R v Loewenthal; Ex parte Blacklock [1974] HCA 36

High Court of Australia Barwick C.J. McTiernan, Menzies, Mason and Jacobs JJ. R v Loewenthal; Ex parte Blacklock [1974] HCA 36

ORDER Orders nisi for writs of prohibition and certiorari discharged.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 25 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared for delivery by my brothers Menzies and Mason. I agree with them that s. 29 of the Crimes Act Cth was intended to be an exhaustive provision as to damage being done to property belonging to the Commonwealth or to a public authority of the Commonwealth. Consequently, by virtue of s. 109 of the Constitution, s. 469 of the Criminal Code of Queensland was at all relevant times inoperative in relation to damage done to property of the Australian National Airlines Commission. Section 469 therefore was not within the operation of s. 4 (1) of the Commonwealth Places (Application of Laws) Act 1970 Cth, its provisions being inoperative in their application to Eagle Farm Aerodrome otherwise than by reason of s. 52 of the Constitution. I agree with my brothers' reasons for this conclusion. (See s. 4 (2).)

I also agree that the learned District Court judge did not lack jurisdiction to proceed upon the indictment which was before him. In my opinion, the indictment was not limited to a charge against the respondent for a breach of s. 469 of the Criminal Code: but in any case the District Court judge clearly had jurisdiction to amend the indictment.

I would discharge the orders nisi.

McTiernan J.

This cause consists of orders nisi for a writ of prohibition and a writ of certiorari respectively. Each order is directed to a judge of District Courts of the State of Queensland. He is the trial judge in criminal proceedings in a District Court of Queensland in which the party who is seeking the writs is the accused person. The stage reached in the proceedings, when the writs were applied for, was that the trial judge had overruled a demurrer to the indictment. The ground of the demurrer is that the indictment does not disclose a cognizable offence.