter Sessions. In Victoria, as I understand, it has been the constant practice, both before the Commonwealth Crimes Act and since, to try this class of crime at General Sessions. As the statute is susceptible of a construction which supports that practice, I think that construction should be adopted.

In my opinion the expression occurring in sec. 187 (IV.) of the Justices Act 1928 Vict. should be understood as referring to offences against the law which forms part of the law of the prerogative. I do not think that coinage offences are included in the words offences against the government.

For these reasons I am of opinion that the appeal should be allowed and the criminal appeals remitted to the Full Court.

The Coinage Act of the Commonwealth is the only source of the Governor-General's power, as representative of the King, to make and issue coins. The offences charged are against statutory provisions enacted under the constitutional legislative power over coinage or that incident thereto. Such offences are not "against the King's prerogative" (see Attorney-General v. De Keyser's Royal Hotel[4]). There is nothing else that I would wish to add. I agree that the appeal should be allowed.

Appeal allowed. Matter remitted to the Court of Criminal Appeal to be dealt with in accordance with law.

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

[1] [1920] UKHL 1; (1920) A.C. 508.

[2] (1920) A.C., at p. 538.

[3] [1863] EngR 73; (1863) Le. & Ca. 313; 169 E.R. 1409.

[4] [1920] UKHL 1; (1920) A.C. 508.

High Court of Australia

R v Bradley [1935] HCA 72; (1935) 54 CLR 12 (27 November 1935)

HIGH COURT OF AUSTRALIA