Sutherland v R [1934] HCA 59

356 HIGH COURT (1934,

{HIGH COURT OF AUSTRALIA.]

SUTHERLAND . : i : ¥ 3 . > APPLICANTS AND

THE KING . " fs é 4 5 F . Responvenr.

.

ON APPEAL FROM THE CENTRAL COURT OF THE TERRITORY OF NEW GUINEA.

H.C. or A. Criminal Law and Procedure—Trial by jury—Territory of New Guinea—Crimin

1934, Procedure Ordinance 1889 (British New Guinea) (No. 11 of 1889), cl. 21—Laus aa Repeal and Adopting Ordinance 1921 (N.G@.) (No. 1 of 1921)—Judiciary Ordinance SypNey, 1921 (N.G@.) (No. 3 of 1921)—The Criminal Code (Q.) (63 Vict. No. 9), sec. 604. Dec. 14, 17. er By the Laws Repeal and Adopting Ordinance 1921 (N.G.) clause 21 of the ant DitaeSy, Criminal Procedure Ordinance 1889 of British New Guinea (Papua) is made

applicable to the Territory of New Guinea and excludes trial by jury in that Territory. :

Appxication for special leave to appeal from the Central Court of New Guinea. '

Reginald James Vivian Sutherland was tried before a Judge without a jury in the Supreme Court of the Territory of New Guinea and was found guilty on two charges of stealing as a servant certain gold specimens, the property of his employer. He was sentenced on the first count to three months' imprisonment with hard labour, and on the second count to four years' imprisonment with hard labour, concurrent with the sentence on the first count.

From these convictions and sentences Sutherland now applied for special leave to appeal to the High Court. The principal ground that he was entitled to be tried before a jury. *

Further material facts appear in the judgments hereunder.

62 CLR.) OF AUSTRALIA.

@ Sullivan, for the applicant. There is not any evidence directed to the value of the gold specimens, or of the gold amalgam said to have been stolen. The evidence as to the ownership of the gold, and that it had been stolen, is insufficient and inconclusive (Trainer vy. The King (1) )- _ {Dixon J. referred to Schiffmann v. The King (2).] _ The evidence is equally consistent with the applicant's innocence -as with his guilt (Peacock v. The King (3) ). As the applicant was not warned beforehand, statements relating to the gold, made by him to the police officers, are inadmissible (R. v. Currie (4); Phipson on Evidence, 7th ed. (1930), pp. 255-258). (Drxon J. referred to Ibrahim v. The King (5).} The applicant was not tried before a jury as was his right under the law in force in the Territory of New Guinea. The Laws Repeal und Adopting Ordinance 1921 (N.G.) made applicable to New Guinea the Queensland Criminal Code; (b) the Criminal Procedure Ordinance 1889, of Papua ; and (c) the common law of England. {Starke J. referred to Jolley v. Mainka (6).} Clause 21 of the Criminal Procedure Ordinance, which provides it trials shall be taken by the chief magistrate alone, was not capable of being applied to New Guinea in 1921, because there was