D v Cordwell [2002] TASSC 90

Magistrates - Jurisdiction and procedure generally - Procedure - Information and complaint - Form and sufficiency - Generally - Description of offence - No reference to section creating offence.

Pointon v Cox (1926) 136 LT 506, distinguished.

Thornley v Clegg [1982] Crim LR 523; Willing v Hollobone (No 2) (1975) 11 SASR 118; Wickham v Cole [1957] Tas SR 111; Ex parte Parkinson (1909) 9 SR(NSW) 174, referred to.

Justices Act 1959 (Tas), s31(1), (2).

Judgment Number: [2002] TASSC 90

1 On 13 June 2000 the respondent signed a complaint on oath, purportedly pursuant to the Justices Act 1959, alleging that the applicant "did on the 18th day of January 2000 at Hobart in Tasmania use a motor vehicle, namely, a 1985 Green Holden Commodore sedan station wagon registration number ED 5203, the property of Peter Michael INGRAM, without the consent of that person or some person in lawful charge of the vehicle and having authority to give that consent." That document did not include any reference to the legislative provision alleged to have been contravened by the applicant. On the day it was signed, a warrant was issued for his arrest. That warrant was executed some 12 months later. He appeared before a magistrate on 22 June 2001. There followed a series of appearances before the same magistrate, during which the applicant pleaded not guilty on two occasions. On 1 August 2002 his counsel submitted that the complaint should be dismissed for two reasons: (i) that, although the applicant was under the age of 18 years at the time of the alleged offence, the proceedings had not been brought or dealt with in the Youth Justice Division of the Magistrates Court; and (ii) that the complaint was a nullity because it did not refer to any legislative provision alleged to have been contravened. The learned magistrate refused to dismiss the complaint, and adjourned it for a hearing. The applicant has moved for the review of the learned magistrate's determination.

The Youth Justice Division of the Magistrates Court

2 The complaint of 18 June 2000 did not mention the Youth Justice Division of the Magistrates Court. Each time that the applicant appeared before a magistrate, the magistrate was apparently not sitting in the Youth Justice Division, or purporting to exercise the jurisdiction of the Youth Justice Division.

3 The Youth Justice Act 1997, s26(1), provides, "If a youth is to be charged with an offence, proceedings are to be commenced by complaint in accordance with section 27 of the Justices Act 1959." In s3, it is provided that, unless the contrary intention appears, "'complaint' has the same meaning as in the Justices Act 1959." There is nothing in s26 to require the complaint to be dealt with in any particular division of the Magistrates Court. The Youth Justice Division of the Magistrates Court is established by s159. That division is referred to throughout the Youth Justice Act as the "Court". It is given jurisdiction to hear and determine complaints against youths by s161(1), which includes the following:

(a) has jurisdiction to hear and determine a charge against a youth for an offence, and to deal with all related matters; and

(b) has jurisdiction to hear and determine proceedings under Part VII of the Justices Act 1959 where the defendant is a youth ...".

The word "youth" is defined in s3 as follows:

"'youth' means a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed, or is suspected of having committed, occurred."

4 The applicant was 17 years old at the time of the alleged offence. The Youth Justice Division had jurisdiction to hear and determine the charge, and to deal with all related matters, pursuant to s161(1)(a). However the Youth Justice Act does not contain any provision to the effect that only the Youth Justice Division has jurisdiction to hear and determine a charge against a youth, or to deal with related matters. In order to determine the consequences of the proceedings not having been instituted or conducted in the Youth Justice Division, it is necessary to look beyond the Youth Justice Act, and to consider the history and nature of the Magistrates Court and its divisions.

5 The Magistrates Court was created by the Magistrates Amendment Act 1989. Before that Act commenced, Tasmania had courts of petty sessions that were constituted by magistrates and by justices. Those courts of petty sessions were sessional courts, as distinct from standing courts. That is to say, they were constituted by magistrates or justices on the days that they sat, but had no continuing existence when the magistrates or justices constituting them were not sitting. The Magistrates Court, created by statutory amendments effected by the 1989 Act, is a standing court, and continues in existence when no magistrates are sitting.

6 The 1989 Act changed the name of the Magistrates Act 1987 to the Magistrates Court Act 1987. It also introduced the Magistrates Court Act, s3B(2), which provides as follows:

"(2) For the purposes of the organization and conduct of the business of the Magistrates Court, the Court shall exercise its jurisdictions in divisions, which may be created by or under this Act or any other Act and every proceeding in the Court shall be instituted, heard, and determined in one of those divisions."

7 Since the creation of the Magistrates Court and the enactment of s3B in 1989, new divisions of the Magistrates Court have been created by the Magistrates Court (Small Claims Division) Act 1989, the Magistrates Court (Civil Division) Act 1992, the Youth Justice Act, the Magistrates Court (Children's Division) Act 1998, and the Magistrates Court (Administrative Appeals Division) Act 2001. However I have been unable to find any Act or statutory rule creating a division of the Magistrates Court in which the ordinary business of the court, including motor vehicle stealing charges against adults, is dealt with.

8 Although the Magistrates Court Act, s3B(2) provided that divisions of the Magistrates Court "may be created ... under this Act", that Act does not provide for any mechanism for the creation of new divisions, nor does it expressly empower the Chief Magistrate or anyone else to create new divisions. Under s3B, the Chief Magistrate is empowered to give directions as to the division in which proceedings are to be instituted, heard and determined; to assign a magistrate to such division or divisions as he thinks fit; and to arrange for a magistrate to take part in the exercise of the jurisdiction in another division to which he or she has not been assigned. I do not think it follows that the Chief Magistrate must have the power to create a new division. The Governor has a general power to make regulations for the purposes of the Act pursuant to s18. Given that s3B(2) assumed that divisions could be created under the Act, I think the power to create them must be taken to have been conferred on the Governor by s18. However no regulations have been made creating a division of the Magistrates Court for the exercise of its ordinary jurisdiction whereby magistrates hear and determine complaints against adults in respect of simple offences.

9 If I am right in thinking that no division has been created for the exercise of the ordinary jurisdiction of the Magistrates Court, I do not think that is an impediment to the exercise of such jurisdiction. It is clear from s3B(2) that Parliament intended the Magistrates Court to exercise all of its jurisdictions in divisions. If no division has been created for the exercise of the court's ordinary jurisdiction, there has been a breach of a provision regulating the exercise of statutory powers. Whether such a breach results in the purported exercise of such powers being invalid or of no effect depends upon the purpose of the legislation, which has to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388 - 389. Having regard to those matters, I do not think Parliament can possibly have intended at the time of the 1989 amendments that the ordinary work of magistrates was to cease if a division of the Magistrates Court was not created for such work upon the commencement of the amendments.

10 In my view it follows that, even if no division of the Magistrates Court exists for the exercise of the ordinary jurisdiction of magistrates, magistrates are entitled to exercise their ordinary jurisdiction when not sitting in any particular division. Further, there is nothing in the Youth Justice Act or any other legislation requiring a complaint alleging an offence to have been committed by a youth to be dealt with in the Youth Justice Division. The Youth Justice Division has non-exclusive jurisdiction to hear and determine such a charge by virtue of s161(1)(a), but such a charge may be validly heard and determined by a magistrate exercising his or her ordinary jurisdiction and not sitting in any division.

11 The Police Offences Act 1935, s37B(1) provides as follows:

"Subject to subsection (2), a person who drives or uses a motor vehicle without the consent of the owner or registered operator of the vehicle or of some person who is lawfully in charge of the vehicle and has authority to give that consent is guilty of the offence of motor vehicle stealing."

12 The words of the complaint which I have quoted above allege all the ingredients of the offence of motor vehicle stealing created by that subsection. However the Justices Rules provide as follows in r15:

"A complaint shall include a specific reference to the section of the Act or the particular regulation, by-law, or other provision alleged to be contravened."

13 Except for the omission of any reference to the section allegedly contravened, the complaint signed by the respondent complied with the requirements of the Justices Act. In accordance with the Justices Rules, r3(2), it accorded with Form 1A in Sch1 to those Rules. The omission of a reference to the section contravened was a defect or irregularity. In order to determine the consequences of that defect or irregularity, it is necessary to have regard to the Justices Act, ss30 and 31, which include the following:

"30 - (1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it -

(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and

(b) contains such particulars as will give reasonable information of the nature of the matter complained of.

31 - (1) An objection shall not be taken or allowed to a complaint in respect of -

(a) an alleged defect therein, in substance or in form; or

(b) a variance between it and the evidence in support thereof.

(2) Notwithstanding the provisions of subsection (1), where -

(a) a complaint fails to disclose an offence or matter of complaint; or

(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection -

the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.

(3) If it appears to the justices that the complaint -

(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect -

the justices may amend the complaint upon such terms as may be just."

14 The complaint described the matter of complaint in ordinary language in accordance with s30(1)(a). It contained sufficient particulars to give reasonable information of the nature of the matter complained of, as required by s30(1)(b). Only r15 had been contravened. The contravention of that rule amounted to a defect either in substance or in form within the meaning of s31(1)(a). At common law that defect might have made the complaint a nullity, but by virtue of s31(1), no objection was to be taken or allowed in respect of it, subject to the provisions of s31(2). This was not a case in which the complaint failed to disclose an offence or matter of complaint, within the meaning of s31(2)(a), since all the ingredients of the offence of motor vehicle stealing were disclosed. Therefore, when the applicant's counsel submitted to the magistrate that the complaint should be dismissed as a result of the section allegedly contravened not having been specified in the complaint the critical question was whether, within the meaning of s31(2)(b), the defendant appeared to have been prejudiced by the defect, ie, by the failure to specify the section allegedly contravened. He was represented by competent and experienced counsel who would have realised that it was s37B(1) that was allegedly contravened. There was therefore no basis for the learned magistrate to take the view that the defendant appeared to have been prejudiced by that defect. The learned magistrate was therefore right not to dismiss the complaint. This conclusion is supported by an analysis of the authorities to which counsel referred me.

15 Counsel for the applicant relied on Pointon v Cox (1926) 136 LT 506, in which Lord Hewart CJ, Salter and Talbot JJ affirmed the quashing of a conviction on the basis that an information was bad on its face because it had not set out the legislative provision allegedly contravened. In my view that case must be distinguished because the application of the Justices Act, s31(1), leads to the opposite result. In England now the Magistrates' Courts Act 1980, s123, allows justices to proceed upon a defective information if the defect is not material and not capable of leading to injustice. Thus an information omitting any reference to the section allegedly contravened has been held not to be void ab initio, and to be capable of amendment: Thornley v Clegg [1982] Crim LR 523.

16 In Willing v Hollobone (No 2) (1975) 11 SASR 118, the Full Court of the Supreme Court of South Australia considered the validity of a complaint made in a court of summary jurisdiction. The Justices Act 1921 - 1974 (SA), s22a(2), required the complaint to contain a reference to the section of the statute creating the alleged offence. The complaint in question contained no such reference. It was held that the failure to comply with s22a(2) was a mere irregularity that did not render the proceedings a legal nullity.

17 Legislative provisions to the effect of the present ss30 and 31 were first introduced in Tasmania by the Justices Procedure Act 1954. It amended the Justices Procedure Act 1919 by introducing, as ss24A and 27 thereof, provisions worded similarly to the present ss30 and 31. Burbury CJ spoke of the new provisions in Wickham v Cole [1957] Tas SR 111 at 114 as follows:

"The procedural amendments ... are designed to avoid the defeat of justice by unmeritorious technical objections to forms of complaint ... So long as it clearly appears from the complaint, as a matter of substance and ordinary language with what offence the defendant is charged and he is given proper particulars of the facts constituting the foundation of the charge the complaint will not be bad because of some minor omission or misstatement not capable of misleading a defendant as to the offence with which he is charged or otherwise prejudicing him in his defence. Section 24A and s27(3) (giving power to justices to amend the complaint even if it fails to disclose an offence) are designed to ensure that a charge will not be dismissed because it may be logically argued that due to some slip or clumsiness in drafting the complaint no offence in its entirety has been pleaded although it may be quite plain to everyone what offence is intended to be charged."

18 The Justices Act 1902 (NSW), s65(1), contains a provision in similar terms to our s31(1). It provides that no objection shall be taken or allowed to any information in respect of any alleged defect therein in substance or in form. In Ex parte Parkinson (1909) 9 SR(NSW) 174, it was argued that an information was bad for not alleging that the charge was laid under a particular by-law. Simpson ACJ, with whom Cohen and Pring JJ agreed, said:

"Even if it were necessary to allege the by-law, the omission to do so would constitute a defect either in substance or in form which would be cured by the operation of s65 of the Justices Act. Under the terms of that section, if the applicant were deceived or misled in any way, or hampered in his defence, it would have been the duty of the magistrate to grant him an adjournment if the had applied for it, but there is no suggestion that the applicant was prejudiced in any possible way."

19 Apart from Pointon v Cox, which has to be distinguished, the authorities that I have referred to all support the conclusion that, because of the provisions of the Justices Act, s31, the failure to specify the section allegedly contravened did not invalidate the complaint. It follows that the learned magistrate was right not to dismiss it, and to adjourn it for a hearing. I expect that hearing will be conducted in the Youth Justice Division. The motion to review is dismissed.