Community Law Resource Group

R v Kidman [1915] HCA 58; (1915) 20 CLR 425 (16 September 1915)

Griffith C.J., Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

ON s 13 and 15F Crimes Act 1914 ( Cth)

Griffith C.J.

When in 1901 the Australian Commonwealth was formed, this law continued to be the law applicable to the rights and prerogatives of the Sovereign as head of the States as before, subject to any such local repeal. But, so far as regards the Sovereign as head of the Commonwealth, the current which had been temporarily diverted into six parallel streams coalesced, and in that capacity he succeeded as head of the Commonwealth to the rights which he had had as head of the Colonies. It is not necessary to speculate as to what would have been the effect of a positive law passed in any of the Colonies making it lawful, e.g., to defraud or conspire to defraud the Colony, for no such law was passed. I entertain no doubt that it was an offence at common law to conspire to defraud the King as head of the Realm, that on the settlement of Australia that part of the common law became part of the law of Australia, that on the establishment of the several Colonies it became an offence to conspire to defraud the King as head of the Colony, and that on the establishment of the Commonwealth the same law made it an offence to conspire to defraud the Sovereign as head of the Commonwealth. Such a law, or to put it in other words, such a right to protection, seems, indeed, to be an essential attribute to the notion of sovereignty. I have, therefore, no difficulty in holding that the indictment in this case discloses an offence against the common law of Australia.

In my opinion the power conferred by pl. XXXIX. extends to enacting in the form of a Statute the unwritten law of the Commonwealth applicable to the execution of its powers. Such a law would in effect be declaratory only (compare R. v. Munslow[4]), and any provision contained in it with reference to the Courts in which the offence was to be prosecuted would be in the nature of a law of procedure. A law of procedure is always construed as retrospective in its operation without express words to that effect. I offer no opinion on the question whether if the Statute imposed a greater punishment than that to which the offender was liable at common law it would be valid so far as regards the excess.

Isaacs J.

It has been urged, however, that an offence at common law is not a Commonwealth offence—that is, it is not an offence against the King in right of his Commonwealth, but against the King in right of his State in the place where the offence was committed. It is inconceivable that the Commonwealth—which, within its own sphere of power, is supreme—can be left dependent for the effective exercise of its functions upon the permissive action of any State or all of them. The Commonwealth carries with it—except where expressly prohibited—all necessary powers to protect itself and punish those who endeavour to obstruct it. The common law of England was brought to Australia by the first settlers, and remains, as the heritage of all who dwell upon the soil of this continent, in full force and operation, except so far as it has in any portion of the land been modified by a competent Legislature. For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written. The necessary implication of unrestrictable right to perform its functions as a sovereign power—because in law it is the King who acts—carries with it the corollary that obstruction to the King in the exercise of his Commonwealth powers is, at common law, an offence with reference to the Constitution, and not with reference to any State law or the State Constitution. It is entirely outside the domain of the States. It was forcibly stated by Miller J., when delivering the opinion of the Court in Neagle’s Case[11], that “there is a peace of the United States.” So here, there is a peace of the Commonwealth, not because there is a special common law of the Commonwealth, but because the common law of Australia recognizes the peace of the King in relation to his Commonwealth, by virtue of the Constitution, just as it recognizes the peace of the King in relation to each separate State. The idea was well expressed in the Western Union Telegraph Co. Case[12] in these words:—”There is no body of federal common law separate and distinct from the common law existing in the several States in the sense that there is a body of Statute law enacted by Congress separate and distinct from the body of Statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States; and that the countless multitude of inter-State commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the Statutes of Congress.” Mutatis mutandis, those words are applicable to Australia. Parke B. said, in his observations on the codification of the criminal law, “the rules of the common law have the incalculable advantage of being capable of application to new combinations of circumstances perpetually occurring” (see Brailsford’s Case[13]).

If, then, by the common law, as applied to the new fact or combination, in this case the sovereignty created by the Constitution Act, which the King exercises by new representatives in right of the new Commonwealth, it appears that any person in Australia has obstructed or taken any step towards obstructing His Majesty, the Commonwealth, as representing the King in that sovereignty, has a justiciable matter of complaint—a matter capable of judicial solution, according to a settled legal standard. It becomes then a question of curial jurisdiction to entertain that matter. Sec. 75 (III.) says that the High Court of Australia shall have original jurisdiction in all matters wherein the Commonwealth is a party, and, therefore, in such a matter as I have predicated. All that remains is to see whether in a given case the Commonwealth is properly represented. Unless some competent law alters the common law the King in such a cause is properly represented by his Attorney-General—which, of course, means the Attorney-General of the Commonwealth. In Ex parte Crawshay v. Langley[14] Blackburn J. says “in a matter of an offence against the State, the proper officer to prosecute is the Attorney-General.”

Certain requirements as to preliminary inquiry and commitment for trial, have been prescribed by sec. 68 of the Judiciary Act 1903-1914, but only as regards offences “against the laws of the Commonwealth.” The more recent Act No. 4 of 1915, however, by sec. 71A expressly provides that an indictment may be filed by the Attorney-General in the High Court without such examination or commitment where there is charged an indictable offence “against the laws of the Commonwealth.” Whatever that last phrase may mean in one place, it means the same in the other.

All that remains is to inquire whether the charge of a conspiracy to defraud the Commonwealth is the charge of an offence of the necessary nature. First, it is established law that the agreement to do an act itself is, in itself, an overt act in advancement of the intention to do the ultimate act agreed upon: Mulcahy v. The Queen[15]; Quinn v. Leathem[16], and R. v. Brailsford[17]. Then, as to defrauding the Commonwealth: “To defraud,” says Buckley L.J. in In re London and Globe Finance Corporation[18], “is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; … to defraud is by deceit to induce a course of action.” If the Act complained of is one which tends to produce a public mischief, it is an offence against the criminal law: R. v. Brailsford[19], and the cases there cited.

In the result the chain is complete: (1) jurisdiction in the Court to entertain a charge of crime at common law against the Commonwealth; (2) power in the Attorney-General to represent the Commonwealth; (3) power to indict without the preliminary examination; (4) the requisite character of the charge. To this should be added (5) that the charge is not limited in form to the Statute, and therefore will apply to both the Statute and the common law.

I ought to notice the suggestion that the enactment in the form of a declaratory Statute of what is the common law might be regarded as statutory law of the Commonwealth. I do not think so any more than if the Commonwealth were to pass in the same way a declaratory Act embodying an Imperial Statute. “The law,” would owe nothing of its force to Commonwealth enactment. There is no power that can be pointed to in the Constitution enabling the Parliament to enact the common law as such, or to modify the common law as such. What authority it possesses in this respect must arise out of some power contained in the Constitution. If in form enacting a punishment for a common law offence the punishment is declared to be less than that at common law, the Act could be taken as controlling the Courts as to the extent of punishment they could validly impose. It would be a fetter on the power of the Court’s discretion as to the sentence that could be passed. That might well be allowable, and to that extent be true law. But otherwise I think a mere declaration of the common law is of no inherent force however convenient it might be for purposes of reference. If, for instance, it incorrectly represented the common law, it would have to be disregarded, unless, of course, it proved to be the valid exercise of some specific power, express or implied.

For the reasons I have given, I agree that the motion to quash the indictment ought to be refused.