Adlem v The Queen

[1999] WASCA 1

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   ADLEM -v- R [1999] WASCA 1

CORAM:   PIDGEON J

ANDERSON J
HEENAN J

HEARD:   16 & 25 FEBRUARY 1999

DELIVERED          :   5 MAY 1999

FILE NO/S:   CCA 19 of 1998
CCA 168 of 1998

BETWEEN:   SHAUN DAVID ADLEM

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Jurisdiction - Adult convicted in District Court of offences committed when a child - Exclusive jurisdiction of Children's Court in such cases - Right to elect trial by District Court - Appellant not informed of right - Consideration of provisions of The Criminal Code s576

Legislation:

Children's Court of Western Australia Act 1988
Criminal Code 1913 (WA) s575, s576
Criminal Code Act 1902 (WA)
Criminal Code 1899 (Qld) s557, s558
Courts of Session Act 1921 s6, s13
District Court Act 1969
Ordinance 9 Vic. No 4 (1845)

Result:Appeal Allowed

Representation:

Counsel:

Applicant:     Mr D P A Moen

Respondent:     Ms G A Archer

Solicitors:

Applicant:     Julie Wager

Respondent:     State Director of Prosecutions

Case(s) referred to in judgment(s):

Simons v The Queen (1953) 37 Cr App Rep 120

Case(s) also cited:

C (A Child) (1995) 83 A Crim R 561

Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994

McKenna v R (1992) 63 A Crim R 452

Pfenning v The Queen (1995) 77 A Crim R 149

R (1994) 71 A Crim R 95

R v Carter (Magistrate's Court Ex parte City Council, The Times, 24 February 1987)

R v S (A Child) (No 2) (1992) 60 A Crim R 235

R v Symonds 37 Cr App Rep 120

S v The Queen (1991) 5 WAR 391

Wood v The Queen, unreported; CCA SCt of WA; Library No 940723; 21 December 1994

1.     PIDGEON J:  I agree with the reasons to be published by Anderson J and Heenan J and with the orders proposed by Anderson J.

2.     ANDERSON J:  On 2 February 1998, the applicant was presented in the District Court on an indictment charging him with four offences of unlawful and indecent dealing in relation to two children under the age of 14 years.  The indictment pleaded that these offences had occurred on "a date unknown between 14 December 1982 and 15 December 1983".  The applicant was born on 22 July 1967, so that at the time the offences charged in the indictment are said to have occurred he was, at the most, 16 years of age.  That made him "a child" for the purposes of the Children's Court of Western Australia Act 1988.  See the definition of "child" in s3.

3.     When he was arraigned in the District Court, he pleaded not guilty to each of the four charges and he was tried and convicted on all counts and sentenced to 3 years' imprisonment in respect to each matter, the four sentences to be served concurrently.

4.     He appeals against the convictions and seeks leave to appeal against the sentences.  There is also an application for an extension of time within which to apply for leave to appeal against sentence.  By an amendment to the grounds of appeal, the applicant pleads as follows:

"3.The proceedings which took place in the District Court were a nullity, and as such the conviction must be quashed.

Particulars

(a)The applicant had been charged in the Court of Petty Sessions, at Perth when in fact he should have been charged on complaint in the Children's Court at Perth;

(b)The applicant was 14 years of age at the time when the alleged offences were said to have been committed;

(c)The applicant never appeared in the Children's Court and had never elected to be dealt with in the District Court, Perth.

(d)-

(e)The charges the subject of the appeal should have been dealt with in the Children's Court, and the applicant should have had the right to make such an election, but such an election was not available to the applicant, and he was deprived of making such an election."

5. The proposition which underlies this plea is that, by reason of s19(2) of the Children's Court of Western Australia Act 1988, the District Court of Western Australia had no jurisdiction to try the applicant unless certain steps were taken; and those steps were not taken.

6. The starting‑point is s19 of the Children's Court of Western Australia Act 1988 which provides:

"19(1)Subject to Division 2 of Part 5 of the Young Offenders Act 1994, to sections 78, 128 and 132 of the Sentencing Act 1995, and to this Part, the Court has exclusive jurisdiction to hear and determine a complaint of an offence alleged to have been committed by a child.

(2)Notwithstanding that a person has attained the age of 18 years, the jurisdiction of the Court extends, and the provisions of this Act apply, to proceedings in respect of an offence committed, or allegedly committed, by the person before attaining the age of 18 years."

7. The definition of "child" in s3 extends to "(c) any boy or girl dealt with under section 19(2)". There is no definition of "boy or girl".

8. The submission made on behalf of the applicant is that the combination of these legislative provisions means that, although he is now 32 years of age, he is a "child" for the purposes of the Act. He may not be tried in any other court unless pursuant to the provisions of ss19B or 19D of the Act. Section 19B is the section which gives a "child" charged with an indictable offence a right to elect to have the charge dealt with by the Supreme Court or the District Court. The provisions require the Children's Court to inform the child of the right of election and, should an election be made, to commit the child for trial in one or other of those courts. In the event that the child does not make an election, there are provisions to facilitate the trial of the indictable offence in the Children's Court.

9. Section 19D is the provision whereby the court may transfer a charge to a Court of Petty Sessions of its own motion. That section is in the following terms:

"19DNotwithstanding section 19B, where a person who is charged with an indictable offence that is alleged to have been committed when the person was under the age of 18 years has attained the age of 18 years, the Court, instead of hearing and determining the charge of the offence, may, having regard to -

(a)the seriousness of the offence;

(b)the existence of an adult co‑offender;

(c)the effluxion of time since the offence;

(d)the fact that the person is charged before a court of petty sessions with other offences; or

(e)any other good cause,

order the transfer of the complaint to a court of petty sessions to be dealt with according to law and the courts of petty sessions shall have jurisdiction accordingly."

10. This statutory regime seems to me to leave no room for argument that complaints against persons of offences allegedly committed before they attained the age of 18 years must first be made in the Children's Court. In appropriate cases - and the case in question would, no doubt, be one - the court would transfer the matter of its own motion to a Court of Petty Sessions. Alternatively, it could call upon the accused to elect and then proceed to conduct a committal pursuant to s19B(2). They would seem to be the only means by which a court other than the Children's Court could obtain jurisdiction to try a child. None of that happened in this case. Unless there is a saving provision, the indictment presented in the District Court will have to be quashed and the convictions obtained on that indictment set aside.

11. It was submitted on behalf of the Crown that the relevant saving provisions are ss575 and 576 of the Criminal Code.  These sections are set out in the judgment of Heenan J.  In my opinion, the sections are not applicable to confer jurisdiction on courts other than the Children's Court in respect of proceedings against a person who is within the extended definition of "child" in the Children's Court Act.  The sections assume that a court of criminal jurisdiction, that is, a court in Western Australia with authority to try a person for committing an offence against the criminal law, may have a territorial limitation upon its jurisdiction.  That notion has historical origins, as Heenan J has pointed out.  Whilst the Western Australian Criminal Code was based on the Queensland Criminal Code, the administration of the criminal law in Western Australia had a somewhat different historical development.  Crimes committed in Queensland came within the statewide jurisdiction of the Supreme Court and within the jurisdiction of the circuit court of the district in which the crime was committed.  In Western Australia, non‑capital crimes which were committed outside Perth were tried by Courts of General Session created by an 1845 Ordinance, 9 Vic No 4.  The jurisdiction of Courts of General Session was not territorially limited.  By s2 of the Ordinance it was provided that:

"Courts of General Sessions of the Peace so appointed for such districts shall be Courts of Record, and shall be held before any two or more Justices of the Peace of the said colony, whereof the Chairman or Deputy Chairman, as hereinafter mentioned, shall be one, and shall have power to hear and determine all felonies whatsoever not punishable with death, including forgery and perjury at Common Law and all other misdemeanours whatsoever committed in any part of the said colony, and whether the same shall have been committed before or after the passing of this Ordinance …"

12. When the Queensland Criminal Code was adopted in Western Australia in a modified form by the passing of the Criminal Code Act 1902, ss554 and 555, the precursors of ss575 and 576, were included. They are in pari materia with what were ss557 and 558 of the Queensland Code. 

13.    In the 11 years which followed the adoption of the Criminal Code, many changes were made to it.  A new Code was compiled in 1913 and adopted by the Criminal Code Compilation Act 1913.  In the compilation of the new Code amendments were made to delete anomalies that were found to exist in the original Code.  There were, for example, deeming provisions as regards jurisdiction which could not possibly have had any practical effect.  One example was s296, the effect of which was to deem a crime to have been committed in the place in which the accused was apprehended or in custody, although the crime was committed in Western Australia.  On its face, the provision purported to confer jurisdiction upon foreign courts in respect to crimes committed in Western Australia.  Clearly the Western Australian legislature did not have the power to confer jurisdiction on a court in another State and the section had no useful operation.  The explanation for anomalies such as this is that the provisions of certain Imperial statutes, some with extra territorial reach, were adopted verbatim as part of the Criminal Code.

14.    Whilst substantial work was done to rid the new Code of anomalies and functionless provisions, the sections in question, that is, ss554 and 555 were retained as ss575 and 576 respectively. It is not easy to know why this was so. The piece‑meal development of the administration of criminal justice in Western Australia may have given rise to doubts concerning the limitation of jurisdiction at some levels and in the case of some magisterial appointments. The early ordinances authorising the appointment by the Governor of Justices of the Peace and Resident Magistrates empowered the Governor to appoint Justices for the State of Western Australia or for particular magisterial districts. There may have been doubts as to whether a Justice of the Peace appointed for a particular district, with authority to preside in the Court of General Session within that district only, was possessed of unlimited territorial jurisdiction. However that may be, eight years after the adoption of the new Criminal Code in 1913, the Courts of Session Act 1921 was enacted which established Courts of Session for "Divisions".  The territorial jurisdiction of these courts actually was limited to the boundaries of the Division for which the particular court was proclaimed:  Courts of Session Act, ss6, 13. As a result, ss575 and 576 of the Code came, perhaps coincidentally, to have a useful operation.  This was the position until the passing of the District Court Act 1969 which repealed the Courts of Session Act 1921 and abolished Courts of Session.  In their place the District Court was established with criminal jurisdiction which was not territorially limited.

15. This is not intended by any means to be an exhaustive examination of the development of the administration of criminal law in Western Australia, but I think so far as it goes it does reveal that ss575 and 576 are remnants of history. I repeat that, in my opinion, the sections do not apply to confer on any court, other than the Children's Court, jurisdiction to try persons within the extended definition of "child" in the Children's Court Act, except upon the conditions contained in that Act.

16.    In my opinion, there should be an order setting aside the verdicts upon the indictment and remitting the matter to the Children's Court to be dealt with according to law.

17.    HEENAN J: On 3 February 1998 after trial by jury in the District Court at Perth the appellant was convicted on four charges of indictable offences all of which were said to have been committed on the one day between 14 December 1982 and 15 December 1983.  As he was born on 22 July 1967 the appellant was either 15 or 16 years old at the time of the alleged offences and 30 years old when he was tried.

18. By reason of the provisions of sections 19(1), 19(2), 19A and 19B(1) and (3) of the Children's Court of Western Australia Act 1988 the Children's Court has exclusive jurisdiction to hear and determine the charges against the appellant unless he elects to be tried by the Supreme Court or the District Court.  Thus the complaints which initiated the charges should have been filed in the Children's Court and the appellant should have been informed of his right of election.  As it happened, the complaints were filed in the Court of Petty Sessions and that Court committed the appellant for trial by the District Court.  The appellant was not informed of his right of election, the Court of Petty Sessions did not have jurisdiction to commit him for trial and the charges, therefore, were not properly before the District Court.

19.    In those circumstances it seems that the only thing this Court can do now is to set aside the convictions on the ground that the proceedings in the District Court are a nullity (see Simons v The Queen (1953) 37 Cr App Rep 120 per Goddard LCJ at 122-3) unless there is some statutory provision which enables it to do otherwise.

20. When the appeal came on for hearing the Court invited submissions from counsel as to whether such a provision is to be found in ss575 and 576 of TheCriminal Code.  Those sections read as follows:

"Place of trial

575.      (1)     A person charged with committing an offence may be tried in any jurisdiction within which any act or omission or event which is an element of the offence takes place.

(2)     A person charged with stealing any property may also be tried in any jurisdiction within which he has the stolen property in his possession.

(3)     A person charged with stealing anything while employed in the Public Service may also be tried in any jurisdiction within which he is arrested or is in custody.

(4)     A person charged with an offence which involves the receiving of any property by him may also be tried in any jurisdiction within which he has the property in his possession.

(5)     A person charged with forging anything, or with uttering anything, may also be tried in any jurisdiction within which he is arrested or is in custody.

(6)     A person who is charged with counselling or procuring the commission of an offence, or with becoming an accessory after the fact to an offence, may also be tried in any jurisdiction within which the principal offender might be tried.

(7)     A person who is charged with an offence committed out of Western Australia, and who may lawfully be tried in Western Australia, may be tried in any jurisdiction within which he is arrested or is in custody.

Persons brought before wrong court

576.      If, on trial of a person charged with any offence before any court, it appears that he is not properly triable before that court under any of the provisions of the last preceding section, he is not by reason thereof entitled to be acquitted, but the court may, at the request of the accused person, discharge the jury from giving a verdict, and direct that he be tried before some proper court, and may remand him for trial accordingly.

If he does not make such request, the trial is to proceed, and the verdict and judgment have the same effect in all respects as if the court had originally had jurisdiction to try the accused person.

This section does not affect the right of an accused person to plead to the jurisdiction of the court."

At first glance, one might think that s576 is intended to bestow jurisdiction retrospectively in a case such as the present when the person charged, although "not properly triable" before the court, has not requested to be tried by some other court and the trial has proceeded to "verdict and judgment". However, the reference in s576 to "the provisions of the last preceding section" requires that the two sections be read together. When that is done, it becomes apparent that both are directed to jurisdiction by reference to the place at which or the circumstances in which the offence is said to have been committed or to the place at which the person charged is arrested, is in custody or is to be tried or at which property in his possession is situated. The sections are not concerned particularly with jurisdiction in the sense of the power of a court in relation to the subject matter of the proceedings. In The Murray Report, The Criminal Code - A General Review (1983) Vol 2 at pp361-363 Murray J, as he is now, expressed the view that the word "jurisdiction" is used in s575 to mean "a place within" Western Australia, a view which is borne out when one considers the origin of the two sections.

21.    The Queensland Criminal Code of 1899 was adopted, with suitable amendments, in Western Australia in 1902. Sections 575 and 576 of the Western Australian Code are almost exactly the same as ss557 and 558 of the Queensland Code. As appears from his Explanatory Letter to Attorney General Queensland with Draft Code at pp 258-260, in 1897 Sir Samuel Griffith took the latter provisions from the existing statutory law of Queensland. Section 575 of the Western Australian Code and s557 of the Queensland Code have their origin in other Queensland statutes relating to the criminal law which were enacted between 1865 and 1887. The provisions of s576 (in Queensland s558) were taken from the Criminal Practice Act of 1865 (29 Vic No 13) which, as its preamble shows, was enacted, among other purposes, to relax "the technical strictness of criminal proceedings in matters not material to the merits of the case … so as to ensure the punishment of the guilty without depriving the accused of any just means of defence".  The relevant part of that Act reads as follows:

"Local limits of jurisdiction of Circuit Courts.

7. If on trial before a court holden by and before a     Prisoner judge of the Supreme Court of any person triable in   not to be Queensland it shall appear that the offence (if any)      acquitted alleged against him was not committed within the       when local limits of the jurisdiction of the court first in        offence this section mentioned and that by reason of the out of alleged offence not having been committed within      venue of the venue such court would (apart from this Act) the
have no jurisdiction such person shall not by             circuit

reason thereof be entitled to be acquitted and            court.
no person so tried shall be liable to be afterwards
prosecuted on the same facts.

Provided that such judge may if he shall think fit at the request of the prisoner or defendant and in his discretion discharge the jury from giving any verdict upon such trial and direct that such person be tried before the proper court.

Provided also that nothing in this section contained shall affect the right of a person accused to plead to the jurisdiction."

As the heading and the marginal note suggest, the above provisions applied to a person who was charged with an offence which "was not committed within the local limits of the jurisdiction of" a circuit court but which presumably was within the statewide jurisdiction of the Supreme Court of Queensland.  As used therein the word "jurisdiction" refers to the range of judicial power and the word "venue" to a district or locality within that range.

22. When ss575 and 576 of the Western Australian Code are read together against that background, it is apparent that the word "jurisdiction" refers to the exercise of judicial power in relation to venue rather than in relation to subject matter. In Queensland, the provisions in question related to proceedings in Circuit Courts. In Western Australia, they were related to proceedings in Courts of General Sessions. In each case judicial power as to subject matter was not in question but, as Anderson J has pointed out, there might have been doubts as to whether the power was territorially unlimited. By reason of the establishment of the District Court of Western Australia any such doubts were removed about 30 years ago.

23. As Anderson J has said, ss575 and 576 are remnants of history. Murray J recommended that they, together with s577, be repealed and replaced by one section providing that persons committed for trial or sentence or indicted for crimes as defined in the Code might be tried before any court of competent jurisdiction at any place in Western Australia (see The Murray Report (supra)). In the light of what has happened in this case, I agree that ss575 and 577 should be repealed but I am inclined to the view that s576 should remain, provided that the words "under any of the provisions of the last preceding section" are deleted.

24.    Meanwhile, in my opinion the convictions should be set aside.