White v R [1962] HCA 51; (1962) 107 CLR 174 (2 October 1962)

HIGH COURT OF AUSTRALIA

WHITE v. THE QUEEN [1962] HCA 51; (1962) 107 CLR 174

High Court

High Court of Australia
Dixon C.J.(1), McTiernan(1), Kitto(1), Windeyer(1) and Owen(1) JJ.

CATCHWORDS

High Court - Appeal from Supreme Court of State - Special leave - Appeal against declaration as habitual criminal - No point of law involved - Judiciary Act 1903-1960 (Cth), s. 35 (1) (b).

HEARING

Adelaide, 1962, October 2. 2:10:1962
APPLICATION for special leave to appeal from the Supreme Court of South Australia sitting as a Court of Criminal Appeal.

DECISION

October 2.
The judgment of the COURT was delivered by DIXON C.J.:-
This is an application for special leave to appeal, of a somewhat unusual the Supreme Court, sitting as a Court of Criminal Appeal. It related to a sentence imposed on a prisoner convicted on three counts: two of shop breaking and larceny and one of house breaking and larceny. (at p175)

2. The prisoner was in fact just twenty-one years of age. Chamberlain J. imposed a sentence on him and declared him to be an habitual criminal. The material before Chamberlain J. consisted of the informations or indictments upon which the applicant was presently convicted and of a large number of previous convictions extending back for several years. A number of those convictions were in the Juvenile Court, but three of them were in the Supreme Court not so many years before those upon which he stood arraigned before Chamberlain J. (at p175)

3. The Full Court of the Supreme Court considered that the fixed term of imprisonment imposed upon those counts by Chamberlain J. should be reduced, but they did not disturb the declaration that the accused was an habitual criminal. (at p175)

4. We are indebted to Mr. Legoe for an interesting argument as to the correctness of that course, that is to say, the correctness of the course of affirming or refusing to alter the declaration that the man was an habitual criminal. (at p175)

5. It appears that in a previous case before that Court, Reg. v. Cook (1955) SASR 304 observations were made about the declaration that a very young man was an habitual criminal, and Mr. Legoe contends that in the present case those observations were departed from and, in fact, there were certain inconsistencies in the conclusions in the two cases. It is perhaps useful to say that it is not everything that appears in the Law Reports that is law, and that is a proposition which goes far beyond the Court of Criminal Appeal Reports or any South Australian Law Reports. The report of Cook's Case (1955) SASR 304 , although of course very useful for guidance, was not a report of a case which was intended to lay down strictly legal propositions but was intended, I have no doubt, as a considered decision in the way of giving some indication of the lines upon which the discretion in question should be exercised. (at p175)

6. In the present case the course adopted in declaring the applicant to be an habitual criminal involved no breach of positive law. There was no excess of jurisdiction; there was no violation of legal principles. Whether it was consistent with Cook's Case (1955) SASR 304 is not a matter in which we feel we should take any distinct interest. Our jurisdiction is to intervene by the exercise of a discretion given to us, a jurisdiction which extends over almost the whole of the judicial decisions of courts in Australia. It is a jurisdiction to grant special leave to appeal in a case which does not come within the categories of appeals of right, and yet appears to us to warrant our intervention, or perhaps I should say requires it. (at p176)

7. Efforts over a long period of years to define the effect of the word "special" have broken down but it remains true that what we are required to look for is something that is special in the case. Prima facie we do not think a case is special unless it involves some point of law of general application and, therefore, of importance. This case involves no point of law, none whatever, and we do not think that in such a case we should intervene unless there appears to have been a gross violation of the principles which ought to guide discretion in imposing sentences. In the history of the Court I think no such case has appeared and we have refused in matters of sentence to interfere time and time again under this jurisdiction to grant special leave. (at p176)

8. The present case is one which, in spite of the able presentation of the case by Mr. Legoe, does not come within the category in which we intervene and we think special leave should be refused. (at p176)

9. Special leave is refused. (at p176)

ORDER

Application for special leave to appeal dismissed.