R v Ware [2019] TASSC 30

Judiciary Act 1903 (Cth), s 68(1).

Putland v The Queen [2004] HCA 8, 218 CLR 174, referred to.

Judgment Number: [2019] TASSC 30

1. The accused has been committed for trial on a number of charges under Commonwealth legislation relating to the importation of garlic. Her counsel has applied for the charges to be remitted to the Magistrates Court pursuant to s 308 of the Criminal Code. The Crown contends that s 308 does not apply to charges under the relevant Commonwealth legislation.
2. The Crown contends that the accused imported garlic into Australia on 21 relevant occasions. In respect of the first three occasions, which were between August and November 2015, she has been charged with breaching s 67(3) of the Quarantine Act 1908 (Cth). In respect of the other 18 occasions, which were from October 2016 to March 2017, she has been charged with breaching s 186(4) of the Biosecurity Act 2015 (Cth). The maximum penalty for each of those offences is imprisonment for 10 years, or a fine of 2000 penalty units, or both.
3. Section 308(1) of the Criminal Code reads as follows:

"(1) In any case in which it appears to a judge that the punishment provided in this section will be adequate for the circumstances of the particular case, he may order that the accused shall be tried summarily before a magistrate as hereinafter provided."

1. Section 308(4) empowers a magistrate "to inflict a sentence of a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year" when a matter is remitted under s 308(1).
2. This Court has jurisdiction in respect of Commonwealth criminal cases by virtue of s 68(1) of the Judiciary Act 1903 (Cth). That subsection reads as follows:

"(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(b) their examination and commitment for trial on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section."

1. The accused contends that s 308 of the Criminal Code is a law respecting the procedure for the summary conviction of persons charged with offences that falls within the scope of s 68(1)(a), and that it applies to her by virtue of that provision. The Crown contends that s 68(1)(a) does not apply because there are Commonwealth legislative provisions that are inconsistent with s 308, and leave no room for its operation.
2. It is significant that s 68(1) provides that the laws of a State or Territory only apply to Commonwealth cases "so far as they are applicable" to persons charged with Commonwealth offences. The effect of that qualification was considered by the High Court in Putland v The Queen [2004] HCA 8, 218 CLR 174. The issue in that case was whether s 52(1) of the Sentencing Act (NT), which empowered a court to impose a single term of imprisonment for two or more offences, was applicable to Commonwealth cases by virtue of s 68(1). Gleeson CJ said, at [7]:

"The laws of a State or Territory to which s 68(1) refers apply 'so far as they are applicable'. Although there is not in s 68, as there is in s 79 of the Judiciary Act, an express qualification to the operation of the provision by the use of the words 'except as otherwise provided by the Constitution or the laws of the Commonwealth', in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. The meaning of 'otherwise provided' was considered in Northern Territory v GPAO. Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was 'complete upon its face' and can 'be seen to have left no room' for the operation of s 52." [Footnotes omitted.]

1. The principal judgment in that case was delivered by Gummow and Heydon JJ, with whom Callinan J agreed. Their Honours' reasoning was consistent with the view of Gleeson CJ as to the meaning and effect of the words "so far as they are applicable" in s 68(1).
2. Questions as to whether State laws have been "picked up" by Commonwealth legislation have been considered in a number of significant High Court cases. In Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 56, the issue was whether a State limitation provision was picked up by s 64 of the Judiciary Act, which relates to civil suits to which the Commonwealth is a party. The High Court said, at 64:

"... where a Commonwealth legislative scheme is complete upon its face, s 64 will not operate to insert into it some provision of State law for whose operation the Commonwealth provisions can, when properly understood, be seen to have left no room."

Similar comments were made by McHugh and Gummow JJ in R v Gee [2003] HCA 12, 212 CLR 230 at [62], and by French CJ, Gummow, Hayne, Kiefel and Bell JJ in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1, 244 CLR 638 at [25]. Gleeson CJ was quoting from Moorebank in the last sentence in the passage that I have quoted from Putland (above).

1. Section 4J of the Crimes Act 1914 (Cth) contains provisions for Commonwealth indictable offences to be heard and determined by courts of summary jurisdiction when the maximum penalty is imprisonment for a period not exceeding 10 years. The section reads as follows:

"(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.

(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:

(a) where the offence is punishable by imprisonment for a period not exceeding 5 years a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or

(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

(4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.

(5) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.

(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):

(a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;

(b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or

(c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.

(7) This section does not apply to an offence against:

(b) Division 80 of the Criminal Code (treason, urging violence and advocating terrorism or genocide); or

(c) Division 82 of the Criminal Code (sabotage); or

(d) Division 91 of the Criminal Code (espionage); or

(e) Division 92 of the Criminal Code (foreign interference)."

1. There are two significant differences between the regime for the summary disposal of indictable offences provided for in s 4J, and the regime provided for by s 308 of the Criminal Code:
   • Under s 4J(1), an indictable offence may be heard and determined by a court of summary jurisdiction only with the consent of both the prosecutor and the defendant. However s 308 permits summary trial without the consent of the prosecutor. The consent of the accused is required by s 308(7), but there is no such requirement as to the consent of the prosecutor.
   • When an indictable offence is heard and determined summarily under s 308, the maximum penalty that a magistrate may impose, as specified by s 308(4), is "a fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year". That provision refers to Tasmanian penalty units: Penalty Units and Other Penalties Act 1987. However s 4J(3) fixes different maximum penalties. Under s 4J(3)(a), where the offence is punishable on indictment for a period not exceeding 5 years, the maximum sentence is 12 months' imprisonment, or 60 penalty units, or both. Under s 4J(3)(b) where the offence is punishable on indictment by imprisonment for more than 5 years but not more than 10 years, the maximum sentence is 2 years' imprisonment, or a fine of 1200 penalty units, or both. The penalty units referred to in s 4J are Commonwealth penalty units: Crimes Act (Cth), s 4AA. Section 4J(3) permits both imprisonment and a fine, but s 308 does not. Section 4J(3) specifies maximum penalties for single charges, whereas s 308 specifies maximum penalties for "any case", and a single case will often involve a number of charges.
2. Counsel for the accused submitted that s 4J and s 308 do not conflict and can operate together. He argued that s 4J applies prior to the making of an order committing an accused person for trial, and that s 308 applies after such an order is made. If that submission is correct, a strange situation would exist in any case where the defendant wanted a trial in a court of summary jurisdiction and the prosecutor was not agreeable. A magistrate would be obliged to commit the defendant for trial, but a judge would then have a discretion to override the prosecutor's wishes and send the defendant back to the lower court, where a more lenient penalty regime would be in force than that prescribed by s 4J(3). That situation would be absurd. In my view, the provisions of s 4J of the Crimes Act as to the election of summary trial for Commonwealth indictable offences, and as to the penalties for Commonwealth indictable offences tried summarily, constitute a scheme that is "complete upon its face" and, by implication, has "left no room" for the operation of s 308.
3. At the hearing of the s 308 application, counsel drew my attention to the decision of the Victorian Court of Appeal in Nguyen v The Queen [2012] VSCA 297, 226 A Crim R 405. In that case the Court of Appeal transferred some charges relating to indictable Commonwealth offences to the Magistrates' Court of Victoria, relying on s 168 of the Criminal Procedure Act 2009 (Vic). Their Honours were aware of s 4J of the Crimes Act. Section 168 permitted the Supreme Court or the County Court to order the transfer to the Magistrates' Court of a proceeding for a charge for an indictable offence that may be heard and determined summarily, provided the accused consented to the transfer. The section is very similar to Tasmania's s 308. However I do not regard that case as authority for the proposition that s 68(1) of the Judiciary Act picks up State laws for the transfer of indicatable offences to courts of summary jurisdiction. I regard that case as turning on its own facts, which were unusual. The appellant had been charged with two serious drug offences and four additional offences. The four additional charges were mistakenly regarded by the parties as summary charges, and transferred to the County Court for summary disposal by that Court. The appellant was convicted and sentenced, and then appealed to the Court of Appeal, where it was realised that the transfer order should never have been made, and that the charges belonged in the Magistrates' Court. Both parties consented to those charges being transferred back to the Magistrates' Court. The Court of Appeal concluded that s 168 empowered it to make the transfer order in the circumstances. The charges in question were charges of indictable offences. They belonged in the Magistrates' Court because, at the time they were sent back to it, no order had been made by a magistrate committing the defendant/appellant for trial on any of the charges, nor had summary disposal been elected under s 4J(1).
4. From another perspective Nguyen is distinguishable because the Victorian legislation concerning transfers to a lower court did not contain a provision restricting the sentencing powers of a magistrate. There was no inconsistency between the State legislation and the provisions as to maximum penalties in s 4J(3).
5. For the reasons stated above, I consider that I do not have the power to order summary trial under s 308(1) in this case. I have therefore decided to refuse the application.