Isaacs v McKinnon [1949] HCA 64

High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Webb JJ. Isaacs v McKinnon [1949] HCA 64

ORDER Ormonde Lloyd Jones substituted for Archibald McKinnon as respondent. Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Latham C.J.

This is an appeal by Eskell Nathan Isaacs from a conviction by the Federal Court of Bankruptcy (Clyne J.) of the appellant for an offence against s. 20 (2) of the Crimes Act 1914-1946. The appellant had been convicted by the Court of Bankruptcy for offences against, first, s. 210 (3) (c) of the Bankruptcy Act 1924-1947 for that, being a bankrupt, he did dispose of otherwise than in the ordinary way of his trade, certain recorders which he obtained in February and March 1948 and did not pay for; and, secondly, against s. 212 (1) (a) for that, being a bankrupt, he did incur a debt on or about 28th January 1948 and in doing so obtained credit by means of fraud. The Court of Bankruptcy dealt with these offences against the Act upon a summary trial under s. 217 (1) (a) of the Act. The court then applied s. 20 (1) of the Crimes Act. This provision is in the following terms:—"If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence."

The Court directed that the bankrupt be released upon his entering into a recognizance to be of good behaviour for a period of five years, and on the further condition that he should during the period of five years pay to the Official Receiver "One hundred and sixty pounds (£160) a year by quarterly instalments on the Thirtieth day of June One thousand nine hundred and forty-nine and thereafter on or before the last day of each succeeding period of three months in each year during the aforesaid period of five years." The bankrupt paid £10 to the Official Receiver on 30th June 1949. He paid no further moneys. The Crimes Act, s. 20 (2), provides that if any person who has been released in pursuance of the section fails to comply with the conditions upon which he was released, he shall be guilty of an offence. The penalty provided is "Imprisonment for the period provided by law in respect of the offence of which he was previously convicted." Section 20 of the Crimes Act also provides:—"(3) The penalty provided by the last preceding sub-section may be imposed by the Court by which the offender was originally convicted or by any Court of Summary Jurisdiction before which he is brought. (4) In addition, the recognizance of any such person and those of his sureties shall be estreated, and any other security shall be enforced."