Opinion Number. 890



Key Legislation

CONSTITUTION, s. 80: JUDICIARY ACT 1903, ss. 30, 68 (1) (a), 71 A: HIGH COURT PROCEDURE ACT 1903, ss. 2, 6, 7: ACTS INTERPRETATION ACT 1904, s. 4: NORTHERN TERRITORY ACCEPTANCE ACT 1910, s. 7 (1): NORTHERN TERRITORY (ADMINISTRATION) ACT 1910, ss. 5, 12: CRIMES ACT 1914, ss. 3, 5, 12 (1). 29, 76: JUDICIARY ACT 1915. ss. 2. 3: HIGH COURT PROCEDURE ACT 1915, s. 2: ACT No. 31 of 1855 (S.A.), s. 7: ACT No. 6 of 1868 (S.A.), s. 10: NORTHERN TERRITORY JUSTICE ACT 1884 (S.A.), ss. 2, 3: SUPREME COURT ORDINANCE 1911 (N.T.), ss. 4, 9, 14, 15, 16, 17, 21, 23: JURY ORDINANCE 1912 (NT), s. 2; The Schedule

The Secretary, Department of Home and Territorie

The Secretary, Department of Home and Territories:

The following matter has been referred for advice by the Secretary of the Home and Territories Department:

On 17 December 1918, a disturbance occurred at Darwin, in the course of which the Administrator was thrown down, police constables and special constables disarmed and assaulted, and door and fence in Government House grounds were broken down, and Government House was invaded by a mob. It has been suggested that on account of popular feeling in Darwin it would be impossible to get an unprejudiced trial by a jury in that town if an indictment were laid for riot; and further that it might be better to lay a charge of assaulting the police in the execution of their duty, and that it would be desirable to change the venue from Darwin to some southern city. The following speci?c questions have been asked:

  1. Can charges arising out of the a?'ray be tried elsewhere than at Darwin ?
  2. What should be the nature of the charges ?

Under the Supreme Court Ordinance No. 9 of 1911, section 15, sittings of the Supreme Court of the Northern Territory may be held at places in the Northern Territory other than Darwin if the Administrator so directs. Section 16 provides who are liable to serve as jurors in that event, and the Jury Ordinance No. 7 of 1912 provides for the procedure of summoning them. Question (a) therefore can
be answered in the affirmative to this extent, that such charges can be tried elsewhere in the Territory than at Darwin. If this were suf?cient to meet the necessities of the case, question (b) could be answered by saying that any charge which was appropriate, and which the evidence would sustain, could be laid: assault, riot, wilfully and unlawfully damaging property, or wilfully obstructing or resisting a Commonwealth o?icer in the discharge of his duty, or as the case might be.

But the question of holding the trial outside the Territory altogether in some southern city is one of much greater di?iculty.

The Northern Territory Acceptance Act 1910, section 7(1), provides for the continuance of all laws in the Northern Territory, but that they might be altered or repealed by or under any law of the Commonwealth.

The Northern Territory (Administration) Act 1910, section 5, continues the State laws of South Australia 'subject to any Ordinance made by the Governor-General'. Section 12 provides that for the enforcement of all laws in force in the Territory the courts of South Australia shall—

. . . subject to any Ordinance made by the Governor-General—

  1. continue to have and exercise the jurisdiction in or in relation to the Territory which they had before the commencement of this Act; and
  2. have and exercise such jurisdiction as is conferred on them by Ordinance made by the Governor-General.

Under the South Australian laws continued, the position was this: Under No. 31 of 1855, section 7, the South Australian Supreme Court had the same jurisdiction and powers civil and criminal as the King's Bench, Common Pleas, and Exchequer. Under No. 6 of 1868 which established Circuit Courts, section 10 provided that the Supreme Court or any Judge thereof might change the venue of a trial from the district in which accused was committed to some other Circuit Court or to Adelaide. Act No. 311 of 1884, sections 2 and 3, provided that the law of South Australia, with certain specified exceptions, shall be deemed to have been the law of the Northern Territory so far as applicable, unless expressly excepted, and that future statutes should similarly apply. Therefore, apart from Ordinances, the desired change of venue might have been made.

The Supreme Court Ordinance No. 9 of 1911, establishing the Supreme Court of the Northern Territory, clothed that Court with all the powers of the Supreme Court and the Judges of South Australia (sections 4 and 9), provided for sittings at Darwin or other places as the Administrator directs (sections 14 and 15), provided a means by which offenders 'may be put on their trial' (section 17), provided an appeal to the Supreme Court of South Australia (section 21), and saved proceedings commenced prior to the Ordinance in Circuit Courts (section 23).

The Jury Ordinance No. 7 of 1912, section 2, provides that the Acts of South Australia specified in the Schedule shall 'cease to apply' to the Northern Territory, and both No. 6 of 1868 and No. 311 of 1884 are included, but No. 31 of 1855 is not.

Now, since No. 311 of 1884 was the Act which declared what law applied to the Northern Territory, and it now ceases to apply, it might be argued that the whole framework of South Australian law collapsed with it; but I do not think this is the correct construction. This Act was largely declaratory, I think, and in any case the South Australian law is continued by the Northern Territory Acceptance Act and Northern Territory (Administration) Act, although 'subject to any Ordinance made by the Governor-General'.

But even if some South Australian law survives, the Act No. 6 of 1868 with its express provision for change of venue to Adelaide has 'ceased to apply'.

It may be that as No. 31 of 1855 is not expressly made to cease, it still operates, and gives the Supreme Court of South Australia power to change the venue as a power possessed by the English courts; or that the Supreme Court of the Northern Territory has this power as being one of the powers possessed by the Supreme Court of South Australia at the date of the Supreme Court Ordinance No. 9 of 1911. Or it may be that although the Jury Ordinance modifies the applicability of South Australian law under section 5 of the Northern Territory (Administration) Act, so that the South Australian courts do not have jurisdiction by virtue of South Australian Acts being applicable, yet under section 12 of the Northern Territory (Administration) Act the courts of South Australia have jurisdiction as being one which they exercised before the passing of that Act. As, however, the continuation
of the jurisdiction of the South Australian courts under section 12 is also 'subject to any Ordinance made by the Governor-General', it would seem an artificial construction to hold that although the jurisdiction was taken away which existed by virtue of section 5, exactly the same jurisdiction remained by virtue of section 12. And, although the jurisdiction of the Supreme Court of South Australia is not expressly excluded, I think that the intention was to exclude it, and section 23 of the Supreme Court Ordinance, saving certain proceedings already commenced, seems to show that other proceedings were not intended to be commenced. I think the power to alter the venue with which the Supreme Court of the Northern Territory was endowed must be read in accordance with general principles of international law as one to be exercised within the jurisdiction of the Court, and that therefore it is not competent for either the Supreme Court of the Northern Territory, or the Supreme Court of South Australia, to order any charges arising out of the affray to be tried elsewhere than in the Northern Territory.

It might be argued that if charges were laid for offences against the laws of the Commonwealth under the Judiciary Act, sections 30 and 71 A, as amended by the Judiciary Act 1915, it would be possible to have the trial either in Melbourne as the Principal Registry, or in Adelaide as the Registry of the High Court nearest to the place in which the offences were committed and to the place of abode of accused.

In this respect regard must be had to the Constitution, section 80:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

If it were necessary to proceed on indictment, then, as Parliament has not prescribed any place for the trial of such offences 'not committed within any State' it would appear that it would not be possible to try them anywhere. It would appear that some provision on the subject might appropriately have been made in the Judiciary Act 1903 about sections 68 to 71 or sections 82 to 85, or in the High Court Procedure Act 1915. I think that in the High Court Procedure Act 1903 sections 6 and 7 refer to civil matters, for, although by section 2 'cause' includes criminal proceedings, the terms 'writs of summons', and 'party' are not apt with reference to criminal proceedings, and the new heading introduced by the 1915 Act emphasises the distinction.

Moreover, the only original criminal jurisdiction granted to the High Court under the Judiciary Act 1915 is in trials for indictable offences, and, as explained later, I think the only appropriate offences are not indictable; so the dilemma exists that if the offences charged are not indictable there is no original jurisdiction in the High Court, and if they are indictable, then, under the Constitution, section 80, there is no place prescribed for holding the trial.

Apart from trial by jury, it might be possible to sustain charges in summary proceedings before a Police Magistrate in the Territory under the Crimes Act 1914, section 76, for wilfully obstructing or resisting a Commonwealth officer while engaged in the discharge or attempted discharge of the duties of his office. As to this I think the definition in section 3 of 'Commonwealth officer' wide enough to include the Administrator, and possibly the police. Or a charge might be laid under section 29 for wilfully and unlawfully destroying or damaging property belonging to the Commonwealth, or under section 5 for counselling or being concerned in the commission of these offences. I think that section 12 (1) of the Crimes Act 1914 authorises proceeding summarily in these cases as I think the words 'other than indictable offences' must be read as meaning 'other than offences in this Act declared to be indictable offences', or at any rate I think that section 12 (1) is sufficient to show a 'contrary intention' within the Acts Interpretation Act 1904, section 4, for to hold that the offences not expressed to be indictable, but which may be punished by imprisonment for over six months, were indictable under the Interpretation Act, would make section 12 (1) practically futile, and would appear contrary to the scheme of the Crimes Act. The Judiciary Act 1903, section 68 (1) (a), gives the Police Magistrate jurisdiction in summary proceedings for offences against the laws of the Commonwealth. This would be one means of getting a trial by a tribunal independent of a prejudiced jury.

But if trial by jury is desired outside the Territory, I think the only safe course would be to amend the Jury Ordinance No. 7 of 1912, so that the power of the Supreme Court to order a change of venue to Adelaide would not be interfered with, and under the Northern Territory (Administrationj Act 1910, section 12 (b), confer on the South Australian courts jurisdiction to hear cases remitted from the Northern Territory for change of venue. If this were done, and charges laid under the law of the Territory introduced from South Australia, e.g. for assault, and not for offences against the laws of the Commonwealth, I think the desired end might be attained. Such amendments, being procedural, would in my opinion cover the trials for offences which were committed prior to the passing of the amendments (see Lemm v. Mitchell [1912] A.C. 400).

[Vol. 16, p. 72]

(1)This opinion is unsigned in the Opinion Book, but it is attributed to Mr Knowles.