R v Poole [1938] HCA 63; (1938) 61 CLR 1 (7 December 1938)

E. M. Mitchell K.C. (with him McIntosh), for the respondent informant on a preliminary objection.

This is an appeal from a conviction of the appellant by a stipendiary magistrate exercising Federal jurisdiction as a Court of Petty Sessions in New South Wales.

The appellant was convicted of an offence against regulations made under the Air Navigation Act 1920-1936. The appeal came to this court by virtue of the provisions of the Judiciary Act 1903-1937, sec. 39 (2) (b). It appears that the appellant after his conviction immediately lodged an appeal to the Court of Quarter Sessions. It is to be presumed that he complied with the provisions of the Justices Act in giving a recognizance conditioned to appear at the court and prosecute his appeal and abide the judgment of the court thereon (Justices Act 1902, sec. 123). After giving notice of appeal to the Court of Quarter Sessions an appeal was brought to this court, the procedure adopted being that of statutory prohibition as provided in the Justices Act N.S.W., secs. 112 et seq.

Pursuant to rule 1 of sec. IV of the Appeal Rules of this court, appeals to the High Court from the decisions of inferior courts of a State in the exercise of Federal jurisdiction are to be brought in the same manner and within the same times and subject to the same conditions as are prescribed by the law of the State for bringing appeals from the same court to the Supreme Court in like matters.

The Supreme Court of New South Wales has considered and dealt with the position which arises when a person against whom an order has been made in a Court of Petty Sessions exercises at one and the same time his right of appeal to a Court of Quarter Sessions and his right to take proceedings by way of statutory prohibition. The practice appears from the decision in Ex parte Giles[1], where it was held that the institution of an appeal in the Court of Quarter Sessions against a conviction by a magistrate was not a bar to proceedings under a rule nisi for prohibition to restrain further proceedings under the same conviction. To this case may be added the authorities cited by Dr. Louat this morning. Appeals to Courts of Quarter Sessions and General Sessions, in this country as in England, are by way of rehearing upon fresh evidence. Thus it was held in Ex parte Morrissey[2] that where a respondent did not appear upon an appeal and no evidence was given it was the duty of the Court of Quarter Sessions to quash the conviction of the appellant. It is evident that the Court of Quarter Sessions is seised of the whole question of the guilt or innocence of the accused, and is bound to pronounce upon all the issues of fact or questions of law which are necessary for the determination of the question whether the accused ought or ought not to be convicted upon the information.

The decisions mentioned show that, according to the practice established by the Supreme Court under the Justices Act of New South Wales, the institution of proceedings by way of appeal to the Supreme Court cannot be regarded as prejudicing an appeal by a defendant to a Court of Quarter Sessions.

In appeals to this court by virtue of sec. 39 (2) (b) of the Judiciary Act 1903-1937 the State practice is the basis of the procedure whereby an appeal is brought to this court. We are, accordingly, not prepared to say that the pendency of an appeal to a Court of Quarter Sessions excludes an appeal to this court or vice versa.

This court, however, is, in Australia, the court of final appeal. It is not consistent with the character of such a court that it should entertain an appeal while proceedings are pending in an inferior court which has jurisdiction, not yet fully exercised, to determine the subject matter of that appeal. Fletcher Moulton L.J. said in Doleman & Sons v. Ossett Corporation[3]:—"There cannot be two tribunals each with the jurisdiction to insist on deciding the rights of the parties and to compel them to accept its decision. To my mind this is clearly involved in the proposition that the courts will not allow their jurisdiction to be ousted."

Where the course adopted in the present case is followed, if the court were to proceed to hear the appeal, it would be possible for the Court of Quarter Sessions, on new and different evidence, or even on the same evidence, to acquit the accused person when this court had affirmed his conviction, or to inflict a punishment different from that imposed by the order which we had affirmed. A court of final appeal should adopt measures to prevent the possibility of such a result. This it can do by declining to hear an appeal while proceedings of the character mentioned are still pending.

We do not think it sufficient for counsel to express in this court his willingness on behalf of his client to abandon proceedings in the inferior court. It is necessary that the inferior court should have finally dealt with the matter so that it is functus officio. The court is therefore not prepared to proceed with the hearing of this appeal until the proceedings before the Court of Quarter Sessions have been terminated.

The hearing of the appeal is therefore adjourned sine die. Either party is to be at liberty to apply to a justice of the court to put the appeal in the list. All questions of costs are reserved.

Application adjourned sine die. Either party to be at liberty to apply to a justice of the court to put the appeal in the list. All questions of costs reserved.

[1] (1912) 29 W.N. (N.S.W.) 83.

[2] (1911) 11 S.R. (N.S.W.) 550; 28 W.N. (N.S.W.) 130.

[3] (1912) 3 K.B. 257, at p. 269.

High Court of Australia

R v Poole [1938] HCA 63; (1938) 61 CLR 1 (7 December 1938)

HIGH COURT OF AUSTRALIA