Zarb v Kennedy [1968] HCA 80; (1968) 121 CLR 283 (6 December 1968)

HIGH COURT OF AUSTRALIA

ZARB v. KENNEDY [1968] HCA 80; (1968) 121 CLR 283

Defence (Cth) - Summary offence

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Taylor(4), Menzies(5), Windeyer(6)
and Owen(7) JJ.

CATCHWORDS

Defence (Cth) - National Service - Failure to comply with call-up notice - Whether honest and reasonable belief of exemption a defence - Belief that exempt from national service - Opinion by counsel basis of belief - Notice to be served by Secretary of responsible department or his delegate - Service by police officer - National Service Act 1951-1968 (Cth), ss. 26, 51 - Justices Act 1958 (Vict.), s. 86.

Summary offence - Penalty imprisonment for two years - Offender to be given opportunity to enter into recognizance to perform national service - Whether right to trial by jury - Whether penalty mandatory - The Constitution (63 & 64 Vict. c. 12), s. 80 - Crimes Act 1914-1966 (Cth), s. 20 - National Service Act 1951-1968 (Cth), s. 51.

HEARING

Sydney, 1968, November 25, 26; December 6. 6:12:1968

DECISION

December 6.
The following written judgments were delivered: -
BARWICK C.J. The appellant on 4th July 1968 was served by a member of the Service Act 1951-1968 (Cth) (the Act) calling him up for national service with the Military Forces of the Commonwealth and requiring him to present himself at a specified place at a specified time on 17th July 1968. He was a person who was duly registered under the Act. He was in fact a person liable to render service as required by the Act (s. 25). He did not present himself at the time and place set out in the notice. He was charged before a Court of Petty Sessions at Melbourne constituted by a stipendiary magistrate that being a person on whom a notice had been served under s. 26 of the Act, he did on 17th July at Melbourne, contrary to s. 51 (1) of the Act, fail to comply with the requirement of the notice. The complaint was heard by the Court of Petty Sessions on 14th October, the appellant being represented by counsel. After hearing evidence and argument, the magistrate convicted the appellant. As required by s. 51 (2) (b) he was given the opportunity of entering into a recognizance in the terms mentioned in that subsection. He refused to enter into such a recognizance whereupon the magistrate sentenced him to imprisonment for a period of two years, that being by common consent the appropriate period in his case under ss. 51 and 51B. Nobody suggested at that time that the magistrate could exercise the discretion given by s. 20 of the Crimes Act 1914-1966 (Cth). The magistrate as well as the legal representatives present thought the imposition of the sentence of two years imperative under the Act in the circumstances. (at p288)

2. The appellant has appealed to this Court by virtue of s. 73 of the Constitution, as implemented by s. 39 (2) (b) of the Judiciary Act 1903-1965 (Cth), and by reason of the existence of Div. 3 of Pt V of the Justices Act 1958 of the State of Victoria. But notwithstanding the terms of that Division, the appeal to this Court, no matter what the form of the vehicle by which the matter comes to it, is a full appeal on law and on fact: see Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419 ; Wishart v. Fraser [1941] HCA 8; (1941) 64 CLR 470, at p 480 . (at p288)

3. Certain of the grounds, mostly based on the Constitution, contained in the notice of appeal were expressly abandoned by senior counsel for the appellant who argued the case with candour and ability, and a further ground was added by leave of the Court. Stated briefly, the grounds of appeal on which the appellant relied were:

(1) that the magistrate ought not to have found as he did that
the notice had been duly served on the appellant;
(2) that certain evidence was wrongly rejected;
(3) that the magistrate was wrong in law and in fact in holding
that the appellant did not have an honest and reasonable
belief in a state of facts which if true made him exempt from
liability to render service under the Act;
(4) that the Court of Petty Sessions constituted by a
magistrate was not a competent or adequate tribunal to
hear and determine the trial and that the appellant was
thereby denied natural justice;
(5) that the appellant was denied trial by jury as provided by
s. 80 of the Constitution.
(6) that the magistrate was in error in regarding himself as
bound in the circumstances of the case to impose a sentence
of imprisonment for two years and that he ought to have
considered the exercise of the discretion and power granted
by s. 20 of the Crimes Act 1914-1966. (at p289)

4. After he was registered under s. 16 of the Act and before the service of the call-up notice to which I have referred, the appellant applied to a court of petty sessions at Melbourne pursuant to s. 29B of the Act for an order that he was exempt from liability to render military service on the ground that he held within the meaning of s. 29A a conscientious belief which did not allow him to engage in any form of military service. His application was heard by a stipendiary magistrate sitting in a court of petty sessions being a court of summary jurisdiction of the State of Victoria within the meaning of s. 29B of the Act. The magistrate found that the appellant did not hold the requisite belief and dismissed his application. This finding and this order the magistrate orally pronounced in the presence of the appellant on 2nd November 1967. (at p289)

5. Section 91 (15) of the Justices Act 1958 (Vict.) requires that, upon the making of an order by the justices, a minute or memorandum of the order then be made; s. 86 (2) requires the Clerk of the Court of Petty Sessions to keep a register of the minutes or memoranda of, inter alia, all orders made by the Court. By s. 86 (5) the entries relating to each such minute or memorandum shall be signed by the justices constituting the Court by or before whom the order referred to in the minute or memorandum was made. An extract of the register, certified by the Clerk to be true, is made prima facie evidence of the matters stated in the minute or memorandum. (at p289)

6. A duly certified extract of the register of convictions and orders of the Court of Petty Sessions at Melbourne is in evidence in this case. It consists of the minute made by the magistrate of his finding in respect of the appellant's conscientious beliefs and of the order of dismissal of his application. The minute, over the signature of the magistrate, contains the following: "I find that the applicant does not hold a conscientious belief that does not allow him to undertake any military duties of a combatant or non-combatant nature and I accordingly dismiss the application." (at p289)

7. Section 91 (15) provides that if the adjudicating justices so direct or the defendant or complainant so requests the conviction or order shall be drawn up in proper form. No such direction or request was made and no order was drawn up in respect of the appellant's application. (at p289)

8. The Act by s. 29B gives to the courts of summary jurisdiction a power to "decide" the question whether a person is exempt from liability to render service under the Act. But the regulations made under the Act provide for the making of an application for an order directing that the applicant be registered as a person exempt, wholly or partially, from liability to render service under the Act (reg. 31) which is to be referred to the appropriate court of summary jurisdiction (reg. 33). Regulation 34 provides that when the court has found the fact as to the existence or nonexistence of the conscientious belief, i.e., has decided the question referred to it under s. 29B, it shall make an order in the appropriate one of three scheduled forms. Where the decision is for total exemption, the order is to be in the terms of form 9: where the decision is against exemption and the application is dismissed, the order is to be in terms of form 11. In each case the scheduled form calls for its signature by the magistrate. (at p290)

9. Regulation 36 requires the clerk of the court within seven days after the making of such order to forward a copy thereof to the applicant and to the National Service Registrar who forwarded the application to the court. (at p290)

10. The finding which the magistrate made and orally announced and the order orally made dismissing the application conformed to the terms of form 11. The magistrate did sign the minute or memorandum of the finding and order. But on the day following the conclusion of the proceedings on the appellant's application, the Clerk of the Court of Petty Sessions at Melbourne filled out a form 9 with relation to the appellant and caused it to be sent to him. The magistrate had not signed and did not sign such a form in respect of the appellant. But the Clerk or someone under his direction inserted the magistrate's name in the form which was sent to the appellant, though without any specific indication such as the letters (sgd.) that there was a signature on any original. The use of this form was erroneous. The mistake was quickly observed by the Clerk who, on the day following the despatch of the form 9, notified the appellant's solicitors of his error and asked that they communicate what he had said to the appellant, which they undertook to do. This they did. In addition, the Clerk confirmed the fact of his "clerical" error by letter and a copy of an order in fact signed by the magistrate in accordance with form 11 was duly served on the appellant. All this took place before the service upon him of the call-up notice. (at p290)

11. But shortly after the receipt of the form 9 the appellant sought the opinion of junior counsel as to the effect of the service upon him of that form. He was advised in writing, in brief, that the signature of an order in one of three scheduled forms was under the Regulations the making of the order, and not the oral pronouncement in court; that he was entitled to assume that the original of the form 9 which had been served upon him had been signed by the magistrate: and that consequently he was exempt from liability to render service under the Act. Apparently the appellant accepted this view of counsel, and made no further inquiry as to what had in fact happened at the court subsequent to the conclusion of the proceedings, except that his solicitor inspected the register of convictions and orders of the Court of Petty Sessions. The appellant claimed not to have been told until the day of the proceedings in court that the magistrate had not signed an order in the terms of form 9. (at p291)

12. The appellant's defences to the charge of having failed to report in accordance with the terms of the notice, apart from submissions based upon the Constitution, were first that the notice had not been duly served upon him and, second, that he had an honest belief, reasonably based, that he was not liable to render service because, as he believed, he had been found to have a conscientious belief which satisfied the terms of s. 29A (1) of the Act. (at p291)

13. There could be no question that the call-up notice was served upon the appellant by a police officer. That was an undisputed fact. But it was said that upon the terms of s. 26, properly construed, service of such a notice, if not effected by post (see s. 60), could only be done by the Secretary of the Department of Labour and National Service in person or by some delegate to whom the power to effect service had been delegated in conformity with s. 6. This submission scarce calls for an answer for it is not merely completely unmeritorious, but plainly without any foundation. When s. 26 says that the Secretary may serve a notice, it authorizes the Secretary to create the notice and to cause it to be received by the addressee. The language of the section cannot be so tortured as to mean that his only authority is personally to deliver the notice. (at p291)

14. In considering the second defence, the magistrate assumed that the belief which the appellant professed, if made out to his satisfaction, would be an answer to the charge. He probably had in mind the decisions of this Court in Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 and Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100 . But, in my opinion, the propriety of this assumption needs examination. However, before doing so, I should wish to say that, in my opinion, the magistrate was quite right in concluding that the appellant had no such honest and reasonable belief: further, that even if the legal opinion, the terms of which he refused to admit, but which are known to this Court, be admissible and admitted, I would see no ground whatever for disturbing the magistrate's finding. Indeed, I should think that the finding was inevitable when the whole material is considered. The appellant was in court when the magistrate found that he did not have the requisite belief and made an order dismissing the appellant's application for an order. That finding was immediately binding for it was a decision of the question before the court pursuant to s. 29B, even if the Regulations required that thereafter a signed order be brought into existence in a specific form: see the terms of reg. 34. (at p292)

15. Apart from the fact that he must have realized that service on him of copy order in the terms of form 9 must have been the result of an error, he was expressly told by his solicitor within a day or so of the conclusion of the proceedings before the magistrate that the clerk who had made the error had so informed the solicitor. But as it seems to me, with little honesty but much cunning, he sought to exploit the clerk's error. He obtained a legal opinion which was based - and even to a lay reader must clearly have appeared to be based - upon the assumption that the magistrate had signed an order in the terms of form 9, an assumption incidentally which must necessarily be accompanied both in the mind of the appellant and of the writer of the legal opinion by the realization that such a signature must have been inadvertent for no possible ground could be found for an assumption that the magistrate had meantime in fact altered his express decision of the previous day and done so without reference to the parties. But, before the critical time - namely, the date for reporting in accordance with the call-up notice - the appellant's solicitor had searched the records of the court which clearly showed that the magistrate had made no such order. The appellant had also been served with an order corresponding to the finding of the magistrate announced in court. It does the appellant little credit to claim that he believed that the magistrate had found in his favour. So far from having any honest belief of that kind, the appellant's assertion that he had was, in my opinion, markedly dishonest. The magistrate was right to disbelieve him on his oath. (at p292)

16. In the first place, there is, in my opinion, no element of an evil or guilty mind in the offence of failing to comply with the notice. The subject matter of the Act, the nature of and occasion for the giving of the notice and the purpose it is to serve all combine to provide cogent and compelling reasons quite consistent with the expressions by their Lordships in Lim Chin Aik v. The Queen (1963) AC 160, at p 174 , for holding that mens rea is not an ingredient of the offence s. 51 creates. The offence, to use the current idiom, is one of absolute liability. This, however, leaves open the question whether a defence in accordance with the principles expounded in the cases of Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 and Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100 is available in the case of such an offence, the onus of establishing the defence on the probabilities being upon the defendant. (at p293)

17. Section 26 allows the Secretary to call up for service a person liable to render service under the Act. This is to be achieved by delivering to such a person, personally or by post, a notice as described in the section. The qualifications of a person liable to render service within the Act are fixed by s. 25. These qualifications are all objective; the person must be registered, or be required to register under the Act; have attained the required age; not be exempt from liability to render service under the Act and have not attained a specified age. The appellant's belief as to any of these matters is quite immaterial to the question whether or not he is in fact and in law liable to render service under the Act. The decision of the question whether a person is exempt from liability to render service is committed to the courts of summary jurisdiction and on appeal to the specified "Courts of Review": ss. 29C and 29CA. Being decided, the appellant's belief cannot affect the question whether he is a person required to render service under the Act. The other qualifications were present. He was therefore a person liable to render service. (at p293)

18. But what if he honestly believed that the magistrate had found that he held that conscientious belief which, being held, would have exempted him from the liability to render service under the Act? That matter is, of course, a matter of fact; and if what he believed had been the fact, he would not have been a person liable to render service; and there would have existed no authority to issue or serve a call-up notice upon him. (at p293)

19. The addressee of a call-up notice on presenting himself in accordance with it is deemed thereby to have been enlisted for service in the Regular Army Supplement and to have been engaged to serve in the force for a period of two years: s. 27 (1). Thus a person who is not liable to render service under the Act upon whom a call-up notice is served, if he wishes not to serve cannot present himself in accordance with it, and challenge the validity of the notice. The most obvious way to do so would be in a prosecution for failing to comply with the notice. A belief that the magistrate had made a finding that he was exempted would result in a belief that the call-up notice was invalid, which might be regarded as a matter of law rather than of fact. But I do not think it would be proper so to analyze the situation in relation to a prosecution under s. 51. I would conclude that an honest belief reasonably based that the magistrate had made the necessary finding to make him exempt from liability to serve would be a defence in such a prosecution. But this, it seems to me, is highly theoretical. In the first place, the finding of the magistrate is recorded: the register of orders of the Court of Petty Sessions is available for inspection. An honest belief reasonably based can scarcely be made out if reasonable inquiries have not been made: a stubborn refusal to accept the evidence of the register and a persistent unreasoning belief to the contrary would be dealt with somewhat along the lines of Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431, at p 444 . The belief in fact held would in that case be disregarded. In any case, if the defence succeeded, a new call-up notice could immediately be served to which, because of the disclosures at the hearing of the charge for failing to comply with the earlier notice, the defence of an honest belief, reasonably based, clearly could not be available. The defence thus, besides being somewhat theoretical, would, generally speaking, be futile. (at p294)

20. For the rest, the notice merely requires attendance at a particular place and time for the purposes of entering upon service with the Military Forces of the Commonwealth. There are no facts or circumstances attendant on or in connexion with such attendance which if they existed could have any bearing on the matter of compliance with the notice. But of course the defendant must fail to comply with the notice. That failure must be by an act of his volition. If, for example, he was injured before the date for compliance so as to be unable to present himself, he could not be convicted of failing to attend. (at p294)

21. The remaining ground of appeal directed against the conviction of the appellant was in reality that, because of what was claimed to be the serious nature of the offence derived from the extent of the punishment with which an offender could be visited, the Parliament was bound to provide that the offender be indicted, thus attracting the operation of s. 80 of the Constitution. This would mean that s. 51 (4) of the Act was invalid, in that it provided for summary trial of an offence under the section. But, in my opinion, the proposition that the Parliament is unable to provide that any offence shall be tried summarily is untenable. The question of the scope of s. 80 has, in my opinion, not only been long settled but ought not now to be reopened. (at p294)

22. The last matter to be dealt with concerns the sentence imposed upon the appellant. The magistrate did not consider the exercise of any discretion under s. 20 of the Crimes Act. It is said that this was an error as that section was of general application, and applied to the sentencing of a person convicted of an offence under s. 51 of the Act. However, in my opinion, though expressed in general terms, s. 20 must yield to any contrary intention to be found expressly or by necessary implication in a statute creating a particular offence. I would respectfully adopt what was said by Fullagar J. in Chu Shao Hung v. The Queen [1953] HCA 33; (1953) 87 CLR 575, at p 585 :

"Section 20 of the Crimes Act 1914-1950 is quite general in
terms. In terms it applies to every person convicted of an
offence against the law of the Commonwealth. It cannot, in
my opinion, be held inapplicable to an offence created by a
particular Act unless provisions are found in that Act which
exclude it expressly or by necessary implication. If it is not
expressly excluded, it is not to be held excluded unless it is
reasonably clear that its application would lead to some
inconsistency or incongruity."

and by my brother Kitto in the same case (1953) 87 CLR, at p 588 :

"Prima facie, therefore, the provisions of s. 20 of the Crimes
Act empower the court, without passing any sentence upon
him, to order his release upon giving security for his good
behaviour and for his compliance with such conditions as the
court thinks fit to impose. If this presumptive construction
is to be rejected, it must be for the reason that there is to be
found in the Immigration Act an expression or an implication
of a contrary intention."

These passages, in my opinion, properly indicate the relationship of s. 20 to other statutes creating criminal offences. (at p295)

23. To apply s. 20 to the case of an offence under s. 51 would mean that the magistrate might decide not to proceed to conviction at all. If he decides to convict, whether or not he imposes a fine, he must give the offender an opportunity to enter into a recognizance that, in substance, he would render service if required to do so. If the offender refused to enter into such a recognizance, the magistrate would be able, notwithstanding that refusal, to offer the offender a recognizance to be of good behaviour for some period, not necessarily related to the term for which the offender ought to have rendered service under the Act. When one bears in mind the clear purpose of the Act, and in particular of ss. 26 and 51, the incongruity of attempting to apply s. 20 is obvious. Further, a recognizance to be of good behaviour cannot be regarded as in any sense a substitute for punishment for the offence under s. 51, the opportunity to reform and abstain in the future from breach of the law which such a recognizance offers being quite irrelevant and inappropriate to the offence of refusing compliance with a call-up notice. Further, the correlation of the length of sentence for which ss. 51 and 51B to the length of service to be rendered under the Act points up not merely the policy behind the creation of the offence and the mandatory nature of s. 51 but the impossibility of applying the discretion which s. 80 gives to an offence under s. 51. In my opinion, the magistrate was not in error in regarding himself as bound in the circumstances to impose upon the applicant a sentence of imprisonment for two years. I would dismiss this appeal. (at p296)

McTIERNAN J. I agree that the appeal should be dismissed. (at p296)

2. The terms of s. 51 of the National Service Act 1951-1968 (Cth), in my opinion, exclude a presumption of legislative intention that some specific mental attitude is an ingredient of the offence but it does not necessarily follow that there is not a presumption of legislative intention that it would be a good defence if the accused could prove that he held an honest and reasonable belief that he was exempt from liability to render service under the Act: Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100, at p 104 ; and Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, at p 540 . The evidence tendered on behalf of the informant brought the case precisely within the terms of s. 51 (1). The accused attempted to set up such a defence as is mentioned above. The magistrate found that the evidence did not support it. I think that the decision of the magistrate is right. The sentence imposed is called in question because the accused, so it is said, did not get the benefit of a consideration by the magistrate of the question whether he should exercise his discretion under s. 20 of the Crimes Act 1914-1960 (Cth). In fact the possibility of the magistrate exercising such discretion was not mentioned to him. Upon a comparison of the provisions of s. 20, on the one hand, with the provisions of s. 51 (2) and s. 51B, on the other hand, it seems to me that any order which could be made in exercise of the discretion conferred by s. 20 would be repugnant to the scheme embodied in the provisions of ss. 51 (2) and 51B and therefore could not be authorized by s. 20: Isaacs v. McKinnon [1949] HCA 64; (1949) 80 CLR 502, at p 523 . Two further points were raised in support of the appeal, one that the call-up notice was not validly served. I think that this contention must be rejected. The power of the Secretary under s. 26 to serve such a notice was validly delegated. It is true that it was not handed by the delegate personally to Mr. Zarb but the fact was that the delegate caused the notice to be served on him. The other point is that s. 51 (4) is obnoxious to s. 80 of the Constitution. It was sought to support this submission by referring to comment on R. v. Archdall (1928) 41 CLR 128, at pp 139, 140 made in the case of R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, at pp 581, 582 . In my opinion this comment does not show that R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128 was wrongly decided. I am of opinion that there is no conflict between s. 80 of the Constitution and s. 51 (4) of the present Act. (at p297)

KITTO J. I agree generally in the judgments of the Chief Justice, Menzies J. and Owen J. Since, however, I regard it as transparently clear that the appellant had no honest belief, and could not reasonably have held a belief even with the assistance of the opinion with which junior counsel furnished him, that the magistrate whom he heard reject his claim to be exempt from military service had in fact made a subsequent order upholding that claim, I express no opinion as to whether such a belief, if honestly and reasonably held, would afford a defence to a charge of failing to comply with the requirements of a call-up notice. (at p297)

2. I would dismiss the appeal. (at p297)

TAYLOR J. I agree that the appeal should be dismissed. (at p297)

2. In my view the finding of the magistrate that the appellant did not, at the time of the offence charged, honestly believe that an order had been made having the effect of exempting him from liability to render service under the Act was not only justified but, upon the evidence, inevitable. Counsel's opinion, which it was sought to tender, did not purport to acquaint him with the existence of any relevant fact and was not admissible on this issue. But even if it were admitted it would add nothing to the defence on this ground. (at p297)

3. Upon the remaining contentions raised in the case I have nothing to add to the observations of the Chief Justice. (at p297)

MENZIES J. The appellant, having been convicted of an offence against s. 51 of the National Service Act 1951-1968 (Cth) - which I shall call "the Act" - for having failed to comply with a notice calling him up for service with the Military Forces of the Commonwealth and having been sentenced to two years imprisonment, has appealed to this Court against his conviction and sentence. The appeal is a full appeal. (at p298)

2. It is not in question that the appellant, being a person liable to render service, did not comply with a call-up notice in fact served upon him requiring him to present himself on 17th July 1968. (at p298)

3. The appellant did not support a number of grounds of appeal that were taken originally, including a challenge to the validity of the National Service Act. There were, however, four matters left to be decided. First, whether the appellant was served with the call-up notice as prescribed by s. 26 of the Act; secondly, whether his conviction, in accordance with s. 51 (4) of the Act, by a court of summary jurisdiction was unconstitutional as being contrary to s. 80 of the Constitution of the Commonwealth of Australia which provides that "The trial on indictment of any offence against any law of the Commonwealth shall be by jury"; thirdly, whether the opinion of counsel, which the magistrate refused to admit, was admissible evidence which would have established a lawful exculpation to which the magistrate, not having read the opinion, refused to accede, viz. that the appellant had a bona fide and reasonable belief in a state of facts which, if true, would have made innocent his non-compliance with the call-up notice; and finally, whether the magistrate was in error in regarding s. 51 (2) of the Act as requiring a person convicted and refusing to enter into a recognizance as therein specified, to be sentenced to imprisonment for the period of the service which he was liable to render - in this case two years. (at p298)

4. As to the first of these matters, the point is that whereas s. 26 (1) of the Act authorizes the Secretary of the Department of Labour and National Service to serve a call-up notice, the notice with which the appellant did not comply was served on him by a police officer and not the Secretary. Section 26, however, means no more than that the Secretary may cause a notice to be served; it does not require the Secretary himself to effect the service. (at p298)

5. As to the second matter, it is now well established that s. 80 of the Constitution does not mean that trial for any offence, or, what may be called a serious offence, against any law of the Commonwealth shall be by jury; this section means no more than it says, i.e., that every trial on indictment shall be by jury. To decide otherwise would be to depart from the law as established in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128 ; and R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 . There Latham C.J. said (1938) 59 CLR, at p 570 :

"Section 80 could easily have been better expressed if it
was intended that it should have the effect of preventing or
limiting the possibility of the Commonwealth Parliament
providing for the summary trial of all, or any particular,
offences (See Quick and Garran's Annotated Constitution of
the Australian Commonwealth (1901), p. 808 - reference to
Convention). But the section was in fact adopted in a form
which led the High Court, consisting of six Justices, to
decide in R. v. Archdall [1928] HCA 18; (1928) 41 CLR 128 , that s 80
did not prevent the Commonwealth Parliament from determining
whether any particular offence should be prosecuted on
indictment or summarily. It was held that s. 80 relates only
to trials which are in fact trials on indictment. Such trials
must be by jury - that is the meaning of the section."

Accordingly, s. 51 (4) of the Act does not contravene s. 80 of the Constitution. (at p299)

6. To deal with the third matter requires a statement of the relevant facts. A question having arisen earlier whether the appellant was a person entitled under s. 29A of the Act to an exemption from liability from service as a conscientious objector, this question was decided by a magistrate on 2nd November 1967 in accordance with s. 29B of the Act. It was decided adversely to the appellant. At the conclusion of the hearing the magistrate announced his decision in the presence of the appellant as follows: "I find that the applicant does not hold a conscientious belief that does not allow him to undertake any military duties of a combatant or noncombatant nature and I accordingly dismiss the application." Regulation 34 of the National Service Regulations is as follows:

"34. If, upon the hearing of an application made under this
Part, the court finds that the applicant holds a
conscientious belief that does not allow him -
(a) to engage in any form of military service; or
(b) to engage in military duties of a combatant nature
but allow him to engage in military duties of a
non-combatant nature,
the court shall direct -
(c) in any case to which paragraph (a) of this regulation
applies - by order in accordance with Form 9 that the
applicant be registered as a person exempt from
liability to render service under the Act; or
(d) in any case to which paragraph (b) of this regulation
applies - by order in accordance with Form 10 that
the applicant be registered as a person who is required
to engage in duties of a non-combatant nature only,
but if the court does not so find, it shall make an order in
accordance with Form 11 dismissing the application."

Upon deciding as aforesaid the magistrate did as he was required to do by the Justices Act (Vict.) and signed the Register of Convictions Orders and other proceedings in the Court of Petty Sessions at Melbourne recording the decision as previously stated. The magistrate also signed a document as follows:

" COMMONWEALTH OF AUSTRALIA Form 11
National Service Act

ORDER DISMISSING APPLICATION UNDER REGULATION 34
OF THE NATIONAL SERVICE REGULATIONS

2051237

Upon hearing the application of John Francis ZARB of 429
Gaffney Street, Pascoe Vale South, 3044 Builder's Labourer
I find that he does not hold a conscientious belief that does
not allow him to undertake any military duties of a combatant
or non-combatant nature and I accordingly dismiss the
application.

Dated this 2nd day of November 1967."

This was in fact a form 11 order and was signed subsequently to 2nd November. The Clerk of Court should then have sent to the appellant a copy of the order as made. Instead of doing so, by mistake and in advance of the signing of the form 11 order, he sent the appellant a document as follows:

" COMMONWEALTH OF AUSTRALIA Form 9
National Service Act

ORDER OF EXEMPTION FROM LIABILITY TO RENDER SERVICE
ON THE GROUND OF CONSCIENTIOUS BELIEF

2051237

Upon hearing the application of John Francis ZARB of 429
Gaffney Street, Pascoe Vale South, 3044 Builder's Labourer
I find that he holds a conscientious belief that does not allow
him to engage in any form of military service and that he is,
by virtue of the provisions of section 29A of the National
Service Act, exempt from liability to render service under that
Act.

Dated this 2nd day of November 1967.

W. J. CUTHILL
STIPENDIARY MAGISTRATE
COURT OF PETTY SESSIONS,

MELBOURNE"

This purports to be a copy of a form 9 order which never existed. The error having been discovered, a letter as follows with a copy of the order as made was sent to the appellant on 3rd November:

"Please find enclosed herewith a copy of the order
dismissing your application for registration as a
conscientious objector.

This office regrets that on the 2nd November 1967 an
incorrect copy order was forwarded to you.
Please forward the incorrect copy order to this office as
soon as possible. A stamped addressed envelope is enclosed." (at p301)

7. There was also a conversation between a clerk in the office of the Clerk of Courts and the office of the appellant's solicitor which the solicitor's clerk reported to the appellant as follows: "I told him the clerk said a clerical error had been made, that he sent a form 9 and he should have sent a form 11." On 17th November the Clerk of Courts wrote to the appellant's solicitors as follows:

" re - John Francis ZARB
. . .
Due to a clerical error an incorrect form was forwarded in
the first instance. Our file contains the original order of
dismissal, signed by the magistrate and this order is the one
which binds the applicant.
The applicant is quite well aware of the Court's decision in
this matter and I would ask your co-operation in advising the
applicant of his position."

To this letter no reply was received but in July 1968 the appellant's solicitors searched the court records. On 10th November 1967 counsel advised the appellant's solicitor on the footing that the magistrate had, in fact, signed an order of which the document sent to the appellant by mistake on 2nd November was a copy. Even had there been some doubt about the meaning of the letter of 3rd November - which seems clear enough to me - the advice could not have been given on the footing stated had counsel known of the conversation of 3rd November which, it is to be recalled, was reported by the solicitor's clerk to the appellant as follows: "I told him the clerk said a clerical error had been made, that he sent a form 9 and he should have sent a form 11". The basis on which the opinion was given was stated by counsel as follows: "I further read the letter (i.e., the letter of 3rd November) as meaning that the magistrate, after making the form 9 order, then decided he should have made a form 11 order and that to have made a form 9 order was incorrect." On this footing the following advice was given: "Nevertheless the form 9 order remains the order of the court. Having made the order, the magistrate was thereafter functus officio and any attempt to reverse it, except by appeal, must be ineffective. Neither under s. 111 of the Justices Act nor by inherent power may a magistrate reverse an order; Gregory v. Murphy (1906) VLR 71 . I therefore advise that the applicant is exempt from military service unless the Minister appeals against the order successfully." (at p302)

8. At the hearing of the information with which we are now concerned on 14th October 1968, the appellant gave evidence that he had read counsel's opinion, that he believed that he was exempted, and, accordingly, he did not comply with the call-up notice. Although the opinion had been tendered and rejected, counsel for the appellant, in the course of addressing the magistrate read part of his opinion after having stated his intention of doing so. What he said was as follows: "Regulation 34 of the National Service Regulations makes quite clear the fact that the form 9, 10 or 11 as the case may be when signed by the magistrate is the formal order in a conscientious objection application. Usually the order is what is announced in open court. Regulation 34, however, lays down a different rule to that. When the defendant received the form 9 he was entitled to and indeed should have assumed that the magistrate had signed the original and that the clerk was not acting capriciously. That being so it followed that the magistrate was thereafter functus officio and any attempt to reverse the order, except by appeal, was ineffective. Neither under s. 111 of the Justices Act nor by inherent power may a magistrate reverse an order: Gregory v. Murphy (1906) VLR 71, at p 76 ." As it turned out, therefore, the magistrate did have the very terms of counsel's opinion before him. Speaking of this his Worship said: "Perhaps not all the facts were given to counsel for his opinion." His relevant finding was as follows: "I am not satisfied that the defendant had an honest and reasonable belief that he was exempted." (at p302)

9. In these circumstances, even if the magistrate were wrong in refusing to admit the opinion - and he was not unless the defence to which it was directed was one applicable to an offence under s. 51 of the Act - its admission could have made no difference to the decision of the magistrate with which, having read counsel's opinion as well as the evidence, I am in entire agreement. The appellant, having heard the magistrate dismiss his application, having been told that the document sent to him first was sent by the clerk in error, and having had the letter of 17th November, it just did not lie in his mouth honestly to say as he did: "I was not told until today that an order had not been made exempting me." Assuming, contrary to my own opinion, that a mistaken belief as to his exemption could afford the appellant a defence to the charge under s. 51 of the Act, I am satisfied that the so-called defence was not made out and that the magistrate was right in rejecting it. This conclusion also makes it unnecessary to determine whether, if the appellant did labour under any mistake at all, that mistake was an error of fact or an error of law. (at p303)

10. The last matter to be decided is whether s. 51 (2) of the Act required the court to sentence the appellant to two years imprisonment. I have no doubt that it did. The section makes an offender liable to a fine; furthermore it requires the court to ask the offender whether he would enter into a recognizance to comply with the subsequent call-up notice; it then provides as follows:

"51 - (2) (c) if the person does not forthwith enter into such
a recognizance to the satisfaction of the court, the court shall
sentence him to imprisonment in respect of the offence"

for the period specified. The word "shall" as used in s. 51 (2) (b) and s. 51 (2) (c) is clearly mandatory. These provisions are entirely inconsistent with the court exercising the power conferred in general terms by s. 20 of the Crimes Act to release a person convicted of an offence against the law of the Commonwealth, either without passing any sentence upon him, or, upon his giving security of good behaviour. Section 20 is therefore excluded by s. 51 (2) (c) of the Act: Chu Shao Hung v. The Queen [1953] HCA 33; (1953) 87 CLR 575 . (at p303)

11. It follows, in my opinion, that the appeal should be dismissed. (at p303)

WINDEYER J. Mr. Laurie said, fairly and forcefully, all that could be said in support of this appeal: but the law is too clear, and the facts too strong, to admit of any doubt that the appellant was rightly convicted of the offence charged. I therefore agree that the appeal be dismissed. As I concur generally in the reasons for this course given in the judgments of other members of the Court, I can confine my remarks to some aspects only of the case. (at p303)

2. Whether failure to comply with the requirements of a call-up notice is an offence of absolute liability or involves mens rea seems to me to be in this case more a matter of description than of substance. The implications of the word "fail" do introduce a mental element; for a man cannot be said to have failed to present himself at an appointed time at an appointed place unless he knowingly and wilfully abstained from doing so. If he never had the notice to attend, or if he were precluded from attending by some events outside his control, he would not I think be guilty of failing to do so. But it is only in that sense that mens rea is an element in guilt under s. 51. Apart from that, the offence can be appropriately called one of absolute liability: see for recent examples of cases of absolute liability in England with discussions of the principles involved Warner v. Metropolitan Police Commissioner (1969) 2 AC 256 ; Reg. v. Salter (1968) 2 QB 793 . Nevertheless, if by an honest mistake the recipient of a notice thought that he was not required to obey it or had been excused from doing so, I am prepared to accept the view that his not doing so could be excusable - or at most a venial offence, not to be visited with severity if having learnt of his mistake he then shewed himself ready and willing to render the service the law requires. But this case is far removed from that. (at p304)

3. The evidence before the magistrate did not shew that the appellant was honestly mistaken as to any relevant fact. He thought, and was advised, that he could take advantage of another man's mistake. By the mistake of a court officer he had been sent a wrong document. He, and those then advising him (not the senior counsel who appeared for him in this Court), were told that it had been sent in error; but he nevertheless hoped and his advisers told him that he could make use of it for his purposes. This specious idea, which was called in the argument an honest and reasonable mistake, was not the matter on which when he was charged he sought to rely. When the information was read to him and he was asked to plead, he said: "I have previously been proceeded against in respect of the alleged offence: I regard the present information as an abuse of process of the court: I object to pleading." But that an earlier information had been withdrawn by the Crown did not, in the circumstances, amount to an acquittal. It was no bar at all to the magistrate proceeding on the information before him. He did so, hearing evidence and argument on both sides including the appellant's evidence as to his belief in the effect of the document he had been sent. At the end the appellant was convicted of an offence under s. 51. (at p304)

4. The appellant is now in gaol. He is not there because he did not comply with the call-up notice, or because he had made an honest mistake. He is in gaol because, after having been disillusioned of any mistake, he said he would not undertake the duties the law required of him. The magistrate was then obliged to sentence him to two years imprisonment, being the period of military service for which he was liable according to law, and which he refused to render. I agree that the magistrate had no option to award any lesser sentence. He was bound by the provisions of s. 51, which are obviously designed to be compulsive rather than punitive. (at p304)

5. A suggestion was tentatively made to us that we could on this appeal consider whether or not the appellant should have been exempted from military service on conscientious grounds. This proposition was not persisted in. It obviously could not be sustained. The appellant had not sought to appeal to a court of review from the refusal of his application for exemption. Moreover, even if it were open to us to consider whether he is entitled under the provisions of the National Service Act to exemption on conscientious grounds, it is apparent that he is not. In the proceedings from which this appeal comes his counsel had said, with his assent, that he was willing to join the Army and to undergo "basic training". This expression was, I take it, used with the meaning it has in military parlance today, as the stage of recruit training before "corps training" which is the training of the recruit for the arm or branch of the Army in which he is to serve, armour, artillery, engineers, infantry or so forth. A man who is willing, as the appellant says he is, to be trained in combatant duties, in what he called "the martial arts", as a member of the Army and subject to military law, cannot be - within the meaning of s. 29A of the Act - "a person whose conscientious beliefs do not allow him to engage in any form of military service". (at p305)

6. The appellant's real unwillingness is not to all forms of military service. It is to being required to take any part in, or in aid of, active military operations now in progress abroad. I understand this attitude. I recognize it as one which can be conscientiously based. But the sincere scruples to which it can give rise do not give any right to exemption from the obligations which the Act imposes or to any qualification of them. A man who under the Act is obliged to serve cannot, with impunity, refuse to do so, leaving the duty to others who are law-abiding and dutiful. Nor can a man on his enlistment pursuant to the Act make a bargain with the Commonwealth as to the orders he will, as a soldier, obey or the places in which he will serve. (at p305)

7. The proposition that the appellant should have been tried by a jury cannot be sustained in law. It may be pertinent to add that any jury who were properly instructed and obedient to their oaths must, on the facts before us, have found the appellant guilty, as the magistrate did, of failing to obey the notice calling him up for service. (at p305)

8. I would dismiss the appeal. (at p305)

OWEN J. This appeal is brought against the conviction of and the sentence imposed upon the appellant on 14th October 1968 by a court of summary jurisdiction exercising federal jurisdiction under the National Service Act 1951-1966 (the Principal Act) as amended by the National Service Act 1968 (which came into force on 24th June 1968), upon an information laid by the respondent charging that the appellant, being a person upon whom a notice had been served under s. 26 of the Act, had, contrary to s. 51 (1) of the Act, failed to comply with the requirements of the notice, namely to present himself to the Officer-in-Charge at the Engineers' Training Depot, Swan Street, Melbourne on 17th July 1968 at 8 a.m. (at p306)

2. Before dealing with the submissions made on behalf of the appellant I have thought it desirable to give an outline of some of the provisions of the Principal Act, as amended in 1968, which bear upon the questions which were debated before us and of some of the circumstances which led up to and followed upon the service of the call-up notice upon the appellant with which, it was alleged, he had failed to comply. (at p306)

3. Part II of the Act, which includes ss. 10 to 18, contains provisions enabling the Minister, by notice published in the Gazette, to require all male persons, with certain exceptions not here material, who have attained the age of nineteen years to register for the purposes of national service and the persons to whom any such notice applies are required to register. Section 25 provides, inter alia, that a person who is registered or required to register under the Act, who has attained the age of twenty years, who is not exempt from liability to render service under the Act and who has not attained the age of twenty-six years shall be liable to render service as required by the Act. By s. 26 (1) the Secretary (who is defined to mean the Secretary to the Department of Labour and National Service) may serve on a person liable to render service under the Act a notice calling up that person for service with the Military Forces of the Commonwealth. The call-up notice is to state the time and place at which, and the authority to whom, the person served is to present himself for service (s. 26 (2)), and upon presenting himself for service he is deemed to have enlisted for service in the Regular Army Supplement and to have engaged to serve in that force for a period of two years (s. 27). Section 29A (1) provides that a person whose conscientious beliefs do not allow him to engage in any form of military service is, so long as he holds those beliefs, exempted from liability to render service under the Act and, by s. 29A (2), a person whose conscientious beliefs do not allow him to engage in military duties of a combatant nature but allow him to engage in military duties of a non-combatant nature is not, so long as he holds those beliefs, to be required to engage in duties of a combatant nature. Questions arising under these two subsections are to be heard and decided by a court of summary jurisdiction of a State or Territory of the Commonwealth constituted by a police, stipendiary or special magistrate (s. 29B), and an appeal against any such decision may be made to the "Courts of Review" mentioned in ss. 29C and 29CA. By reg. 34 made under the Act the court which hears an application for exemption based upon s. 29A and finds that the applicant holds a conscientious belief that does not allow him to engage in any form of military service is required to direct, "by order in accordance with Form 9" in the Schedule to the Regulations, that he be registered as a person exempt from liability to render service under the Act. If the finding is that the applicant holds a conscientious belief that does not allow him to engage in military duties of a combatant nature but will allow him to engage in military duties of a noncombatant nature, the court is required to direct, "by order in accordance with Form 10", that he be registered as a person who is required to engage in duties of a non-combatant nature only; and if neither such finding is made the court is to make an order "in accordance with Form 11" dismissing the application. By reg. 36 the Clerk of the Court is required, within seven days after the making of an order, to forward a copy of it to the applicant and to the Registrar. (at p307)

4. Section 23 of the Act of 1968 repealed s. 51 of the Principal Act and inserted in its stead a new s. 51. The new section, which is the one with which the present case is mainly concerned, is in these terms:

"51. (1) Where a notice has, whether before or after the
commencement of the National Service Act 1968, been served
on a person under section twenty-six of this Act and the person
fails after the commencement of that Act to comply with the
requirements of the notice, the person is guilty of an offence
punishable, upon conviction, in accordance with the next
succeeding sub-section.
(2) Where a person is convicted of an offence against the last
preceding sub-section -
(a) the person is, subject to paragraph (c) of this
sub-section, liable to a fine not exceeding Two
hundred dollars;
(b) the court shall, whether or not a fine is imposed on the
person, ask the person whether he is willing to enter
forthwith into a recognizance, to the satisfaction of the
court, that he will comply with the requirements of
any notice that is subsequently served on him under
section twenty-six of this Act; and
(c) if the person does not forthwith enter into such a
recognizance to the satisfaction of the court, the court
shall sentence him to imprisonment in respect of the
offence for a period equal to the period of service that
he is liable to render under this Act in the Regular
Army Supplement but, in that case, any order of the
court imposing a fine on him ceases to have effect.
(3) A person who has entered into a recognizance under the
last preceding sub-section but does not comply with a condition
specified in the recognizance is guilty of an offence and, upon
conviction, shall be sentenced to imprisonment for a period
equal to the period of service that he is liable to render under
this Act in the Regular Army Supplement.
(4) An offence against this section is punishable on summary
conviction and not otherwise.
. . . . . . ."

Sub-section (5) is not material in the present case and need not be set out. (at p308)

5. It appears that in January 1967 the appellant became registered under the Act. He then applied to be exempted from liability to render service on the ground that he had conscientious objections to engaging in military service and his application was heard by a stipendiary magistrate and dismissed on 2nd November 1967. His Worship gave reasons for his decision in open court, the appellant and his legal advisers being present, and ended by saying, following form 11 in the Schedule to the Regulations, "I therefore find that the applicant does not hold a conscientious belief that does not allow him to undertake any military duties of a combatant or non-combatant nature and I accordingly dismiss the application". An entry in the court register was made to this effect and was signed by the learned magistrate on 3rd November. On the previous day, however, the Clerk of the Court, by error, had forwarded to the appellant a document in the following form:

" COMMONWEALTH OF AUSTRALIA Form 9
National Service Act

ORDER OF EXEMPTION FROM LIABILITY TO RENDER SERVICE
ON THE GROUND OF CONSCIENTIOUS BELIEF

2051237

Upon hearing the application of John Francis ZARB of 429
Gaffney Street, Pascoe Vale South, 3044 Builder's Labourer
I find that he holds a conscientious belief that does not allow
him to engage in any form of military service and that he is,
by virtue of the provisions of section 29A of the National Service
Act, exempt from liability to render service under that Act.

Dated this 2nd day of November 1967

W. J. CUTHILL
STIPENDIARY MAGISTRATE
COURT OF PETTY SESSIONS,

MELBOURNE"

The name of the magistrate was typed in but the original of the document had not been signed by him and in fact he had not made and never did make such an order. On the following day, 3rd November, the Clerk of the Court, having discovered the mistake that had been made, lost no time in taking steps to correct it. He immediately telephoned the appellant's solicitors and told them what had happened. He said that he would send them "a proper copy order" and asked for the appellant's telephone number so that he might tell him what had occurred. The solicitors, however, said "not to bother". Later in the day the Clerk posted to the appellant a letter enclosing a copy of the order dismissing the appellant's application for registration as a conscientious objector and expressing regret for the mistake that had been made. (at p309)

6. Shortly after the Clerk of the Court had told the appellant and his solicitors of the mistake that had occurred and a copy of the order actually made by the magistrate had been received by them, junior counsel's opinion was sought by the appellant and on 10th November 1967 it was given. For reasons which will later appear a copy of this opinion is before us. Although that counsel had appeared for the appellant on the application for exemption and had been present in court on 2nd November when the magistrate had announced his decision, and although he knew also that the Clerk of the Court had informed the appellant's solicitors and the appellant that the document purporting to be a copy of the order of the court was not a copy of the order actually made but had been sent by mistake, he assumed, for the purposes of his opinion, that the magistrate had in fact made and signed an order in the form of the document which had been sent to the appellant on 2nd November and had later made and signed a second order dismissing the application. I fail to understand the reasoning which led him to take to be the fact that which I would have thought a person in his position must have realized was not the fact. In the result, however, he advised that the appellant was exempt from military service and suggested that a letter be sent to the Clerk of the Court in these terms:

"We refer to your letter dated 3rd November 1967, to our
client Mr. J. F. Zarb.
Counsel has advised that the form 9 order was effective to
exempt our client from military service and that the order may
only be reversed on appeal.
Our client will therefore retain his copy of the form 9 order
but herewith returns the form 11 document.
We have minuted a copy of this letter to the Deputy
Commonwealth Crown Solicitor.
Yours faithfully,
etc."

A letter to this effect appears to have been sent and on 17th November 1967 the Clerk of the Court wrote to the appellant's solicitors a letter in which he said:

". . .

Due to a clerical error an incorrect form was forwarded in
the first instance. Our file contains the original order of
dismissal, signed by the magistrate and this order is the one
which binds the applicant.
The applicant is quite well aware of the court's decision in
this matter and I would ask your co-operation in advising the
applicant of his position."

In the light of these facts it seems to me to be incredible that, at this stage at least, the appellant or his advisers could have believed that an order exempting the appellant from liability to render service had been made. (at p310)

7. On 4th July 1968 an officer of the Commonwealth Police served upon the appellant a notice dated 3rd July 1968 calling him up for national service with the Military Forces of the Commonwealth and requiring him to present himself to the Officer-in-Charge at the Engineers' Training Depot, Swan Street, Melbourne, on 17th July 1968 at 8 a.m. He did not comply with the requirements of the notice and on 1st October 1968 the information upon which he was convicted was laid. (at p310)

8. When the case came on to be heard on 14th October a number of matters were put forward by counsel then appearing for the appellant. Two of them only need be mentioned. One was that the call-up notice of 3rd July had not been served in accordance with s. 26 (1) because it had not been served personally by the Secretary to the Department of Labour and National Service. This objection was rejected by the magistrate. The other matter was a contention that the appellant had not failed to comply with the notice because he had, at the date when the notice required him to present himself for service, namely 17th July 1968, held an honest belief based upon reasonable grounds in the existence of a state of facts which, if they had existed, would have meant that s. 51 had no application to his case. The submission was no doubt based upon cases such as Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100 and Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 and in support of it the appellant gave evidence that, having read his counsel's opinion in the previous November, he believed that he was exempt from service under the Act and that this was the reason why he had not complied with the call-up notice. In cross-examination, however, he said that the basis for his belief was that he was not satisfied with the judgment of the magistrate who had heard his application for exemption because "his reasons were inconsistent and contradictory" and that he considered that "the decision was unfair". He agreed that he had heard the magistrate dismiss his application in open court but said that he thought that "the form 9 was the correct order". This referred to the form of order which had mistakenly been sent to him. He said also that he had learnt for the first time during the course of the proceedings upon the information that no order of exemption had been made. In support of this suggested defence, counsel's opinion was tendered in evidence but was rejected by the learned magistrate. (at p311)

9. The learned magistrate refused to believe that the appellant had an honest and reasonable belief that he was exempt from service and convicted him. He then asked the appellant, pursuant to s. 51 (2) (b), whether he was willing to enter into a recognizance that he would comply with the requirements of any call-up notice that might subsequently be served upon him and, after some discussion, the appellant refused to do so. He was thereupon sentenced to two years imprisonment, that being a period equal to the period of service that he was liable to render under the Act in the Regular Army Supplement. (at p311)

10. Before this Court senior counsel who appeared for the appellant put a number of submissions but, very rightly in my opinion, relied only on some of the matters set out in the notice of appeal. Although in the final result I am of opinion that none of his arguments can be accepted I think it right to say that he put his points in an able and responsible fashion. One of the matters raised by him was directed to the constitutional validity of some unspecified provisions of the National Service Act and the Defence Act but, after some debate, he said very frankly and properly that he did not feel that he could press the point. He made, however, five submissions. First that the notice of call-up was not served upon the appellant in accordance with the Act. Section 26 of the Act, he contended, required that such a notice be served personally by the Secretary to the Department of Labour and National Service or by his delegate and that there was no evidence that the police officer who in fact served the document was such a delegate. I think it is impossible to attribute to the Parliament an intention that, except where service is made by post under s. 60, the Secretary must himself or by a delegate appointed under the Act serve all call-up notices. There is, in my opinion, a valid service if the Secretary causes such a notice to be received by the person to whom it is addressed. Next it was submitted that the magistrate should have found that the appellant honestly believed upon reasonable grounds that he was a person who was exempted from liability to render service and that this would afford an answer to the charge of failing to comply with the call-up notice. Further it was said that the opinion given by counsel in November 1967 should have been admitted in evidence and, if admitted, would have added force to the appellant's evidence. I do not think it necessary to decide whether in a prosecution for the offence created by s. 51, an issue such as was raised is a relevant one. The learned magistrate was plainly entitled to refuse to believe that the appellant held an honest belief that he was exempt from service under the Act and I have no hesitation in saying not only that the magistrate was entitled to reach that conclusion but that his finding was correct. I can find nothing in counsel's opinion, assuming it to have been admissible, which could have led to a different result. A further argument was put that the offence created by s. 51 was of such a serious nature that the Parliament could not make it triable summarily, as it purported to have done by s. 51 (4) and we were referred to s. 80 of the Constitution. I am unable to agree with this submission and it is sufficient to refer in this connexion to the decision of this Court in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128 . Finally it was said that the magistrate fell into error in thinking, as he plainly did, that the only sentence of imprisonment that he could impose in the present case was one of two years. Section 20 of the Commonwealth Crimes Act gave him, it was contended, a discretion which might be exercised in the case of a conviction for a breach of s. 51 (1). I agree with and do not wish to add anything to what has been said on this point by the Chief Justice, whose reasons I have had the opportunity of reading. (at p312)

11. I would dismiss the appeal. (at p312)

ORDER

Appeal dismissed with costs.