Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353 (17 October 1955)

HIGH COURT OF AUSTRALIA

ASTON v. IRVINE [1955] HCA 53; (1955) 92 CLR 353

Constitutional Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Constitutional Law (Cth.) - Judicial power - Executive power - Legislative power as to service and execution throughout the Commonwealth of process - Statute - Validity - Execution of warrant for apprehension of person in State other than that of issue - Provision for indorsement of warrant in State of execution - By magistrate etc. having power to issue warrants in that State - Power conferred on magistrate etc. to remand to State of issue of warrant or to admit to bail or discharge person apprehended - Jurisdiction conferred on judge of the Supreme Court of the State to review decision of magistrate etc. by way of rehearing - Whether in his capacity to constitute the Supreme Court - Conspiracy to cheat and defraud - Object of conspiracy - The Constitution (63 & 64 Vict. c. 12), ss. 51 (xxiv.), 67, 77 (iii.) - Service and Execution of Process Act 1901-1953 (No. 11 of 1901 - No. 48 of 1953), ss. 18, 19.

HEARING

Melbourne, 1955, October 4, 5, 6, 7, 17. 17:10:1955
CAUSES REMOVED INTO HIGH COURT UNDER THE Judiciary Act 1903-1955.

DECISION

October 17.
THE COURT delivered the following written judgment: -
These are three orders nisi to review granted by a judge of the Supreme and Execution of Process Act 1901-1953. They come before this Court because, upon the orders being moved absolute before the learned judge, a contention was raised that s. 19 was ultra vires of the Parliament of the Commonwealth, and thereupon his Honour held that the proceedings were transferred to this Court in pursuance of s. 40A of the Judiciary Act 1903-1955. To avoid any argument as to the correctness of the view that s. 40A applied we made an order under s. 40 of the Judiciary Act removing the causes into this Court. (at p362)

2. The matters arose in this way. Informations were sworn in South Australia against Irvine, Jenkins and Conway for conspiracy to cheat and defraud by the use of an electric battery upon a horse named "Thundering Legion" in a race to be held at Morphettville on 21st May 1955. The charge against each of them was that he conspired with other persons to cheat and defraud such persons as should invest money on other horses in the race. Aston, a detective sergeant of the South Australian police, then appeared before a Victorian magistrate, who, pursuant to s. 18 (1) of the Service and Execution of Process Act 1901-1953, made an indorsement on each of the warrants authorizing Aston, among others, to execute the warrants and bring, as the case might be, Irvine, Jenkins and Conway respectively, if apprehended in Victoria, before the magistrate or some other justice of the peace of the State of Victoria to be dealt with according to law. All three were apprehended within Victoria and brought by Aston before magistrates. The magistrate before whom Irvine and Jenkins were brought took the view that the facts did not disclose an indictable conspiracy under South Australian law and he discharged the two men, acting apparently under s. 18 (6) (c) of the Service and Execution of Process Act. The magistrate before whom Conway was brought took the contrary view and made an order requiring him to appear before the Police Court at Adelaide on 27th July 1955 to answer the charge, admitting him to bail. (at p363)

3. The three orders nisi now before us were granted to review these decisions, further bail being taken from Conway. (at p363)

4. The validity of s. 18 as well as of s. 19 of the Service and Execution of Process Act is impugned before this Court and it is convenient to begin by considering s. 18. Sub-section (1) of that section deals with a warrant for the apprehension of a person which has been issued in accordance with the law of a State or part of the Commonwealth. The sub-section is expressed to empower the making in another State or part of the Commonwealth of an indorsement on the warrant authorizing its execution in that State or part of the Commonwealth and the bringing of the person apprehended before the magistrate indorsing the warrant or before some justice of the peace. The conditions to be fulfilled are that the person against whom the warrant has been issued should be, or should be supposed to be, in, or on his way to, that State or part of the Commonwealth, and that the person making the indorsement should be satisfied that the warrant was issued as required by the sub-section, proof of the signature to the warrant being given. (at p363)

5. The persons to whom the sub-section entrusts this power of indorsing warrants are described in the following terms, "a magistrate, justice of the peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth". ("Another" means other than that in which the warrant was issued.) (at p363)

6. It is contended that the legislative power of the Commonwealth does not extend to conferring such an authority upon magistrates, justices of the peace and officers appointed by a State. The like contention is made with respect to the power conferred by sub-ss. (3), (5) and (6) of s. 18 but it is desirable to deal first with the argument in its application to sub-s. (1). The power given by that sub-section is, of course, ministerial. The legislative power exercised is conferred by s. 51 (xxiv.) of the Constitution which provides that the Parliament may make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. The nature of this power, as well as the prior history of the subject to which it relates, provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State. It is a legislative power given to the central legislature for the very purpose of securing the enforcement of the civil and criminal process of each State in every other State. It is given to the central legislature because before federation it had been found that territorial limitations upon colonial power made the effective reciprocal action of the colonies in this field difficult, to the point of impossibility: see, for example, Ray v. M'Mackin (1875) 1 VLR (L) 274 , and other cases cited in Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp. 614-619. It is a power to be exercised in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth. No doubt the words "throughout the Commonwealth" include the Territories, at all events those within Australia, but that involves no material qualification of the statement. (at p364)

7. The magistrates, justices of the peace and other officers mentioned by sub-s. (1) as having power to issue warrants for the apprehension of persons under the law of a State exercise that power under the authority of the law, which reposes it directly in them. They are not agents vicariously exercising an authority derived from the executive government of the State as a principal. To give them the power in question involves no interference with the functions of the executive government of the State. There is no constitutional principle or rule of construction standing in the way of an interpretation of s. 51 (xxiv.) which supports such a provision as s. 18 (1): cf. Holmgren v. United States [1910] USSC 133; (1909) 217 US 509, at pp 517-518 [1910] USSC 133; (54 LawEd 861, at p 865) ; Robertson v. Baldwin [1897] USSC 20; (1896) 165 US 275, at p 280 [1897] USSC 20; (41 LawEd 715, at p 717) and Willoughby, Constitutional Law of the United States, 2nd ed. (1929), vol. 1, p. 120. But a novel argument is advanced. It is that s. 18 including sub-s. (1), amounts to an attempt to entrust to State officers, officers not appointed pursuant to s. 67 of the Constitution, a function forming part of the executive power of the Commonwealth which by Chap. II must, as it is said, be exercised by the Governor-General and the Ministers and officers appointed in accordance with its provisions. (at p365)

8. It is unnecessary to pursue the various implications of this argument. It is enough to say that s. 18 confers specific legal powers upon the magistrates, justices of the peace and officers authorized by State law to issue warrants of apprehension. The use of these powers involves an independent responsibility and does not involve the executive power of the Commonwealth. (at p365)

9. The validity of sub-s. (2) is a fortiori. A claim, however, may be made that sub-s. (3), considered with sub-s. (6) of s. 18, involves the judicial power of the Commonwealth. If these sub-sections do confer any part of the judicial power of the Commonwealth a difficulty might arise, because they confer power not on a State court but upon the magistrate and the justice of the peace. Section 77 (iii.) of the Constitution empowers the Parliament to invest any court of a State with federal jurisdiction. A justice of the peace is not a court and in at least one State he has no strictly judicial functions. And although a magistrate may constitute a court of petty sessions sub-ss. (3), (5) and (6) do not invest him with authority in that capacity. The authority committed by sub-ss. (3), (5) and (6) to the magistrate or justice is susceptible of being treated as a judicial function. For the question whether a person actually within one State is liable to be sent under a law of the Commonwealth for trial to another State might be treated by the legislature as a matter arising under a law made by the Parliament within s. 76 (ii.) for the purpose of s. 77 (iii.) of the Constitution. But the scheme of s. 18 and s. 19 seems to be to treat the magistrate or the justice as exercising a preliminary discretion to grant, so to speak, process ministerially and then to submit for judicial review by a judge of the Supreme Court the whole question of the liability of the person apprehended to be returned to the State originating the proceeding. (at p365)

10. Sub-section (3) of s. 18 gives to the magistrate or justice before whom is brought the person apprehended under the indorsed warrant a bare power to order him to be returned in custody to that State or to admit him to bail to appear there. Sub-section (6) enables the magistrate or justice to discharge him if it appears that the charge is of a trivial nature, that the application for his return is not made in good faith in the interests of justice or that for any reason it would be unjust or oppressive to return him at all or until the expiration of a certain period. This does not necessarily amount to a grant of the judicial power of the Commonwealth and there is no reason to treat the provision as unconstitutional. (at p365)

11. But s. 19 gives the accused person, if his return is directed, or the person bringing the warrant, if the accused is discharged, a right to resort to a judge of the Supreme Court for a review of the matter. The review is by way of rehearing and may be on fresh evidence. The judge may confirm vary or quash the order and substitute a new order. He may release the accused on bail and exercise other incidental powers. Closely as the powers of the judge may resemble the authority of the magistrate or justice, the provision nevertheless does appear to treat the question as a matter arising under federal law for decision by a court of justice. There is no reason why it should not be so treated. The pattern of the legislation resembles in a very general way the pattern of the taxing laws which enable the commissioner or a board of review to make a binding assessment subject to appeal to the Court in its original jurisdiction. Section 19 involves an exercise of the legislative power conferred on the Parliament by s. 77 (iii.) of the Constitution. Notwithstanding the fact that the jurisdiction is in terms conferred on a judge of the Supreme Court of a State and not upon the court eo nomine, it is a valid exercise of the power. For the jurisdiction is conferred on every judge as a member of the court. In other words, it is in his capacity to constitute the court that he is named: see Parkin and Cowper v. James [1905] HCA 64; (1905) 2 CLR 315, at pp 343, 344 and Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62, at pp93-97 . It means no more than that the court shall be constituted by one judge. (at p366)

12. The attack on the validity of s. 18 and s. 19 therefore fails. (at p366)

13. It remains to consider whether the three accused men ought or ought not to be sent to Adelaide for trial on a charge of conspiracy. This is a question which is before us since the whole cause was removed, and although doubtless we might remit it for the consideration of the judge of the Supreme Court, it is better for us to decide it here. (at p366)

14. It would be unjust or oppressive to return the accused to Adelaide if the facts as they are alleged or appear make it clear that there was no indictable conspiracy. On this ground it is urged that we should decide in favour of their immediate discharge. To refuse to give effect to this contention means no more than that the men must be remanded to Adelaide. For a decision at this stage for their return does not, of course, mean that we hold that there was a conspiracy. That is essentially a matter of fact depending upon proof beyond reasonable doubt at the trial. Indeed such a decision ought not to foreclose the accused even upon a point of law that might otherwise be raised upon the committal proceedings in Adelaide or at the trial. All that it means is that upon the facts suggested for the prosecution, if made out, what in law may amount to an indictable conspiracy may reasonably be found. It is not enough that the information as laid is open to criticism, as very likely it is. In the circumstances of this case it must appear that upon the suggested facts the charge of conspiracy is misconceived. It is only in that event that the accused should be discharged now. What is alleged here is more than a combination to violate the rules of racing. It involves deception for the purpose of securing a declaration that the horse had won the race, so that the prize-money and bets would follow, when according to the rules of racing there would be no title to such a declaration but on the contrary there should be a disqualification. It is undesirable to say more now than that these elements in the facts alleged warrant the course of remanding the accused persons to Adelaide in pursuance of the warrants to undergo committal proceedings or trial. A consideration of the cases of R. v. De Berenger [1814] EngR 480; (1814) 3 M & S 67 (105 ER 536) ; R. v. Hudson [1860] EngR 213; (1860) Bell 263 (169 ER 1254) ; R. v. Donnelly 28th Nov. (1860), Argus Newspaper (Vict.). ; Kerford & Box's Digest, 153 (5 Aust. Digest 214); R. v. Aspinall (1876) 2 QBD 48, at pp 59, 60 ; R. v. Warburton (1870) 1 CCR 274 , is enough to show that this course is justified. The orders nisi in the case of Aston v. Irvine and Aston v. Jenkins should be made absolute and an order should be made in each of those cases that the person against whom the warrant was granted be returned to South Australia and for that purpose that he be admitted to bail on his recognizance in the sum of 100 pounds with one surety in the same amount to appear at the Police Court at Adelaide on the date and at the time therein specified to answer the charge in the warrant. In the case of Conway v. Aston the order nisi should be discharged and Conway should be admitted to bail in a like recognizance with one surety. The recognizance will be taken before a judge of this Court. (at p367)

ORDER

Aston v. Irvine.

It having been considered by Gavan Duffy J. a judge of the Supreme Court of Victoria that there arose upon the return before him of this order nisi a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States so that the cause stood removed to this Court by virtue of s. 40A of the Judiciary Act 1903- 1955 and the order nisi having come accordingly before this Court for hearing and this Court for greater certainty having thereupon made an order under s. 40 of the said Act that the cause be removed into this Court, it is now ordered by the Court as follows, viz. : - order nisi made absolute. Order that Henry William Irvine the person mentioned in the warrant be returned to the State of South Australia and for that purpose that he be admitted to bail on his own recognizance in the sum of 100 pounds with one surety in the same amount to appear at the Police Court at Adelaide in the State of South Australia on a date and at a time to be specified in the recognizance to answer the charge in the said warrant. Further order that the said Henry William Irvine appear personally with his surety before a judge of this Court in Melbourne at 10 a.m. on Monday, 24th October 1955, so that such recognizance may be then and there taken.
Aston v. Jenkins.

It having been considered by Gavan Duffy J. a judge of the Supreme Court of Victoria that there arose upon the return before him of this order nisi a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States so that the cause stood removed to this Court by virtue of s. 40A of the Judiciary Act 1903-1955 and the order nisi having come accordingly before this Court for hearing and this Court for greater certainty having thereupon made an order under s. 40 of the said Act that the cause be removed into this Court, it is now ordered by the Court as follows, viz: - order nisi made absolute. Order that Lyall James Jenkins the person mentioned in the warrant be returned to the State of South Australia and for that purpose that he be admitted to bail on his own recognizance in the sum of 100 pounds with one surety in the same amount to appear at the Police Court at Adelaide in the State of South Australia on a date and at a time to be specified in the recognizance to answer the charge in the said warrant. Further order that the said Lyall James Jenkins appear personally with his surety before a judge of this Court in Melbourne at 10 a.m. on Monday, 24th October 1955, so that such recognizance may be then and there taken.
Conway v. Aston.

It having been considered by Gavan Duffy J. a judge of the Supreme Court of Victoria that there arose upon the return before him of this order nisi a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States so that the cause stood removed to this Court by virtue of s. 40A of the Judiciary Act 1903-1955 and the order nisi having come accordingly before this Court for hearing and this Court for greater certainty having thereupon made an order under s. 40 of the said Act that the cause be removed into this Court, it is now ordered by the Court as follows, viz: - order nisi discharged. Order that Noel William Conway the person mentioned in the warrant be admitted to bail on his own recognizance in the sum of 100 pounds with one surety in the same amount to appear at the Police Court at Adelaide in the State of South Australia on a date and at a time to be specified in the recognizance to answer the charge in the said warrant. Further order that the said Noel William Conway appear personally with his surety before a judge of this Court in Melbourne at 10 a.m. on Monday, 24th October 1955, so that such recognizance may be then and there taken.

The Queen v. Duggan and Irvine; Ex parte Aston. Order nisi for mandamus discharged.

The Queen v. Duggan and Jenkins; Ex parte Aston. Order nisi for mandamus discharged.