MATTER : In the matter of an application under the Magistrates Court Act 2004 (WA) s 36 for a Review Order against Ms E A Hamilton, Stipendiary Magistrate of the Magistrates Court of Western Australia at Albany

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Procedure - 'Either way' offences - Trial on indictment or trial summarily - Stealing a motor vehicle and driving recklessly or dangerously - Criminal Code (WA), s 378(2) - Jurisdiction of courts

Criminal Procedure Act 2004 (WA), s 40, s 41

Magistrates Court Act 2004 (WA), s 36

The order made in the Magistrates Court at Albany on 28 July 2009 by which the first respondent was committed on one charge of stealing a motor vehicle and driving dangerously being charge AL 908/09 to the District Court of Western Australia at Albany for sentence be set aside

The prosecution be remitted to the Magistrates Court at Albany to be dealt with according to the law

Bounds v The Queen [2005] WASCA 1

Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136

Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

1 EM HEENAN J: For quite some time there have been differences of judicial opinion and practice between some magistrates, on the one hand, and some judges of the District Court of Western Australia (District Court), on the other hand, over whether or not a charge alleging an offence under s 378(2) of the Criminal Code (WA) - the charge of stealing a motor vehicle and driving that motor vehicle dangerously - is an indictable offence only or is an 'either way' offence. The view taken by the learned magistrate in this case, and apparently commonly taken by a number of magistrates dealing with such charges in the Magistrates Court is that it is an indictable offence only, therefore obliging a magistrate to commit the accused person for trial or sentence on the charge in the District Court without giving consideration to the provisions of s 5 of the Code as to whether or not circumstances exist which would result in the charge being dealt with summarily. Correspondingly, it is evident that there is a view prevalent among some judges of the District Court that such a charge is a charge for an 'either way' offence with the consequence that subject to the provisions of s 5 of the Code, it should be dealt with and determined in the Magistrates Court.

2 An inevitable but unsatisfactory consequence of the prevalence of these different views is that, in a disquieting number of instances in the past, magistrates have taken the approach that persons charged with that offence must be committed for trial or sentence in the District Court and have made corresponding orders for committal without considering whether or not, under s 5 of the Code, the charge should be dealt with summarily. Also, in the ensuing committals some judges at the District Court, when the person charged has come up on the committal, have taken the view that the charge is for an 'either way' offence and should be returned to the Magistrates Court for consideration to be given to the factors mentioned in s 5 of the Code. There have even been cases when, on the ensuing return of the person committed to the District Court to the Magistrates Court, questions have arisen over whether or not the person charged should yet again be committed to the District Court. The Director of Public Prosecutions for Western Australia, responsible for dealing with matters reaching the District Court, has taken the view that the time has come for this unseemly procedural ping-pong to stop and has brought the present application as a test case to establish the nature and character of a charge for an offence against s 378(2) of the Code.

3 This present application began as an ex parte application for an order for review made pursuant to O 56A of the Rules of the Supreme Court 1971 (WA). It was made in the name of the DPP and named the person charged with the offence, Luke Raymond Edward Peters (the first respondent), as the sole respondent. The application for the order to review was heard by me on 4 November 2009 and, at the request of the DPP, there was a supplementary hearing on 24 November 2009. I made orders and gave directions to the effect that the learned magistrate who had dealt with the charge should be joined as a party and that both respondents should each be served with the application, supporting affidavit and other papers, and be directed to satisfy this court why the order for committal of the first respondent to the District Court should not be set aside. By then the District Court had returned the charge to the Magistrates Court for further consideration. The grant of the order to review meant that further proceedings on the charge were stayed. The first respondent was granted bail.

4 In due course the first respondent entered an appearance and was represented at the hearing on 22 February 2010. His counsel did not oppose the relief sought by the DPP and, in fact, supported the submissions of the DPP that a charge under s 378(2) of the Code was for an 'either way' offence. The court was also informed that the second respondent, the learned magistrate, had been duly served with the papers but did not wish to be heard on the hearing and would abide by the decision of this court.

5 The hearing of the order to review took place on 22 April 2010 and I thereupon decided that the order for committal to the District Court should be set aside and that the charge should be remitted to the Magistrates Court at Albany, to be dealt with according to law as an 'either way' offence based on preliminary reasons which had emerged in the course of argument when the matter came before me on 4 November 2009 but, in view of the practical importance of the issue, I indicated that detailed reasons for the decision would be provided later, as is now being done.

6 On 12 February 2009, the first respondent was charged at Albany with four alleged offences including a charge of stealing a motor vehicle and driving that motor vehicle dangerously contrary to the provisions of s 378(2)(b) of the Code. The specific charge was that on 11 February 2009 at Albany the first respondent stole a motor vehicle, namely a Mitsubishi Pajero, registered number A1476, the property of AGB and on the said date, drove the said motor vehicle in a matter that constitutes an offence, namely dangerous driving under s 61 of the Road Traffic Act 1974 (WA).

7 On 28 July 2009 the first respondent appeared at the Albany Magistrates Court before the second respondent upon that and related charges. The court record shows that, at that hearing her Honour noted that this charge (AL 908/09) 'must proceed on indictment'. Her Honour thereupon committed the first respondent to the District Court for sentence on his plea to that charge upon the basis that it was strictly indictable. No application pursuant to s 5 of the Code was made. Nevertheless, it is apparent from the transcript of the proceedings before her Honour on that day that the first respondent was certainly hoping that all the charges against him would be dealt with in the Magistrates Court (see affidavit of Mr B Fiannaca SC sworn 25 September 2009, exhibit B at page 11). Earlier, in the course of those proceedings, her Honour is recorded as having observed:

Now---when I was going through Mr Peters' paperwork during the luncheon adjournment, it occurred to me that Albany charge 908 is strictly indictable. It carries a term of imprisonment of 8 years. Section 378(2)(b) doesn't fall within s 426 and it's a crime with a term of imprisonment of 8 years so, in my view, it's strictly indictable.

8 As a result, the first respondent was committed for sentence to the District Court at Albany to appear before that court on 29 September 2009. As a consequence a committal report in relation to that charge was sent to the Office of the DPP and received there on 31 July 2009. By virtue of that committal and s 83 of the Criminal Procedure Act 2004 (WA) the Office of the DPP assumed the prosecution of the charge.

9 The DPP submits that by virtue of s 378(2) and s 426(3) of the Code the offence of stealing a motor vehicle and driving recklessly or dangerously is an 'either way' offence and, therefore, can only be the subject of a committal to the District Court if an application for such a committal had been made and granted under s 5 of the Code. As no such application had been made to her Honour, the DPP submits that the second respondent therefore had no jurisdiction to make the order for committal on this charge and, accordingly, sought this order to review and an order setting aside the order for committal.

10 Initially, on the application for the order to review I raised the question of whether or not, even if the DPP were correct in its submission that s 378(2) constituted an 'either way' offence, relief by way of judicial review should be declined in the exercise of discretion upon the well-established principle that this court ought not, except in special circumstances, intrude into the ordinary course of a criminal prosecution or criminal procedure - of which Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 is but one of many illustrations. I raised with counsel the possibility, that even if the committal order had been made without jurisdiction and were invalid, it would nevertheless be open to the DPP to present an ex officio indictment or to decline to present an indictment with the result that the matter could be pursued afresh in the Magistrates Court.

11 Proceeding with a trial on indictment in respect of an offence which is either not indictable or which may only be tried on indictment if certain prior conditions are met, in the absence of satisfaction of those conditions, it is open to challenge because, if the trial were conducted without jurisdiction then, any ensuing conviction could be quashed - Bounds v The Queen [2005] WASCA 1. On the other hand, proceeding with such a trial, not upon the order for committal but because of the presentation of an ex officio indictment may not involve any want of jurisdiction or non-compliance with s 5 because the trial on an ex officio indictment does not result from an ineffective order for committal by a Magistrates Court - compare Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447. Whichever way one looks at the controversy, the essential question is to determine whether or not a charge under s 378(2) of the Code is or is not an 'either way' offence. Such a determination will resolve the question of the proper approach to the conventional procedure for the determination and resolution of such a charge - a point of obvious practical importance and controversy not merely just for this case.

12 As to the possibility that no indictment might be presented, that would leave open the possibility that the same view may be applied again in the Magistrates Court and, in view of the assertions on behalf of the DPP that this controversy had become something of a widespread problem, I concluded that this was one of those special occasions in which a superior court should give relief by way of review even at this early stage of the criminal process. I was further fortified in this view because the determination of this point could have no bearing upon the merits of the prosecution or its eventual outcome but did involve a question of the preservation of significant procedural rights as to the mode of trial or disposition of the charge for the first respondent and for the prosecution.

13 The charge preferred against the first respondent is created by s 378(2) of the Code which provides as follows:

Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.

Alternative offence: s. 382, 383, 388, 390A, 409, 414, 428 or 429.

(1) If the thing stolen is a testamentary instrument, whether the testator is living or dead, the offender is liable to imprisonment for 10 years.

(2) If the thing stolen is a motor vehicle and the offender -

(a) wilfully drives the motor vehicle in a manner that constitutes an offence under section 60 of the Road Traffic Act 1974 (i.e. the offence known as reckless driving); or

(b) drives the motor vehicle in a manner that constitutes an offence under section 61 of the Road Traffic Act 1974 (i.e. the offence known as dangerous driving),

the offender is liable to imprisonment for 8 years.

14 The provisions of the Code relating to how offences may be tried include s 3 and s 5, the material parts of which provide:

1. Indictable offences, general provisions as to

(1) This section applies to offences in this Code and in any other written law.

(2) An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise.

(3) A prosecution for an indictable offence, whether or not it may be tried summarily, may be commenced at any time, unless this Code or another written law expressly provides otherwise.

[(4) deleted]

(5) If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless the person is convicted of the offence by the Children's Court under section 19B(4) of the Children's Court of Western Australia Act 1988 or another written law provides otherwise.

(6) A person may be convicted and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence summarily.

15 The former definition of indictable offence has recently been removed from the Code although reference to an indictable offence still exists, as already illustrated, in s 3. However, a definition of that term can be found in s 67 of the Interpretation Act 1984 (WA) which refers to offences as being indictable offences and simple offences and, by s 67(1a) describes crimes and misdemeanours as indictable offences. Reference to misdemeanours has also recently been removed from the Code now leaving two species of offences, namely crimes and simple offences.

16 The results of the reforms introduced by the Criminal Code Amendment Act 2004 (WA) and the Criminal Procedure Act include the creation of 'either way' offences which, although crimes may, in certain circumstances, be tried in the Magistrates Court and not on indictment. The determination of what is an 'either way' offence and whether or not it might be tried on indictment or in the Magistrates Court follows from an application of s 5 of the Code as introduced by the amending legislation of 2004. That section now provides:

1. Summary conviction penalty, meaning and effect of

(a) a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and

(b) a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).

(2) Despite section 3(2), the court is to try the charge summarily unless -

(a) on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or

(b) this Code or another written law expressly provides to the contrary.

(3) The court may decide the charge is to be tried on indictment if and only if it considers -

(a) that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused;

(b) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences;

(c) that a co-accused of the accused is to be tried on indictment;

(d) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or

(e) that the interests of justice require that the charge be dealt with on indictment.

(4) For the purposes of making a decision under subsection (3) the court -

(a) may require the prosecutor to provide any information the court needs and may hear submissions from both the prosecutor and the accused; and

(b) may adjourn the proceedings.

(5) If under subsection (3) the court decides that the charge is to be tried on indictment the court shall -

(a) give reasons for the decision; and

(b) deal with the accused in accordance with section 41 of the Criminal Procedure Act 2004.

(6) A decision cannot be made under subsection (3) after the accused has pleaded to the charge.

(7) A decision made under subsection (3) is final and cannot be appealed.

(8) If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.

(9) If the court -

(a) convicts the accused of the offence charged after a plea of guilty or otherwise; and

(b) considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,

the court may commit the accused to a court of competent jurisdiction for sentence.

(10) An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.

(11) For the purposes of this section and of any summary trial of the charge, the court must be constituted by a magistrate alone.

17 The provisions relating to the procedure for committal by a Magistrates Court of a person charged with an offence for trial or sentence in a superior court are to be found in s 40 and s 41 of the Criminal Procedure Act which, so far as it materially provides:

(1) This section applies if the charge is an either way charge.

(2) If The Criminal Code section 5 applies to the charge, the court must give the prosecutor and the accused an opportunity to apply under that section for the charge to be tried on indictment.

(3) If the court decides that the charge is to be tried on indictment, the court must proceed in accordance with section 41.

(4) If the charge is to be tried summarily, the court must deal with the charge summarily under Division 6 and may do so -

(a) with the consent of the prosecutor and the accused, immediately; or

(b) otherwise, on a later date.

(a) the charge must be tried on indictment; or

(b) under The Criminal Code section 5 or any other written law, the court has decided that the charge, being an either way charge, is to be tried on indictment.

(a) tell the accused that he or she is not required to plead to the charge; and

(b) give the accused the opportunity to plead to the charge.

(3) If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge, and comply with section 47(1).

(4) If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42.

18 Section 426(1) and (2) of the Code provides summary conviction penalties for certain stealing and like offences including offences charged under s 378 of the Code (s 426(1)(a)) but only if the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years. In cases where such a summary conviction penalty does apply and where the value of the property does not exceed $10,000 (and subject to s 427(4)) the maximum penalty is imprisonment for 2 years and a fine of $24,000.

19 These provisions so far mentioned do not create a summary conviction penalty for the offence with which the first respondent was charged because, as already noted, that charge carries a possibility of imprisonment for 8 years. Nevertheless, such a summary conviction penalty is established by s 426(3) which provides:

1. Summary conviction penalty for certain stealing and like offences

...

(3) Summary conviction penalty: for an offence -

(a) under section 378 or 414; or

(b) of attempting to commit, or inciting another person to commit, an offence under section 378 or 414,

where the property in question is a motor vehicle, unless subsection (4) applies - imprisonment for 2 years and a fine of $24 000.

20 Accordingly, this summary conviction penalty under s 426(3) is available in the event of a conviction for an offence under s 378(2) notwithstanding that the penalty under the section may be greater than 7 years' imprisonment. Consequently, s 426 makes a special case for stealing of motor vehicles in that:

(a) it applies even if the offence involving the motor vehicle has an available penalty over 7 years' imprisonment, which would be otherwise precluded from summary penalties under s 426(1) and (2); and

(b) it does not matter what was the value of the car stolen.

21 A further summary conviction penalty is provided by s 426(4) and is set from the offence under s 378, and other sections, in cases where the value of the property in question does not exceed $1,000 - in such a case a maximum summary conviction penalty will be a fine of $6,000.

22 It has been held that s 426(4) is applicable where s 426(1)(a) applies but not s 426(1)(b) - Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136, or when s 426(3) itself applies. This means that the special conviction penalty created by s 426(3) is not in any way conditioned by the criteria or requirements specified under s 426(4). Subsection 426(3) stands alone and does not rely on s 426(1)(a) to condition its application.

23 Accordingly, because of the existence of a specified summary conviction penalty, by s 426(3) for the charge under s 378(2) preferred against the first respondent it follows, from s 5(1) of the Code that such a charge is a charge for an 'either way' offence. That being so, the offence is to be tried summarily unless an application under s 5 of the Code is made by the prosecutor or the accused before the accused pleads to the charge or some other written law expressly provides to the contrary. No such application for trial or disposition of the charge against the first respondent on indictment was made by the prosecutor or by the accused in the proceedings before the second respondent in Albany on 28 July 2009 when the first respondent was committed to the District Court for sentence. It follows that the committal of the first respondent to the District Court was contrary to the provisions of s 5(2) of the Code and, accordingly, an error of law and an error which wrongly limited the jurisdiction of the Magistrates Court to deal with this charge.

24 Accordingly the committal order should be set aside and the charge should be remitted to the Magistrates Court at Albany to be dealt with according to law. Because the potential application of s 5 of the Code was not considered at the previous hearings in the Magistrates Court there will need to be an opportunity for the prosecutor or the accused to apply for the charge to be tried on indictment if either should wish to make such an application under s 5(2)(a) of the Code and s 40(4) of the Criminal Procedure Act. While it seems unlikely, having regard to the history of this matter that any such application under s 5(2)(a) of the Code should be made, an opportunity to allow that to occur must be given. Assuming that no such application is made then the charge would need to be heard and determined summarily in the Magistrates Court.

25 As this present controversy has arisen because of circumstances entirely outside the control or influence of the first respondent, and because the first respondent has taken no role in these proceedings except to support the application of the DPP, he should not be required to meet any of the costs of these proceedings. That has been recognised by the DPP and no order for costs has been sought and none will be made.