Certiorari - Expedited committal of accused person who pleaded guilty to indictable offences - Whether s 100 of the Justices Act 1902 complied with if statements served on defendant were deficient: or if Magistrate failed to inform defendant that she not required to plead to charge - Whether failure invalidates committal procedure

R v Wong (1995) 16 WAR 219

Re Alison Ruth Robbins SM; ex parte West Australian Newspapers Ltd [1999] WASCA 16

Re Bennett-Borlase; ex parte The Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997

1 TEMPLEMAN J : The applicant, Katherine Elizabeth Landers was charged on 15 October 1998 with stealing a motor vehicle and armed robbery in company. These charges arose from offences said to have been committed in the Kalgoorlie area where Ms Landers first appeared on 15 October before a Stipendiary Magistrate in the Court of Petty Sessions.

2 The charges were factually related and the robbery charge was not one which could be dealt with summarily. The learned Magistrate adjourned the proceedings on 15 October, as he was empowered to do, so that Ms Landers, could obtain legal advice and so that the provisions of s 100 of the Justices Act 1902 could be attended to.

3 Section 100 requires certain things to happen if a charge cannot be dealt with summarily. Included amongst those requirements is a requirement for a number of documents to be served on the defendant. These include a statement of material facts, a copy of any statements signed by the defendant, any record of interview with the defendant, signed or unsigned, or the substance of anything material to the charge said by the defendant to a member of the police force. The Justices Act goes on in s 101 to say:

"...Following the service by the prosecution of the material referred to in section 100(1)" the Justices shall:

(a) tell the defendant he or she is not required to plead to the charge; and

(b) give the defendant the opportunity to plead to the charge.

(2) If the defendant pleads guilty to the charge, the justices shall, without convicting the defendant, commit the defendant to a court of competent jurisdiction for sentence."

4 On 20 October, the matter came back before the learned Magistrate. I infer from the transcript that the Magistrate dealt first with Ms Landers' co-offender who, it seems, pleaded guilty and was remanded for sentencing to the Supreme Court.

5 The Magistrate then dealt with Ms Landers. He asked her if Katherine Elizabeth Landers was her name, and she said that it was. He then put to her the charge relating to the theft of a motor vehicle. Ms Landers pleaded guilty. The Magistrate then put the armed robbery charge in which it was said that Ms Landers had been armed with a dangerous weapon - a knife - and that she had been in the company of others. She was then asked how she pleaded. Ms Landers said, "Pardon, sir?" Counsel then said:

"Sir, could I - sorry, sir, I just think we might have forgotten. Take a seat".

6 The Magistrate then put the charge again. When he reached the point about Ms Landers being armed with a dangerous weapon, namely, a knife, Ms Landers said, "Sir, I wasn't armed with it."

7 Her counsel then said that the matter had better be stood down and that he had better have another talk with his client. The Magistrate then said something which was not fully transcribed, to the effect that he would stand the matter down so that Ms Landers' counsel could have a further talk and explain what was going on. The matter was then recalled apparently after a short interval and Ms Landers' counsel said, "Yes, I think we are all clear now."

8 Again, the Magistrate asked Ms Landers her name and put the charge, to which she pleaded guilty. The matter was then dealt with in an administrative way.

9 On those facts, the application for writ of certiorari is based on two broad submissions.

10 It is not in dispute that there was served on Ms Landers a document entitled Statement of Material Facts and that that was done before the learned Magistrate proceeded with the matter in the way I have just described.

11 However, it is said that the materials were deficient in that it was nowhere recorded that Ms Landers had told the police officers who interviewed her that she had taken part in the offence only as a result of compulsion or duress imposed on her by a co-offender.

12 This omission, it is submitted, has the result that an essential pre-condition to jurisdiction was not satisfied, so that the committal was a nullity.

13 Secondly, it is submitted that because the learned Magistrate did not tell Ms Landers that she was not required to plead to the charge, another essential step in the procedure was omitted so that on that ground also, the committal was a nullity.

14 The principle which arises in cases of this kind was discussed by the High Court in Craig v State of South Australia [1995] HCA 58; (1994-95) 184 CLR 163. The High Court was there concerned with the question whether an inferior court had fallen into jurisdictional error. It is said in the present case that is what happened in the Kalgoorlie Court of Petty Sessions on 20 October last year.

15 At 177 of the report, in their joint judgment Brennan, Deane, Toohey, Gaudron and McHugh JJ said:

"An inferior court falls into jurisdictional error if it mistakenly asserts or argues the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognised that jurisdiction does exist."

16 The Court then gives some examples of the kind of jurisdictional error into which a court might fall. Their Honours then go on to say:

"Less obviously an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain."

17 With those considerations in mind I turn to the first limb of the application; that is, that the requirements of s 100(1) were not complied with because of the deficiency in the materials supplied to Ms Landers.

18 I have no hesitation in concluding that there is no substance to this limb of the application. It seems to me that provided statements are served on a defendant which appear to comply with the requirements of s 100(1), then that is all that a committing Magistrate can be required to be satisfied about. If a situation arises, as is suggested it has here, in which the statement is in fact deficient in some way, I do not see how a Magistrate could possibly be expected to be aware of that.

19 If it were otherwise, it seems to me that there might be something of a lottery involved. A Magistrate would be required to investigate each statement served under s 100(1) to determine its adequacy. That would place an impossible burden on a Magistrate. It cannot have been contemplated by the section.

20 It is accepted by Mr Walker, who appears for Ms Landers today, that no such obligation could be imposed on a Magistrate. However, Mr Walker submits that if in fact the prosecution has in fact failed to comply with the requirements of s 100, then that will inevitably result in a lack of jurisdiction if a Magistrate then commits on those materials.

21 Mr Walker seeks to place reliance on Jones v Moffatt, unreported, SCt of WA (McKechnie J); Library 990196, 31 March 1999. That was an appeal from the Court of Petty Sessions where an accused person had not elected whether to have the matter tried summarily or on indictment. A Magistrate assumed subsequently that an election had been made. McKechnie J said that the error appeared not to have been made by the learned Magistrate who heard the trial, but had occurred earlier.

22 Mr Walker submits that the case demonstrates that even though the trial Magistrate himself made no error, the fact that an error had been made at an earlier stage vitiated the proceedings.

23 The distinction, it seems to me, between that case and this is that the error was made within the court system. It was an error which, with respect to the learned trial Magistrate, should have been discovered because there should have been a record in the court papers that the election had been made, whereas in fact there had not been any such election.

24 In the present case if there was an error it was not made within the court system. It was made by the prosecution in circumstances in which, as I have said, there was no reason for the learned Magistrate to inquire into the accuracy of the written material.

25 I therefore conclude, in relation to the ground based on non-compliance with section 100, that there was compliance within the meaning of s 100. It is sufficient that the statements appeared to be what they were required to be.

26 I then turn to the second limb of the application, namely that Ms Landers was not told by the learned Magistrate that she was not required to plead to the charge. It is not in dispute that that opportunity was not given to Ms Landers.

27 I should also say that it is conceded by Mr Mischin, who appears for the Crown today, that in conducting the hearing on 20 October 1999 the Court of Petty Sessions was sitting as an inferior court and was not acting purely administratively. That concession, it seems to me, is very properly made.

28 Neither does Mr Mischin take issue with the statement of the law in Craig's case, in the joint judgment to which I have already referred. The dispute turns on whether the requirement of s 101 that the justices shall tell the defendant he or she is not required to plead to the charge is "an essential condition of the existence of jurisdiction", to use the expression used in Craig's case.

29 Mr Mischin submits that the requirement is not essential because it has no consequences once the defendant has decided to plead guilty. It then becomes irrelevant, he submits, whether or not the defendant is told that there is no requirement to plead to the charge. Mr Mischin places considerable reliance on a decision in this Court by Wallace J in Carter v Evans and Connell (1990) 3 WAR 94.

30 That was a case in which it was submitted the failure on the part of a Magistrate to read to the defendant the provisions of the Ninth Schedule to the Justices Act invalidated the subsequent committal. That, it was submitted, was an essential precondition to the exercise by the Court of the jurisdiction to commit.

31 The provisions of the Justices Act then in force included a provision that before a defendant could lawfully be required to elect whether to go to trial or have a preliminary hearing, he was to be addressed by the presiding Magistrate in the form of words prescribed in the Ninth Schedule to the Justices Act. That was expressed to be a mandatory requirement in the Justices Act.

"[Mr Connell] has already elected a preliminary hearing. Mr Miller has stressed the mandatory nature of the language used in s 101A of the Act. When the relevant provisions thereof are placed under close analysis, however, it becomes apparent that the terminology used is in the form necessary to advise a defendant, in person, of his rights. That becomes clear when one reads s 101A(1)(a)(i) and (ii). Turning to the provisions of the Ninth Schedule, the contents of Pt A and the last sentence of Pt B confirms the view which I have just expressed. Part C places this opinion beyond contention. The hearing is adjourned to enable the prosecution to make available to the defendant copies of written statements of its witnesses in accordance with s 69(2) of the Act.

And then, after summarising some further matters, his Honour said:

"The last paragraph of Pt C commences with the words: 'If you ... elect not to have a preliminary hearing, you will be required to plead to the charge ....' That provision, in my opinion, further confirms the view expressed above."

33 It is said by Mr Mischin that the relevant provisions of the schedule to which Wallace J referred are no different in substance from the provision of s 101(1)(a) in that in each case the defendant is merely being advised as to his or her rights. There is, however, in my judgment, a distinction between the two cases.

34 I do not have before me the form of the schedule in force when Carter v Evans was decided. This has apparently been amended subsequently. However, it is clear by inference from Wallace J's judgment (and it is said by Mr Mischin, who has an intimate knowledge of the Carter case, having appeared in it as junior counsel) that the relevant provisions have the effect of informing a defendant "this is what will happen next". As Wallace J said, the conclusion of those procedures was the point at which the defendant might elect whether or not to have a preliminary hearing.

35 In those circumstances it is quite clear, in my judgment, that the failure to read the relevant provisions had no consequences in the sense that nothing serious could happen to the defendant if the provisions were not read.

36 In the present case it seems to me that the election by an accused does have consequences. If a defendant pleads guilty to a charge, then the consequence is that in due course that defendant will appear before the appropriate court - in the present case, the Supreme Court - for sentencing. There is no opportunity, it seems, as the law presently stands, for a defendant who has pleaded guilty in the circumstances of this case to change his or her plea. I am told that that is a matter which is to be considered by the Court of Criminal Appeal on 3 September but I must deal with the case on the law as it stands today.

37 The question is whether, as a matter of construction, the requirement on the justices to tell the defendant that he or she is not required to plead to the charge is an essential requirement, or whether it is merely, in substance, an administrative matter.

38 It seems to me, although I can see that the matter is eminently arguable, that the requirement is an essential one. Section 101 permits a defendant to have the proceedings expedited if the various matters referred to in s 100 are complied with.

39 One frequently sees in cases of this kind that shortly after an a suspect is detained, he or she will be interviewed by police officers, who will form a view as to that person's guilt and will say at the conclusion of the interview, "You will be charged with such-and-such an offence." I am not in any way being critical of police officers for taking that view or adopting those procedures. That is their job. The police officers will then tell the accused person that he or she is to appear, after quite a short interval, before a Justice by whom the matter will be dealt with. The accused person then appears before the justice.

40 In those circumstances it seems to me that even when an accused person is legally represented, there may well be a feeling of inevitability about the conviction on the relevant charge in the mind of that person, coupled with a desire to get the matter over with as quickly as possible, and therefore to plead guilty.

41 It seems to me that the requirement to tell a defendant that he or she is not required to plead to the charge in those circumstances is essential because it requires someone in very great authority in the overall scheme of things - that is, the presiding Justice or the stipendiary Magistrate - to make it plain to the defendant that he or she is not required to plead. It seems to me that that is a very important safeguard because it may well inform a defendant, perhaps for the first time (and indeed, for the last time) that there is no inevitability about the outcome of the proceedings: and that if there is a defence, then the defendant will be given an opportunity to put that defence before a court of competent jurisdiction in due course.

42 In those circumstances it seems to me that this is not merely an administrative requirement which does not matter. It is, I think, a fundamental and essential requirement if the expedited procedure is to be followed.

43 It is submitted by Mr Mischin that if this is an essential requirement, then it is equally important even if the accused person pleads not guilty without being advised of his or her rights. Mr Mischin submits that in those circumstances if the accused person has not been told that he or she is not required to plead, then there must equally be an excess of jurisdiction on the part of the Court if it proceeds any further with the matter.

44 I do not accept that submission. It seems to me that if an accused person pleads not guilty without being advised of his or her rights, then the matter simply does not fall within s 101. It falls within s 101A and following, which is the conventional course followed by an accused person who does not submit to the expedited committal procedures.

45 Then it is submitted by Mr Mischin that Ms Landers got what she wanted. It is submitted that she pleaded guilty. She wanted to plead guilty, she apparently had legal advice: and that therefore it would be wrong to allow her to change her mind in the present circumstances.

46 That seems to me, with respect, to involve speculation because I do not know and cannot know what might have happened if the learned Stipendiary Magistrate had said to Ms Landers at the crucial point, "Do you understand that you do not have to plead to this charge?"

47 The reasons for Ms Landers' willingness to plead to the charge do not matter on the view that I take. If there is a mandatory requirement, as a matter of statutory construction, as I believe there is, then it matters not what might or might not have happened had the requirement been complied with when in fact it was not complied with.

48 Those matters do perhaps go to discretion, it being conceded by Mr Walker that there may be an element of discretion, if I come to the view that there has been an excess of jurisdiction, in determining whether or not to quash the committal.

49 This is a difficult question because it is to a certain extent bound up with the first limb of the application. There is certainly an inference from the transcript of the hearing on 20 October that Ms Landers' counsel advised her to plead guilty. I stress that as purely an inference which I draw from the way in which the matter unfolded.

50 It is of course said that the materials which had been provided by the prosecution were deficient because they failed to make reference to a valid defence. Accepting that to be the case for the purpose of the argument, one could see that in those circumstances Ms Landers might well have been advised to plead guilty. Had the materials not been deficient, the advice might well have been different.

51 It is quite impossible to go into that in any detail or even at all. However, I am troubled by the existence of those circumstances and for those reasons, I have come to the conclusion that I should exercise my discretion and quash the order for committal on the basis that there was non-compliance with the provision of s 101(1)(a) of the Justices Act. There was therefore an excess of jurisdiction by the stipendiary Magistrate and in the exercise of my discretion, I should grant the relief sought.