Messina v Bridie [1966] HCA 20

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Messina v Bridie [1966] HCA 20

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 6 Barwick C.J.

The respondent was charged and tried at Quarter Sessions at Sydney with assault of the appellant. He was acquitted. An information by the appellant in respect of the same assault which had not been proceeded with pending the outcome of the trial at Quarter Sessions was brought on for hearing before a stipendiary magistrate after the respondent had been acquitted.

Upon being asked to state his defences, the respondent raised in documentary form the defence of autrefois acquit and orally the defence of not guilty. The police prosecutor who appeared on the hearing conceded that the respondent had been acquitted of the same offence, and accordingly the magistrate, as the papers show, held that the respondent's plea of autrefois acquit was sustained and dismissed the information.

Subsequently, upon the request of the respondent for a certificate of dismissal which was assumed in the Supreme Court to have been a request for a certificate under s. 498 of the Crimes Act, 1900 N.S.W., a certificate of dismissal was signed by the magistrate and delivered to the respondent. That certificate, which has been produced to this Court, is on a printed form and follows precisely the terms of Form S in the Second Schedule to the Justices Act, 1902-1958 N.S.W., that form being the form prescribed in respect of a certificate of dismissal issued pursuant to s. 86 of the Justices Act.

The appellant has commenced an action at law in the Supreme Court of New South Wales against the respondent for damages for assault, being the same assault as that in respect of which the respondent had been tried and acquitted and in respect of which the magistrate dismissed the information. The respondent has pleaded in the action the existence of a certificate of dismissal under s. 498 of the Crimes Act. That section is in the following terms: "If, on the hearing of any case of assault under sections four hundred and ninety-three to four hundred and ninety-six both inclusive upon the merits, the Justices deem the offence not to be proved, or find the assault to have been justified, or so trifling as not to call for punishment, and accordingly dismiss the complaint, they shall forthwith make out a certificate of such dismissal, and deliver the same to the defendant."