Bailey v Kelsey [1959] HCA 16

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Bailey v Kelsey [1959] HCA 16

ORDER Appeal dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

Mar. 25 Dixon C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

This is an appeal from an order of the Supreme Court of the Northern Territory. The order dismissed an application for a writ of habeas corpus ad subjiciendum directed to the Comptroller of Prisons and Keeper of the Gaol at Darwin. The application for the writ was made by the appellant who was a prisoner in the gaol. He was held under a committal by a magistrate made in purported pursuance of s. 5 of the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69). Part I of that Act relates to the return of a fugitive accused of an offence to which the Part applies committed in one part of the Queen's dominions when he is found in another part of Her Majesty's dominions. Section 5 forms a provision of Pt. I.

Sir Laurence Dunne, a metropolitan magistrate in London, had issued a warrant for the apprehension of the plaintiff on four charges of offences against s. 32 (1) of the Larceny Act 1916 (6 & 7 Geo. V. c. 50). Section 32 (1) of the Larceny Act deals with false pretences and amongst other things provides that a person who by any false pretence with intent to defraud obtains from any other person any money or valuable security shall be guilty of a misdemeanour and on conviction thereof liable to penal servitude for any term not exceeding five years. Section 9 of the Fugitive Offenders Act 1881 provides that Pt. I shall apply to the following offences, namely, to treason and piracy, and to every offence, whether called felony, misdemeanour, crime, or by any other name, which is for the time being punishable in the part of Her Majesty's dominions in which it was committed, either on indictment or information, by imprisonment with hard labour for a term of twelve months or more, or by any greater punishment. Then the section proceeds "and for the purposes of this section rigorous imprisonment, and any confinement in a prison combined with labour, by whatever name it is called, shall be deemed to be imprisonment with hard labour". If s. 32 (1) of the Larceny Act 1916 were unaffected by any later legislation, it would be clear enough that Pt. I of the Fugitive Offenders Act 1881 applied to the offences with which the appellant is charged under the warrant of Sir Laurence Dunne. For under the very terms of s. 32 they are punishable with penal servitude for a term not exceeding five years. But it is not unaffected by later legislation. On the contrary by s. 1 of the Criminal Justice Act 1948 (11 & 12 Geo. VI., c. 58) penal servitude was abolished as also were sentences by a court to imprisonment with hard labour. The appellant maintains that since that Act it is no longer true that any ordinary crime in England is punishable by imprisonment with hard labour for a term of twelve months or more or by any greater punishment. Accordingly he contends that Pt. I of the Fugitive Offenders Act 1881 is no longer applicable to the offences of false pretences with which he is charged under s. 32 of the Larceny Act 1916. This contention forms the foundation of his present appeal.