I am dealing with a summons for judicial review which has been filed in circumstances of urgency which I will explain. I order that the summons filed today may be returnable instanter and dealt with forthwith.
The matter concerns a conviction and sentence entered and passed in the Local Court in a matter involving a Commonwealth offence. Ms Debenham appears for the plaintiff, the Commonwealth Director of Public Prosecution ("CDPP"). Mr Phillippe appears for the first defendant, who is the person who is convicted and sentenced, and Mr Vasiliou appeared for the Local Court of New South Wales named as second defendant. Mr Vasiliou has been excused from further attendance. The purpose of his appearance was to indicate to the Court, in accordance with the usual convention, that the Local Court would file a submitting appearance save as to costs, which he undertook to do by close of business today.
Mr Parker was arrested on 3 September 2020 and charged with two offences. Sequence 1 is the Commonwealth offence of using a carriage service to access child abuse material contrary to s 474.22 of The Criminal Code appearing in the schedule to the Criminal Code Act 1995 (Cth). The second sequence was a State offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). Both charges were brought by the New South Wales Police and prosecuted by the New South Wales Police.
On 25 November 2020, in the Local Court at Hornsby, Mr Parker entered a plea of guilty to both charges and was sentenced for each by her Honour Magistrate McManus. In respect of the State offence, she imposed a fixed term of 3 months duration which expired on 2 January 2021. In respect of the Commonwealth offence, she imposed a concurrent sentence of imprisonment for a term of 14 months commencing on 3 September 2020 and expiring on 2 November 2021. Her Honour ordered that "execution of the sentence is partially suspended after serving a period of 7 months pursuant to paragraph 20(1)(b) of the Crimes Act 1914 (Cth)", upon the first defendant entering into a recognisance and subject to certain other conditions which I need not specify.
Commonwealth Director of Public Prosecutions v Parker [2021] NSWSC 10 | Case summary | Zoe
Mr Parker is aggrieved by the sentence in the Commonwealth matter and has appealed to the District Court under the provisions of the Crimes (Appeal and Review) Act 2001 (NSW). Given the escalation of the matter to the higher court, the carriage of the Commonwealth matter passed from the New South Wales Police to the Office of the Commonwealth Director of Public Prosecutions.
The matter was assigned to Ms Debenham on 4 January 2020. Ms Debenham is a solicitor employed by the CDPP as a Federal Prosecutor. It became apparent to Ms Debenham, upon inspecting the file, that in convicting and passing sentence upon Mr Parker for the Commonwealth offence the Local Court had acted in excess of its federal jurisdiction vested in it under the provisions of s 39 of the Judiciary Act 1903 (Cth). This is because, although certain Commonwealth indictable offences may be dealt with summarily under the Crimes Act 1914 (Cth), the offence of contravening s 474.22 of The Criminal Code may not because it carries a maximum penalty of a term of imprisonment of 16 years.
Section 4J(1) of the Crimes Act 1914 (Cth) provides, so far as is material for present purposes:
...an indictable offence...against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention applies, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction. (My emphasis.)
The Local Court is, of course, a court of summary jurisdiction.
I should say that other provisions of the Crimes Act 1914 (Cth) render an offence punishable by imprisonment for a period exceeding 12 months as prima facie indictable offences and an offence punishable by a period not exceeding 12 months as summary offences.
Ms Debenham, according to her affidavit, read in evidence in the proceedings without objection, raised the matter with Mr Phillippe who, as I have said, appears for Mr Parker, at the first available opportunity and he agreed with her legal analysis. With respect, so do I.
Mr Phillippe consents to an order in the nature of certiorari being made to quash the conviction and sentence, and an order in the nature of mandamus remitting the matter to the Local Court for determination according to law.
Although the exercise of the Court's supervisory jurisdiction is a matter of public law, the Court is empowered to exercise its powers by and with the consent of the parties. In Kovalev v The Minister for Immigration and Multicultural Affairs (1990) 100 FCR 323; [1999] FCA 557, French J (as the Chief Justice of Australia then was) said at [12] - [13]:
[12] … In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred.
[13] It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal.
Justice Beech-Jones of this Court was counsel in Kovalev but as a judge in Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505 at [3], said that even where the active contradictor consents, it is necessary for the Court to be satisfied that there was an error and to identify the error which vitiated the administrative decision under review.
I am of course here dealing not with the decision of an administrative decision-maker but with the decision of a judicial officer constituting a lower court. However, notwithstanding that consideration, and the consideration that this matter is concerned with the administration of the criminal law, I am of the view that the same principles apply. In any event, as I have indicated, I am also satisfied that Ms Debenham's legal analysis is correct and that by dealing with this matter summarily, having regard to the relevant provisions of the Crimes Act 1914 (Cth) that the Local Court exceeded its jurisdiction. Rather, the Court should have dealt with the matter in accordance with those provisions of the Criminal Procedure Act 1986 (NSW) concerning indictable offences in State jurisdiction, so far as applicable, in due course committing the matter for sentence, if Mr Parker adhered to his plea of guilty, to the District Court.
I should say the probable explanation for what occurred is, with no disrespect to the prosecutor, the carriage of the matter by the New South Wales Police. Doubtless, the relevant prosecutor overlooked the provisions of the Crimes Act, to which I have referred, and failed to draw them to the attention of the learned magistrate who did, as the parties asked her to do, and dealt with the matter by way of proceedings on sentence. With respect, her Honour is not to be criticised for that.
However, the parties cannot confer jurisdiction where it does not legally exist by acquiescence. The effect is that jurisdictional error has occurred, and the decision of the Local Court has been vitiated and must be set aside.
My orders are:
1. The summons that was filed today may be returnable instanter and dealt with forthwith;
2. An order in the nature of certiorari quashing the decision of her Honour Magistrate L McManus in matter no. 2020/256982 sequence 1 - the Commonwealth offence of using a carriage service to access child abuse material;
3. The conviction and sentence passed on 25 November 2020 are set aside; and
4. An order in the nature of mandamus remitting the matter to the charge list in the Local Court at the Downing Centre for mention on Friday 29 January 2021 to be dealt with according to law.
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Decision last updated: 15 January 2021