Markisic & Anor v Vizza & Ors

Markisic & Anor v Vizza & Ors - [2001] NSWSC 1155 - NSWSC 2001 case summary — Zoe

[8]

7 On 29 September 1998 the Full Court of the Family Court delivered judgment in the appeal. The Full Court issued a warrant to take possession of the child and dismissed the second prosecutor's appeal against the decision of Rowlands J. 8 In order to protect the child from being removed from Australia by the second prosecutor, the court issued a warrant authorising and directing officers of the Australian Federal Police to take possession of the child and to deliver the child to the Department of Community Services. The order was to take effect forthwith. The Australian Federal Police executed the warrant on 29 September 1998. The child was delivered to an officer of the Department of Community Services who subsequently handed the child over to the case officer who took the child to the nominated foster parents. 9 On 13 October 1998 the plaintiff's application for the stay of the decision of Rowlands J was dismissed by the High Court. On 14 October 1998, the child Elena Markisic and her mother returned to Macedonia on a Qantas flight. 10 By Notice of Motion, filed 5 November 2001, the Second, Sixth, Seventh and Ninth Defendants seek that the prosecutor's Amended Summons be struck out on the grounds that it constitutes an abuse of process. It is submitted that this Court is not the appropriate forum for the proceedings. The Second, Sixth, Seventh and Ninth Defendants also seek that the prosecutors pay their costs. By Notice of Motion, filed 5 November 2001, the Third, Fourth, Fifteenth and Sixteenth Defendants also seek that the Amended Summons be struck out and that the prosecutors pay their costs. Also by Notice of Motion filed on 7 November 2001, the Tenth to Fourteenth Defendants inclusive seek that the Summons and the Amended Summons be struck out on the basis that this Court has no jurisdiction to hear the matters pleaded. Alternatively the Tenth to Fourteenth Defendants inclusive seek that the Summons and the Amended Summons be struck out under Part 15 Rule 26 of the Supreme Court Rules it being submitted that it discloses no cause of action; and has a tendency to cause embarrassment; and or that it is otherwise an abuse of process. The Tenth to the Fourteenth Defendants also seek that the prosecutors pay their costs.

[13]

16 The proceedings that may be taken before this Court in its summary jurisdiction are provided by ss 475A and 475B together with Schedule 10 of the Crimes Act 1900 (NSW). 17 Section 475A provides: (1) Subject to subsection (2) and section 475B but notwithstanding any other law, proceedings for any offence mentioned in the Tenth Schedule may, pursuant to an application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction. (2) Proceedings for an offence mentioned in paragraph (f) of the Tenth Schedule may not be taken under subsection (1) unless, in the application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 in respect of the offence, the person against whom the offence is charged is also charged with an offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule. (3) A person may be convicted of an offence mentioned in paragraph (f) of the Tenth Schedule notwithstanding that the person is not convicted of the offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule that was also charged in the application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 in respect of the offence mentioned in paragraph (e) of that Schedule. (4) The penalty that may be imposed by the Supreme Court in its summary jurisdiction on a person convicted of an offence mentioned in the Tenth Schedule is the penalty provided by law (other than this subsection), except that any fine imposed shall not exceed 100 penalty units and any term of imprisonment imposed shall not exceed 10 years, whether the penalty imposed is either a fine or a term of imprisonment. (5) Subsection (1) does not prevent proceedings for any offence referred to in that subsection from being taken otherwise than before the Supreme Court in its summary jurisdiction. (6) The reference in subsection (1) to the Attorney-General or the Director of Public Prosecutions includes, in relation to any proceedings, a reference to any person who is authorised in writing by the Attorney-General or Director to act, for the purposes of that subsection, on behalf of the Attorney-General or Director in relation to those proceedings as in relation to proceedings for all offences mentioned in the Tenth Schedule. (7) A document purporting to be signed: (a) by the Attorney-General or the Director of Public Prosecutions and to authorise a person specified in the document to act as referred to in subsection (6) is, in any proceedings referred to in subsection (1), admissible in evidence as prima facie evidence that the person is authorised so to act, or (b) by the Attorney-General or the Director of Public Prosecutions for the purpose of any proceedings referred to in subsection (1) is admissible in evidence as prima facie evidence that the Attorney-General or the Director of Public Prosecutions signed the document. 18 Section 475B provides:

[14]

(1) Section 475A (1) applies only if, upon the completion of the pre-trial procedures in any proceedings in respect of an offence to which an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relates, being procedures prescribed by rules made under that Act, the defendant makes an election to be tried for that offence in the Supreme Court in its summary jurisdiction. (2) Notwithstanding subsection (1) where the defendant in any proceedings is the subject of an application (not being an application referred to in subsection (3)), under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relating to 2 or more offences, he or she is not entitled to make an election under subsection (1) unless he or she makes it in respect of every offence to which the application relates. (3) Where 2 or more defendants are the subject of an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 , an election under subsection (1) made by one of the defendants in respect of any offence to which the application relates and alleged to have been committed by him or her has no effect for the purposes of this section unless such an election is made by that defendant in respect of every other offence to which the application relates and which is alleged to have been committed by him or her and by each of the other defendants in respect of every offence to which the application relates and which is alleged to have been committed by each of them. (4) A reference in subsection (1), (2) or (3) to an offence to which an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relates does not include a reference to such an offence to which the person charged with the offence has, upon such an application, pleaded guilty. (5) Where the defendant does not make an election under subsection (1): (a) the Supreme Court shall order that the proceedings for the offence to which the election relates shall be tried in the Supreme Court otherwise than in its summary jurisdiction, and (b) the provisions of section 475A (1) shall cease to apply to or in respect of the proceedings for that offence. (6) A person tried pursuant to an order under subsection (5) (a) shall for all purposes, be deemed to be tried on indictment and if convicted to have been convicted on indictment. (7) A reference in this section to a plea of guilty does not include a reference to such a plea if the plea has been withdrawn or has not been accepted. 19 Schedule 10 of the Act provides: 1. Offences punishable by the Supreme Court in its summary jurisdiction (a) any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 173, 174, 175, 176, 176A or 179 of this Act; any offence arising under section 185A (1) or (2) of this Act; the common law offence of attempting to commit any offence arising under section 185A(1) of this Act. (b) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 124, 374A (1) or (3), 374B, 374C (2), 374G, 375 (2), 375A or 376 (2) of the Companies Act 1961. (c) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 14 (1), 27, 59 (7), 109 (1) or (2), 110, 111, 112 (1), (2), (3), (4), (5), (6) or 121 (1) of the Securities Industry Act 1975. (d) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 70, 71 (1) or (3), 72 (1) or 73 of the Securities Industry Act 1970. (d1) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: (i) section 37 (1), 73 (7), 124 (1) or (2), 125, 126, 128 (1), (2), (3), (4), (5) or (6) or 137 of the Securities Industry (New South Wales) Code, or (ii) section 16(1) of the National Companies and Securities (State Provisions) Act 1981. (e) The common law offence of conspiracy to cheat and defraud. (f ) Subject to section 475A(2) of this Act, any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under: (i) section 165, 168, 169, 170, 172, 178A, 178BA, 178BB, 178C, 184A, 185, 327, 330 or 335 of this Act, (ii) section 47(1), 51 (3), 64 (10), 86 (1), 163 (1) (being an offence committed as referred to in section 163 (3)), 179A (1), 180J (1) or (1A),180W or 374F (1) or (2) of the Companies Act 1961, (iii) section 12 (6), 25 (1), 54 (1) or 58 (1), (2), (3), or (4) of the Securities Industry Act 1975, (iv) section 14(6), 34(1), 68 (1) or 72 (1), (2), (3) or (4) of the Securities Industry (New South Wales) Code, (v) section 44 or 53 of the Companies (Acquisition of Shares) (New South Wales) Code, or (vi) section 108 (1), 123 (11), 174 (1), 276 (1) (being an offence committed as referred to in section 276 (1)(b)), 310 (1, 559 or 560 of the Companies (New South Wales) Codes.

[16]

"(2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) a summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings concerned therewith, shall subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth." 25 Accordingly s 68(2) operates to confer on this Court, and other State and Territory Courts, "like jurisdiction" with respect to Commonwealth offences. Sections 68(1) and 79 of the Judiciary Act 1903 (Cth) "incorporate State enactments by reference and cause them to become, for the purpose of the exercise of federal jurisdiction,' surrogate Commonwealth law'": Mason P in Solomons v District Court of New South Wales & Ors (2000) 49 NSWLR 321 at 324 quoting Murphy J in Maguire v Simpson (1977) 139 CLR 362 at 408. Accordingly regard must be had to any provisions of the relevant Commonwealth Act creating the offence to ascertain whether it provides for summary disposal of the matter. 26 The Crimes Act 1914 (Cth) creates the framework for determining whether an offence against a Commonwealth law is either "summary" or "indictable", and how indictable offences may be dealt with summarily: ss 4G, 4H and 4J. An offence against a Commonwealth law punishable by fine only, or by imprisonment for a period not exceeding 12 months, is a summary offence: s 4H. All other matters are indictable offences: s 4G. An indictable offence against a Commonwealth law, being punishable by imprisonment for a period not exceeding 10 years, may be heard and determined "by a court of summary jurisdiction" but only with the consent of the prosecutor and defendant: s 4J. The consequence of the framework provided by the Crimes Act 1914 is that unless the Act imposing the liability makes a specific provision to the contrary, an indictable offence against a law of the Commonwealth may only be heard and determined by a "court of summary jurisdiction" with the consent of the prosecutor and the defendant: s 4J. The Supreme Court is not relevantly a "court of summary jurisdiction," a matter discussed below. 27 The significance of the different procedures for the prosecution and hearing of summary and indictable offences has long been recognised by the law. In Munday v Gill (1930) 44 CLR 38 at 86 Dixon J said: "There is, however a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the bar of the Court 'in his own proper person and being demanded concerning the premises in the indictment specified and charged upon him how he will acquit himself upon the Country and he who prosecutes for our Lord the King doth like.' In the other the defendant is given sufficient opportunity to appear which (unless he be in custody because it is considered that he will abscond) he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is to dealt with by those assigned to keep the peace, who judge both law and fact. 'There is' says Blackstone, 'no intervention of a jury, but the party accused is acquited or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice' (4 Comm. 280)." 28 Unless provided for by statute an alleged offence may not be prosecuted summarily. Breaches of the Family Law Act 1975 (Cth) 29 Section 65Z, Division 6 of Sub-Division E of Part VII of the Family Law Act provides: "(1) If proceedings (the Part VII proceedings) for the making of a residence, contact or care order are pending, a person who is a party to the proceeding, or who is acting on behalf of, or at the request of a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2). Penalty: Imprisonment for 3 years. (2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if: (a) it is done with the consent in writing (authenticated as prescribed) of each party to the Part VII proceedings; or (b) it is done in accordance with an order of a court made, under this part or under a law of a State or Territory, after the institution of the part VII proceedings."

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