Pearce v Cocchiaro

High Court of Australia|1977-07-01|Before: Aickin JJ, Gibbs J

For the reasons I have given I consider that the special magistrate in the present case was acting within his jurisdiction in hearing and determining the information. I would allow the appeal, set aside the judgment of the Full Court of the Supreme Court, order that question (1) be answered "Yes", and remit the matter to the Supreme Court to proceed accordingly.

I agree with the reasons for judgment of Gibbs J. and would accordingly allow this appeal.

I agree with the reasons for judgment which have been prepared by Gibbs J. and with his conclusion.

Section 273 (2) of the Bankruptcy Act 1966 Cth, as amended, provides that where proceedings for an offence punishable either on indictment or on summary conviction " are brought in a court of summary jurisdiction, the court may either determine the proceedings or commit the defendant for trial, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offence". Section 273 (2) discloses a legislative intent that a court of summary jurisdiction under the provisions of the Justices Act, 1921 S.A. (s. 4 (1), (3)) has power to determine summarily the proceedings against the respondent. It is irrelevant that the offences are not otherwise cognizable under the Justices Act (see s. 120; 106a). The provisions of the Justices Act bring a court constituted by the special magistrate within the description "court of summary jurisdiction" used in s. 273 (2).

The respondent argued that neither of the procedures under the Justices Act can be used for the purposes of s. 273 (2) because the procedure by complaint is not available for indictable offences, and if the procedure by information is used, the court is then not a court of summary jurisdiction because, until the magistrate decides to determine the proceedings rather than commit for trial, the proceedings are administrative rather than judicial. This approach to s. 273 (2) would exclude the very tribunals it contemplates from the expression, "courts of summary jurisdiction".

Whether federal laws which directly or indirectly provide for non-jury trial of serious offences against the laws of the Commonwealth can stand with s. 80 of the Constitution is, in my opinion, questionable (I referred to this in Beckwith v. The Queen [5] ). The offences in this case were indictable. The maximum punishment is three years' imprisonment (ss. 269, 270), although s. 273 (2) prohibits imposition of imprisonment for more than one year if the proceedings are determined summarily. No argument based on s. 80 of the Constitution was advanced. I decide this case without taking account of the section.

The question "Has a court of a Summary Jurisdiction in South Australia jurisdiction to hear and determine on information charging offences against the Bankruptcy Act 1966?" should be answered, "Yes".

I agree with the reasons for judgment of Gibbs J. and would accordingly allow the appeal.

High Court of Australia Gibbs, Stephen, Jacobs, Murphy and Aickin JJ. Pearce v Cocchiaro [1977] HCA 31

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