Haymon v Deland & Lang [1992] NTSC 96; 111 FLR 62 (19 November 1992)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MARTIN J
HRNG
DARWIN
#DATE 19:11:1992
Appearances not available.
ORDER
The time for commencement of these proceedings be extended
to 8 October
Order that the first defendant's decision of 13 May 1992
to commit the second defendant for trial to the Supreme Court
be quashed.
Order that the first defendant proceed to hear and
determine the charges against the second defendant in
a
summary manner in accordance with the provisions of the
Justices Act.
JUDGE1
MARTIN J The plaintiff applies for orders in the nature of certiorari to
quash a decision made by the first defendant, a
Stipendiary Magistrate, when
she was sitting as a Court of Summary Jurisdiction, that charges for
indictable offences brought against
the second defendant be tried by the
Supreme Court, and for an order in the nature of mandamus that she proceed
with the hearing
in the Court of Summary Jurisdiction.
Justices Act - Indictable Offences
Where a person appears before a Justice charged with an indictable offence
(and the procedure provided
for in s105A is not adopted) the Justice shall
take the preliminary examination or statement on oath of any persons who know
the facts and circumstances
of the case, and the defendant or his counsel or
solicitor may cross-examine those persons (s106). When all the evidence
offered
on the part of the prosecution has been taken, the Justice then
present shall consider whether it is sufficient to put the defendant
upon his
trial for any indictable offence (s109(1)), and, if the Justice is of the
opinion that the evidence is sufficient, the Justice may proceed in the manner
directed and under
the provisions in that part contained in Division 2 of Part
V of the Act (minor indictable offences), or, in some circumstances, take his
plea and commit him to the Supreme Court for sentence,
or proceed with the
examination (s109(3)). Where the Justice proceeds with the examination he or
she is to say to the defendant the words prescribed in s110 which,
incorporating a caution, seeks an indication as to whether the defendant
wishes to give evidence, and ask whether he desires
to call any witnesses
(s111). When the examination is completed, the Justice is to consider whether
the evidence is sufficient to
put the defendant upon his trial for any
indictable offence, and s112 provides for the procedure to be adopted
depending upon the outcome of that consideration.
When the Magistrate proceeds to dispose
of a case as a minor indictable
offence and the defendant has pleaded not guilty to the charge, the Magistrate
is then constituted
as a Court of Summary Jurisdiction, and, subject to the
Act, the procedure and the powers of the Court shall be the same, and the
provisions of the Act shall apply, as if the charge were a complaint for a
simple offence under the Act (s125(2)).4. Leaving aside s120, which has no bearing on this case, Division 2 of Part
V of the Act deals with indictable offences that may be dealt with summarily
with the consent of the accused where the same are not
punishable by
imprisonment for life or for a term exceeding ten years, s121B. Relevantly,
it is provided in s121A that subject to s121B and 122A where:
(a) a person is charged before the Court with an indictable
offence; (as the defendant is formally charged and the plea
taken prior to the Magistrate being constituted as the Court
(s124), "charged" in this provision must mean that he is
before the Court or accused of the offence, see Stirland v
DPP (1944) AC 315 at pp323, 324 and Arnell v Harris (1945)
KB 60 at p 63).
(b) in the opinion of the Court, the charge is not one that
the Court has jurisdiction, apart from that section,
to hear
and determine in a summary manner;
(c) the evidence for the prosecution is, in the opinion of
the Court, sufficient
to put the defendant on his trial;
(d) the Court is of the opinion that the case can properly be
disposed of summarily, and
(e) the defendant consents to it being so disposed of the
Court has jurisdiction to hear and determine the charge in a
summary
way and to pass sentence upon the person so charged.
In this section "Court" means the Court of Summary
Jurisdiction constituted
by the Chief Magistrate or a
Stipendiary Magistrate (subs(3)); hereafter "the Magistrate".
The Court has power but is not
obliged to accept a plea of guilty from a
person being dealt with in the manner above referred to (ss(1A) and (1B)) in
which event,
or where the person is convicted upon determination of the
charge, the Court shall not impose a penalty that is greater than imprisonment
for two years or a fine of $2,000 (s121A(2)). A limitation which may well
advantage some persons convicted by this procedure.
There is another fetter on the Magistrate hearing
and finally determining
a charge under s121A. There is no jurisdiction in the Magistrate if it
appears to the Magistrate that the offence, having regard to its seriousness
or
the intricacy of the facts or the difficulty of any question of law likely
to arise at the trial or any other relevant circumstances,
ought to be tried
by the Supreme Court (s122A).
It will have been noted that these provisions of the Act refer to the role
of a "Justice", a "Stipendiary Magistrate", and a
"Court of Summary
Jurisdiction" or "Court". Those words are variously defined in s4 of the Act.
"Justice" means a Justice of the Peace for the Territory and includes any
Magistrate, by whatever name called who is
authorised to act as a Justice of
the Peace. "Stipendiary Magistrate" means a Stipendiary Magistrate appointed
under s4 of the Magistrates Act or the Chief Magistrate within the meaning of
that Act. "The Court of Summary Jurisdiction" or "Court" means Justices
forming the
Court for the purposes of hearing and adjudicating upon any case
or matter which they have power to determine in a summary manner.
("Justices"
includes a single Justice). Although a Justice, who is not a Magistrate, may
exercise the power to conduct a preliminary
examination under Division 1 of
Part V of the Act up to the stage of committal of a person charged with an
indictable offence for trial in the Supreme Court, a Justice
does not have
jurisdiction under s121A.
Course of Proceedings
Mr Lang, the second defendant, appeared before her Worship sitting
as a
Justice on 24 January 1992 charged with indictable offences. At the
commencement of the proceedings the prosecutor informed
the learned Magistrate
that the matter would proceed "as a section 121A situation". Counsel for Mr
Lang did not demur. It was clearly
contemplated by both the prosecution and
the defence that the matter would be dealt with summarily with the consent of
the accused,
subject of course, to the first defendant sitting as a Magistrate
in the Court of Summary Jurisdiction having jurisdiction, and the
other
statutory requirements being satisfied.
The prosecution evidence upon the preliminary examination was called
(s106) and
concluded on 28 January. At that stage counsel for Mr Lang
immediately indicated that her client consented to the matter being dealt
with
summarily (s121A(1)(e)). Her Worship indicated that she wished to then
adjourn to consider whether the case could properly
be disposed of summarily
(s121A(1)(d)). Upon resumption of the hearing the learned magistrate said
that she was concerned as to
jurisdiction referring to s122A, and the
seriousness of the offences. During the course of short submissions (in which
the prosecution
submitted there was no reason why the matter should not be
dealt with summarily), counsel for Mr Lang said that all of the requirements
of s121A had been satisfied, and her Worship expressed herself prepared to
proceed summarily.
The charges were then read to
Mr Lang and he pleaded not guilty to them.
The Magistrate was then the Court.
Her Worship announced no findings at any stage
after the evidence offered
upon the part of the prosecution had been taken that it was sufficient to put
Mr Lang upon his trial for
an indictable offence (s109(1)), but it seems to
have been acknowledged by his counsel that such a finding had been made,
though
not expressed.
At the adjourned hearing on 12 May Mr Lang commenced to give evidence in
defence of the charges. During the course
of that evidence two questions of
law arose, one relating to the circumstances in which the protection of
communications between
Mr Lang and his legal adviser might be waived in
relation to a document, and the second, as to the relevance of certain lines
of
cross-examination of Mr Lang by the prosecutor. No rulings had been made
on either of those matters by the close of the proceedings
on 12 May, by which
time the cross-examination of Mr Lang had not been completed. His counsel
indicated that he would be available
the following day, but she would need to
enquire of other witnesses as to their availability.
On the following day the prosecutor
and counsel for Mr Lang made further
submissions as to those legal issues, during the course of which her Worship
intimated that
because of the difficult questions of law involved the matter
should go before the Supreme Court. The prosecutor argued to the contrary,
but counsel for Mr Lang accepted the proposed course. She purported to
withdraw her consent to the charges being dealt with summarily.
Although stating that "it would seem to be a little ludicrous" to comply
with s110, her Worship said the words prescribed as
if nothing had occurred
since the close of the prosecution case and as if she was simply proceeding as
a Justice with a preliminary
examination (s109(3)(a)). Mr Lang's counsel
announced that he "reserves his defence", and her Worship proceeded to commit
him for
trial (s112(3)).
Consideration
There is a clear distinction between the functions of a Justice
(including a Magistrate) under
Division 1 of Part V of the Act in relation to
the preliminary examination concerning a charge for an indictable offence and
that of the Court under Division
The Magistrate was first engaged in
conducting a preliminary examination, an executive or ministerial function,
(per Gibbs J
Ammann v Wegener [1972] HCA 58; (1922) 129 CLR 415 at 435), and not adjudicating
upon the hearing of a charge (see also s108A). The bridge between the two
functions lies in s109(3).
In considering the available options a Justice
would no doubt pay regard to the question of jurisdiction raised in s122A.
Apart
from anything else, a case could not properly be disposed of summarily
absent jurisdiction (s121A(1)(d)). Whether there is jurisdiction
to proceed
summarily depends upon what the Magistrate perceives as to the factors
mentioned in s122A, a perception which must be
formed whilst sitting as an
examining Justice and taken into account when making the determination under
s109(3). Consideration
will be given to the question in the light of the
evidence in the prosecution case and of the issues which have arisen thereon,
both
factual and legal. The decision is to be taken when all the prosecution
evidence has been given, but it is not clear that it must
be made immediately
thereafter or whether "when" simply denotes a condition precedent. What is
contemplated by the legislation is
a forecast being made of the factual and
legal issues which will or might arise if the charge proceeds to trial
summarily, and the
taking into account of any other relevant circumstance. If
the Magistrate's perception is such that the offence ought to be tried
in the
Supreme Court then there is no jurisdiction to proceed to a summary trial.
Although earlier concerned as to the seriousness
of the offences, her
Worship did not at that time perceive that that factor was such that the
matter ought to be tried in this Court,
and instead she embarked upon the
summary trial. During the course of that trial the questions of law arose,
and perceiving them
to be difficult, she decided that the offences ought to be
tried in this Court and effectively abandoned the summary trial. The
issue
that arises is as to whether the questions of law having arisen during the
summary trial the Magistrate was thus deprived of
jurisdiction under s122A as
she thought. It is only necessary to go to the words of the section to see
that the answer must be "No".
It speaks of "The difficulty of any question of
law likely to arise at the trial", not the difficulty of any question of law
which
arises during the course of the trial. To be "likely", a thing must be
such as might well happen, or be probable or reasonably expected
(Concise
Oxford Dictionary) it ceases to be likely if it occurs. For this reason the
learned Magistrate erred in purporting to abandon
the summary trial and
committing Mr Lang for trial in this Court.
It is not necessary to decided the other major question argued
on this
application. It concerns whether having embarked upon a summary trial a
Magistrate may decide that the jurisdiction being
exercised is ousted by
reason of any of the other circumstances outlined in s122A, or the charge is
one which can then be tried in
no other way. There is little guidance
available. Such cases as have been referred to involved materially different
legislation
and facts easily distinguished from this case. Reference might be
made to R v Justices of Hertfordshire (1911) 1 KB 612; R v Sheridan (1937) 1
KB 223; Bjorklund v Noblet [1932] SAStRp 22; (1932) SASR 196 at 207; R v Fiala (1986) 41 SASR
168 at pages 175 and 182 and R v Ackland (1986) 43 SASR 268 (Hall v Braybrook
[1956] HCA 30; (1956) 95 CLR 620 may be found helpful on the question of what amounts to "any
other relevant circumstances" in s122A).
Remedy
The sharp distinction
between the jurisdiction of a Justice at a
preliminary examination and a Magistrate constituting the Court became
considerably blurred
at the conclusion of the proceedings before her Worship.
What is clear enough, however, is that she purported to abandon the summary
trial and revert to the procedure under Division 1 of Part V of the Act.
Neither step was permitted, at least in the circumstances of this case. No
formal order was made terminating the proceedings
in the Court. Her Worship
simply stopped adjudicating at the summary trial over which she had
jurisdiction. The Act casts upon
the Court a duty to hear the defendant and
his witnesses (s68) and to consider and determine the whole matter and dispose
of it as
the case requires (s69). An order in the nature of mandamus is
available (O.56 Supreme Court Rules). The prosecutor made it clear
that he
wished the matter to proceed summarily during the course of argument just
prior to her Worship changing her course. It was
not argued before this Court
that the relief sought be refused in the exercise of discretion because an
appellate procedure is also
available. Perhaps that was because there was no
order.
For the same reason it is open to this Court to make an order in the
nature of certiorari quashing the order committing Mr Lang for trial in this
jurisdiction. It is debatable whether that order is
appellable, but given the
interconnection between the remedy sought in relation to the two impugned
decisions, it would be silly
to refuse discretionary relief because an appeal
may be available in respect of one of them.
There remains the question of an
extension of time for the commencement
of the proceedings. Her Worship's decisions were made on 13 May and the
originating motion
was filed on 8 October, about three months outside the
period allowable under O.56. The circumstances giving rise to the delay are
explained by Mr Carey, a Crown prosecutor, in his affidavit sworn 9 November.
He deposes that on 21 May the Office of the Director
of Public Prosecutions at
Alice Springs received a letter from the police dated 15 May advising that Mr
Lang had been committed for
trial. Mr Carey did not commence employment with
the office until 15 June, and was given conduct of the matter, but upon
perusing
the file he formed the opinion that it was unlikely that an
indictment could be presented in the usual way because of the circumstances.
It is not disclosed as to who had the file between 21 May and 15 June nor
what, if anything, was done during that time. It appears
that by 24 August
1992 Mr Carey had a transcript of the proceedings available, although he is
unable to recall when it was received,
but on that date he contacted the
Darwin office of the Director of Public Prosecutions when he mentioned his
concerns and was asked
to forward a detailed opinion on 27 August. On 2
September approval was received for the application to be made, but Mr Carey
says
that due to the pressure of work he was unable to apply himself to
preparation of the necessary documents until after the conclusion
of the
September sittings of the Supreme Court, but that those documents were filed
having been approved in Darwin on 8 October.
It is noted that all that is
required under O.56 is that the proceedings be commenced within 60 days after
the date when grounds
for the grant of the relief first arose. It is not
necessary that the originating process be served. It is probable that the
costs
involved in an application for extension of time including the affidavit
in support and argument before the Court would far outweigh
the cost involved
in the preparation and filing of originating process which is later abandoned.
Be that as it may, this is
an important matter going to the proper
administration of the criminal justice system in the Territory. That system
would be brought
into ridicule if the charges against Mr Lang were not able to
be properly dealt with. It should not be left to a Crown law officer
to
determine whether to sign an ex officio indictment (Criminal Code s300) and
bring Mr Lang before the Court thereon when he is
already properly before a
Court of Summary Jurisdiction where he originally consented to be tried. He
does not say that he is prejudiced
by the delay. Special circumstances exist
justifying an order extending the time fixed by O.56 until 8 October 1992.
Leave is
granted pursuant to r43.07 for the use in these proceedings of
the affidavit of Philip Keith Dredge sworn 7 October 1992, before
the
commencement of proceedings. Orders
The time for commencement of these proceedings be extended
to 8 October 1992.
[3]
Order that the first defendant's decision of 13 May 1992
to commit the second defendant for trial to the Supreme Court
[4]
be quashed.
3. Order that the first defendant proceed to hear and
determine the charges against the second defendant in a
[5]
summary manner in accordance with the provisions of the
Justices Act.