JW v The King [2025] NTSC 79

AK v The Queen [2021] NTCCA 4; Barton v R [1980] HCA 48; (1980) 147 CLR 75; Iqbal v R [2012] NSWCCA 72; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Likiardopoulos v R (2012) 247 CLR 265; Maxwell v R (1996) 184 CLR 501; Maya v DPP [2019] VSCA 117; ML v R (ML) [2018] NTCCA 18; R v Gurruwiwi [2008] NTCCA 2; 22 NTLR 68; SM v Youth Justice Court and others (SM) [2024] NTSC 37; Strickland v DPP (Cth) [2018] HCA 53; (2018) 266 CLR 325; The Queen v JHW [2021] NTSCFC 1; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Accused: North Australian Aboriginal Justice Agency

Crown: Office of the Director of Public Prosecutions

• [1] JW (the accused) is a young person, presently aged 16 years. He was 14 and a half years old at the time of his alleged offending.
• [2] On 3 December 2023, the motor vehicle that the accused was driving near Darwin in the Northern Territory left the road and capsized. As a result, one of the passengers in the motor vehicle was killed and another suffered serious injuries. Subsequently, five charges were laid against the accused in the Youth Justice Court in Darwin.
• [3] After a Youth Justice Court Judge decided to continue to hear and determine the two most serious charges summarily under section 56 of the Youth Justice Act 2005 (the YJA), the Crown filed an ex officio indictment in the Supreme Court with respect to those two charges.
• [4] Relevantly, that indictment alleged that the accused "drove a motor vehicle dangerously and caused the death of WP.... [and] caused serious harm to BP" contrary to sub sections 174F(1) and (2) of the Criminal Code, respectively. The maximum penalty for the former offence is 10 years imprisonment and 5 years imprisonment for the latter. Both are indictable offences.[1] Crucially, however, if the accused's sentencing were to proceed before the Youth Justice Court, s 83(2) of the YJA prescribes a maximum period of two years imprisonment for each offence.
• [5] The accused has now applied for a permanent stay of the ex officio indictment on the ground that it constitutes an abuse of process. For the reasons that follow, I do not consider that the accused has established that ground and accordingly, his application will be dismissed.

• [6] Shortly after midnight on 3 December 2023, the accused was driving a blue Toyota Starlet motor vehicle southbound on the Stuart Highway, south of Darwin, approaching the Coolalinga Shopping Centre. He was not, at that time, and never has been, the holder of a driver's licence.
• [7] WP was one of the passengers in the vehicle. He was sitting on the front passenger door window frame with his arms outside the vehicle. He was not wearing a seatbelt. BP was the other passenger. He was sitting in the rear passenger seat with his seatbelt on.
• [8] At a point north of the Coolalinga Shopping Centre, the left-hand tyres of the vehicle left the bitumen surface of the road and entered the soft gravel shoulder. This caused the accused to lose control of the vehicle. As a result, the vehicle slid sideways, tipped over, rolled several times and eventually came to rest on its wheels after colliding with a street sign.
• [9] Tragically, WP was killed, and BP suffered several serious injuries.
• [10] A blood test performed at the Royal Darwin Hospital soon after the accident revealed that the accused had cannabis in his system and that he also had a blood alcohol concentration of 0.106 g of alcohol per 100 mL of blood.

• [11] On 20 June 2024, the accused was charged with four offences: one charge of dangerous driving causing the death of WP; two charges of driving under the influence of a drug, namely cannabis and alcohol, and one charge of driving without a licence.
• [12] The accused was summonsed to appear before the Youth Justice Court in Darwin on 13 August 2024.
• [13] On 10 July 2024, a fifth charge of dangerous driving causing serious harm to BP was added.
• [14] At the hearing on 13 August 2024 the Youth Justice Court Judge ordered reports under various provisions of the YJA and adjourned the proceeding to 6 September 2024.
• [15] At that adjourned hearing, the accused's lawyer informed the Court that his client would be pleading guilty to the initial four charges. It appears that, by that time, the fifth charge had not been served because the matter was adjourned to 24 September 2024 to, among other things, allow that to occur. As well, the prosecutor informed the Court that he wished to consider whether to make an application under s 56 of the YJA to have the two indictable offences proceed by way of a preliminary examination, rather than a summary hearing.
• [16] On the day before the further adjourned hearing on 24 September 2024, the prosecutor filed that application. After receiving written and oral submissions at that hearing, the Youth Justice Court Judge refused the application and gave ex tempore reasons. The matter was then adjourned to 18 October 2024.
• [17] On 17 October 2024, after receiving and considering representations from the accused's lawyer, the Crown filed the ex officio indictment mentioned earlier.[2]

• [18] It is convenient to begin by identifying the issues that are not in dispute. First, it is not in dispute that the accused proposes to plead guilty to all of the charges against him and there will, therefore, be no need for a contested hearing in respect of any of them.
• [19] This raises an issue upon which supplementary submissions were sought after judgment was reserved in this matter. In his initial written submissions, the accused contended that the Youth Justice Court Judge must have already found him guilty on all five charges on 13 August 2024. That submission was based on the fact that, on that date, her Honour ordered that a report be prepared under s 68 of the YJA, and that section prescribes a finding of guilt as a pre-condition for such an order.
• [20] If this contention were correct, it raised a more fundamental question. That was whether the Youth Justice Court Judge had committed a jurisdictional error on 24 September 2024 in determining the Crown's application under

s 56. That is so because the operation of that section is expressly confined to "... any stage of the proceedings (prior to a finding of guilt)...".

• [21] However, in his supplementary submissions, the accused accepted that the transcript of the proceeding did not support him and withdrew this contention. He also accepted that the report ordered on 13 August 2024 did not appear to be authorised by the YJA. In supplementary submissions, the Crown agreed that the accused had not at any stage formally entered pleas of guilty on any of the charges against him. It claimed that the Youth Justice Court appeared to have a practice of ordering reports under s 68 "...as a mechanism to ensure youth matters continue to progress in some way while parties embark on plea negotiations or prepare a matter for contest...". While the Crown agreed that this practice was ultra vires, it did not seek to rely on it in this matter.
• [22] In the end result, the common position of the parties in their supplementary submissions was that the Youth Justice Court Judge had not committed a jurisdictional error in her decision with respect to the Crown's application under s 56.
• [23] Secondly, it is common ground that there is no right of appeal from the Youth Justice Court Judge's decision of 24 September 2024.[3] Thirdly, it is accepted by both parties to be well-established by authority that the Crown's decision to issue the ex officio indictment is not susceptible to judicial review.[4]
• [24] Finally, it is not in contention that, on rare occasions, an indictment may be stayed as an abuse of the Court's process[5] and that, in the Northern Territory context, that application may be brought under s 319 of the Criminal Code and/or the inherent jurisdiction of this Court.
• [25] Turning then to the issues that are in dispute, the accused has advanced two reasons for contending that the filing of the ex officio indictment against him constitutes one of those rare occasions mentioned above. They are, first, that the Crown has undermined public confidence in the administration of justice by failing to challenge the Youth Justice Court Judge's ruling by way of judicial review proceedings under Order 56.01 of the Supreme Court Rules and, instead, rendering that ruling a nullity by filing the ex officio indictment. Secondly, that pursuing the ex officio indictment will result in unfairness to him because that course will expose him to the potential of a longer sentence of detention or imprisonment in respect of the two indictable offences.
• [26] In advancing these grounds, the accused relied heavily on the Victorian Court of Appeal decision in Maya v DPP (Maya).[6] In that matter, the Court stayed an indictment issued in the County Court as an abuse of process when there were unchallenged proceedings pending in the Magistrates Court on the same charges in respect of which the defendant would be exposed to a maximum penalty of two years imprisonment compared to 10 years imprisonment under the indictment.[7]
• [27] By analogy, the accused contended that the Crown was attempting to use the Supreme Court to "usurp and circumvent" the lawfully exercised statutory authority of the Youth Justice Court. The accused contended that the Crown was "evading the lawful exercise of judicial power" by not filing the ex officio indictment until after it had obtained an adverse decision on the application under s 56 of the YJA. Also, by way of analogy with Maya and in support of the accused's second reason above, he contended that there was "an inherent unfairness to [him] in proceeding in the Supreme Court and not the specialist summary court with a focus on therapeutic justice for a first-time child offender".
• [28] Finally, the accused sought to distinguish the NSW Court of Criminal Appeal decision in Iqbal v R (Iqbal)[8] upon which the Crown placed particular reliance. He did so in three respects. First, that it involved a prosecution undertaken by the NSW Police rather than the NSW Director of Public Prosecutions. Secondly, that it concerned an adult offender rather than a youth and, thirdly, that it related to a contested hearing rather than a sentencing matter.
• [29] In response, the Crown began by emphasising that the power to grant the stay sought by the accused was one that is only available in the most exceptional circumstances,[9] that it has been described as a measure of last resort[10] and that the accused bears a heavy onus in persuading the Court that it should be granted.[11]
• [30] With respect to the first reason advanced by the accused,[12] the Crown contended that its power under s 52(3) of the YJA to issue the indictment is not "preconditioned on such a challenge" and, in any event, there is no indication that the Youth Justice Court Judge made any relevant error that could attract judicial review.
• [31] With respect to the second reason advanced by the accused,[13] the Crown placed particular emphasis on the seriousness of his alleged offending. In that respect the Crown contended that the powers available to this Court when sentencing the accused included all the powers of the Youth Justice Court and several others but, importantly, those additional powers were not fettered by the two-year cap in s 83(2) of the YJA. This meant, so the Crown contended, that in determining what period of detention or imprisonment marked an appropriate punishment for the accused's offending, only this Court could properly balance the seriousness of the alleged offending and the consequent need for general deterrence and denunciation, with the peculiar subjective factors affecting the sentencing of young offenders.
• [32] Finally, the Crown sought to distinguish the decision in Maya by highlighting the following features. First, that it involved a contested summary hearing rather than a sentencing exercise.[14] Secondly that, unlike in this matter, the Crown in Maya had a statutory right of appeal that had not been exercised and several other statutory processes available that had not been pursued. Finally, that the statutory regime in place in Maya did not contain a power similar to that in s 53(2) of the YJA.

• [33] Before considering these contentions, it is convenient to review the relevant statutory provisions in so far as they bear on the jurisdiction and powers of the Youth Justice Court and the Supreme Court when sentencing a young offender charged with an indictable offence.
• [34] The Juvenile Justice Court was originally established under the Juvenile Justice Act 1983. That Court was continued in existence as the Youth Justice Court under s 45 (1) of the YJA. Under s 45(2) of that Act each Local Court Judge is designated to be a Judge of the Court.
• [35] The word "youth" is defined in s 6 of the YJA to mean: "... a person under the age of 18 years; or... in the absence of proof as to age, a person apparently under 18 years of age."
• [36] In ML v R (ML)[15] the Northern Territory Court of Criminal Appeal accepted a "contextual proposition" put by the appellant that "... the legislative intention apparent in the Youth Justice Act [was] that the Youth Justice Court should deal with the majority of offences committed by youths." [16] Consistent with that observation the Youth Justice Court's jurisdiction is described in s 52(1) of the YJA in the following quite broad terms:

The following must be dealt with in accordance with this Act by the Youth Justice Court:

(a) all charges in respect of summary offences or indictable offences allegedly committed by a youth;

(b) all applications in the Territory relating to unlawful activity, or alleged unlawful activity, of youths, whether or not that activity took place, or is alleged to have taken place, in the Territory.

• [37] One of the provisions to which this section refers is s 54 which, with certain exceptions, requires that all charges before the Youth Justice Court must be heard and determined summarily, rather than by way of preliminary examination. Those exceptions were summarised by the Court in ML [17] as follows:

(1) The Youth Justice Court must deal by way of preliminary examination with a charge against a youth that would be punishable by imprisonment for life if it was committed by an adult.[18]

(2) Subject to exceptions concerning offences punishable by life imprisonment and certain indictable property offences which may be dealt with summarily , a youth may consent or not to a charge of an indictable offence being heard and determined summarily and if the youth consents the Youth Justice Court must hear and determine the charge summarily.[19]

(3) If the youth does not consent to a charge for an indictable offence being determined summarily the Youth Justice Court must deal with the charge by way of preliminary examination, although the youth may subsequently elect to have the charge heard and determined summarily at any time before or during the preliminary examination.[20]

(4) The Youth Justice Court may decline to hear a charge against a youth for an indictable offence summarily if it considers it is not appropriate to do so, and must in those circumstances proceed by way of preliminary examination.[21]

• [38] Nonetheless, as the Court went on to make clear in ML, neither these provisions nor any others in the YJA achieved a "general ouster" of the Supreme Court's general criminal jurisdiction under the Supreme Court Act to try offences charged on indictment including youths charged with such offences.[22] This conclusion is reinforced by s 52(3) of the YJA which contains the following express qualification with respect to the Youth Justice Court's jurisdiction as described in s 52(1) above:[23]

"Subsection (1) does not limit the jurisdiction of the Supreme Court to deal with a matter involving a youth where an ex officio indictment has been presented to that Court."

• [39] In addition to these jurisdictional considerations there are several other provisions of the YJA that distinguish between the sentencing powers of the Youth Justice Court and those of the Supreme Court. First, s 82 of the YJA defines three separate heads of sentencing powers that are available to the Supreme Court. They are as follows:

(a) exercise, in addition to its powers, the powers of the Youth Justice Court;

(b) order that the youth be detained in a detention centre or imprisoned for a period not exceeding the period of imprisonment for which such an offence would be punishable if committed by an adult;

• [40] In AK v The Queen[24] the Northern Territory Court of Criminal Appeal considered the operation of these three heads of power by reference to its earlier judgment in R v Gurruwiwi[25] and provided the following summary of their content and limitations:[26]

[33] The first source of power is found in s 82(1)(a) of the [YJA], namely to exercise the powers of the Youth Justice Court which are found in s 83(1) of the [YJA]. Section 83(1)(i) includes the power to order a term of detention or imprisonment that is suspended in whole or in part. These powers are constrained by s 83(2), which provides that the term of imprisonment must not exceed two years for a youth aged 15 years or more and 12 months for a youth aged less than 15 years.

[34] The second source of power is found in s 82(1)(b) of the [YJA], namely to order that the youth be detained or imprisoned for a period not exceeding the period of imprisonment for which such an offence would be punishable if committed by an adult. This source of power is not constrained by s 83(2), as s 83(2) operates only in respect of the powers in s 83(1). By virtue of s 82(2), the Supreme Court has, when exercising the power to order a sentence of imprisonment under s 82(1)(b), the powers that it has in relation to a sentence of imprisonment under the Sentencing Act. ....

[35] The third source of power, confirmed by the words "in addition to its powers" in s 82(1)(a) of the [YJA], is found in s 7(j) of the Sentencing Act independently and exclusively of the provisions of the [YJA]. ....

• [41] The legislative intention underpinning this statutory scheme was summarised by the Full Court of the Supreme Court in The Queen v JHW:[27]

The intention of that scheme as a whole is that the Supreme Court can do everything that the Youth Justice Court can, and more. That is to say, by virtue of s 82(1) of the Youth Justice Act, the Supreme Court has all of its own powers plus all of the powers of the Youth Justice Court, ...

• [42] This is to be compared with the sentencing powers of "the Court"[28] that are set out in the succeeding section of the YJA.[29] Without listing them verbatim, they include the power to dismiss a charge, to discharge a youth without penalty, to adjourn a matter, to order participation in an approved program, to order a youth be released on security, to fine a youth, to subject a youth to a Community Work Order, or to order that a youth serve a period of detention or imprisonment and suspend that period in whole or in part. However, as has already been adverted to several times, the last of these powers is subject to the restriction contained in s 83(2) as follows:

If the Court orders that the youth serve a term of detention or imprisonment, the term must not exceed the lesser of:

(a) the maximum period that may be imposed under the relevant law in relation to the offence; or

1. 15 years of age or more - 2 years; or
2. less than 15 years of age - 12 months.

• [43] The accused has advanced two reasons for seeking to characterise the Crown's pursuit of the ex officio indictment as an abuse of process. First, he contends that the Crown has undermined public confidence in the administration of justice by exercising the specialist jurisdiction of the Youth Justice Court then "usurping" that jurisdiction by filing the ex officio indictment, after he obtained an adverse ruling from that Court, rather than challenging that ruling. Secondly, the accused contends that the Crown has unfairly exposed him to the potential of a longer sentence of detention or imprisonment in respect of the two indictable offences by filing the ex officio indictment and thereby "circumventing" the two-year cap imposed by s 83(2) of the YJA. I will deal with these two reasons in turn.
• [44] With respect to the first reason, there can be little doubt that the Crown has exercised the unique jurisdiction established by the Legislature to deal with charges against young offenders. The Crown did that by charging the accused with the five offences in the Youth Justice Court and then applying, unsuccessfully, within the YJA framework[30] to have the two indictable offences dealt with by preliminary examination rather than summarily. The question, therefore, is whether, after obtaining that ruling, the Crown "usurped" that jurisdiction and thereby undermined public confidence in that system, by proceeding to file the ex officio indictment with respect to those offences, while all of the charges against him remained extant in the Youth Justice Court.
• [45] The short answer to this question lies in s 52(3) of the YJA. By that section the Legislature has unconditionally preserved the right of the Crown to take the step that it did. In other words that section supports what the Court said in ML to the effect that none of the provisions of the YJA has removed the general criminal jurisdiction of the Supreme Court to deal with indictable offences, including those committed by youths.[31] Using that provision does not, therefore, "usurp" the jurisdiction of the Youth Justice Court. Instead, it reinforces the primary jurisdiction of the Supreme Court in such matters.
• [46] As for the suggestion that the Crown was bound to seek judicial review of the Youth Justice Court Judge's decision before issuing the ex officio indictment, there is nothing in the text, context or purpose of s 52(3) to indicate any such obligation. Even if there were, the accused has not identified any reviewable error in that decision. In SM, Grant CJ identified the two possible grounds for judicial review of a decision made by the Youth Justice Court under s 56 of the YJA as: jurisdictional error; and error on the face of the record. With respect to the former, the common position of the parties noted earlier is that the Youth Justice Court Judge did not commit a jurisdictional error in making that decision.[32] And, as Grant CJ explained in SM, the latter, is restricted to errors forming part of the "record" which, in the present context, is essentially confined to the charges before the Youth Justice Court and the ruling (not the reasons) made by that Court.[33] The accused has not identified any error in that "record" and nor is one immediately apparent.
• [47] The second reason that the accused has advanced for claiming that filing the ex officio indictment against him constituted an abuse of the process of this Court rests on unfairness. The issue raised by this reason is not whether the two indictable offences should be dealt with summarily by the Youth Justice Court. That is so because the accused intends to plead guilty to those offences and there will therefore be no need to determine them, whether summarily before the Youth Justice Court, or at a trial by jury before the Supreme Court. Instead, the real issue reduces to the question whether it would be unfair to the accused to be sentenced on those offences by the Supreme Court, rather than the Youth Justice Court.
• [48] This reason essentially raises a conflict between the accused's personal interests and the public interest. It is clearly in the accused's personal interest that the two-year cap prescribed by s 83(2) be applied to the sentences imposed on him for the two indictable offences. That cap reflects one of the fundamental principles underpinning the youth justice system: recognition of the immaturity inherent in youth offending and the consequent need for rehabilitation to be the paramount sentencing consideration. On the other hand, as the Crown points out, it is in the public interest that the penalties imposed on the accused for those offences reflect their seriousness and the related need for general deterrence and denunciation.
• [49] The court sentencing the accused will therefore have to weigh these competing sentencing considerations. If it ultimately considers that the public interest should prevail and greater emphasis should be placed on general deterrence and denunciation, it is possible it may conclude that a sentence of greater than two years detention or imprisonment is appropriate. If the sentencing proceeds in the Supreme Court it has the powers to achieve that outcome.[34] However, if it proceeds in the Youth Justice Court the cap fixed by s 83(2) of the YJA will prevent that occurring. Hence staying the ex officio indictment and leaving the Youth Justice Court to undertake the sentencing is tantamount to resolving the conflicting personal and public interests mentioned above in favour of the former, namely the accused.
• [50] Viewed in this way, the filing of the ex officio indictment does not, as the accused posits, circumvent the s 83(2) cap. Rather it allows the Court with the requisite powers to decide whether or not a limit of two years detention or imprisonment is the just outcome in all the circumstances of this matter. Given that it will be open to him to submit to the Supreme Court that a two year sentence is the fair and just outcome, allowing that Court to make that determination does not, in my view, cause any relevant unfairness to the accused.
• [51] Finally, it is appropriate to deal, albeit briefly, with the detailed submissions made in relation to the judgments in Maya and Iqbal. As the countering points of distinction identified by the parties amply demonstrate,[35] neither of those decisions assists in determining this matter. Most fundamentally, both involved quite different statutory regimes. As well, Iqbal did not concern a young offender. Furthermore, while Maya did, the following observation of the Court in that matter demonstrates that the absence of a power similar to that contained in s 52(3) of the YJA was a crucial factor: "The position would be different, of course, if the Director had a statutory power to proceed by direct indictment notwithstanding a prior grant of a summary hearing".[36]

• [52] For these reasons, the accused has not established that this is one of those rare occasions where the ex officio indictment issued by the Crown should be stayed as an abuse of this Court's process.
• [53] Accordingly, the accused's notice of motion filed 5 June 2025 is dismissed.
• [54] I will hear the parties as to any question of costs.

[1] See s 3 of the Criminal Code 1983 (NT).

[2] The indictment was signed on 16 October 2024.

[3] See SM v Youth Justice Court & Ors (SM) [2024] NTSC 37 at [14] per Grant CJ.

[4] See Barton v R [1980] HCA 48; (1980) 147 CLR 75 (Barton) at 94-95, Maxwell v R (1996) 184 CLR 501 at 534 and Likiardopoulos v R (2012) 247 CLR 265 at [37].

[5] See, for example, Barton at 95.

[6] [2019] VSCA 117.

[7] See Maya at [6] and [60] to [61].

[8] [2012] NSWCCA 72.

[9] Citing Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 31 per Mason CJ.

[10] See Strickland v DPP (Cth) [2018] HCA 53; (2018) 266 CLR 325 at [248] per Edelman J.

[11] Citing Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529 per Mason CJ Dawson, Toohey and McHugh JJ.

[14] Cf the corresponding ground of distinction that the accused raised with respect to Iqbal at [28] above.

[15] ML v R (ML) [2018] NTCCA 18.

[20] Sections 55(4) and 56A of the YJA.

[24] AK v The Queen [2021] NTCCA 4.

[25] R v Gurruwiwi [2008] NTCCA 2; 22 NTLR 68.

[26] At [33] to [35] excluding passages that are irrelevant for present purposes.

[27] [2021] NTSCFC 1 at [27].

[28] The expression "Court" is defined in s 5 of the YJA to mean the Youth Justice Court but includes the Supreme Court where the context requires.

[31] See the observations at [38] above.

[34] See the review of the Supreme Court's sentencing powers at [39] to [41] above.

[35] See at [28] above re Iqbal and [32] re Maya.