Chapman v Cottle
[2022] ACTSC 330
•1 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chapman v Cottle |
Citation: | [2022] ACTSC 330 |
Hearing Date: | 1 December 2022 |
DecisionDate: | 1 December 2022 |
Reasons Date: | 2 December 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [41] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – referral to Full Court – whether narrow legal issue should be determined by Full Court – where conflicting approaches to existence of residual discretion in prosecution sentence appeals from Magistrates Court – where matters of public importance raised – referral made – matters referred jointly – consideration of terms of referral |
Legislation Cited: | Magistrates Court Act 1930 (ACT) s 219F |
Cases Cited: | CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346 |
Parties: | Naomi Chapman (Appellant) Damien Cottle (Respondent) |
Representation: | Counsel A Williamson SC (Appellant) J Nottle (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) SCB Legal (Respondent) | |
File Number: | SCA 11 of 2022 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 5 April 2022 Case Title: Chapman v Cottle Court File Number: CC2020/12887, CC2020/12888, CC2020/12889, CC2021/3074, CC2021/5743, CC2021/8263 |
Loukas-Karlsson J:
Introduction
1․On 1 December 2022 I heard an application by the appellant that the proceeding be referred to the Full Court for consideration of a narrow legal question regarding the proper interpretation of s 219F(5) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) and how it applies with respect to prosecution appeals against sentences imposed by the Magistrates Court. These are my reasons for making orders referring the matter to the Full Court for determination of two legal questions.
2․The referral is sought pursuant to s 13(3) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) which provides:
13 Power of judge to order that jurisdiction in a matter be exercised by Full Court
(1) This section applies in relation to matters in which, apart from this section, the jurisdiction of the court would be exercisable by a single judge.
(2) At any time before the beginning of the hearing of a matter in relation to which this section applies, a judge may order that the jurisdiction of the court in that matter shall be exercised by the Full Court.
(3) At any time after the beginning of the hearing of a matter in relation to which this section applies, the judge hearing the matter may order that the jurisdiction of the court in that matter shall be exercised by the Full Court.
(4) If an order has been made under subsection (2) or (3) in relation to a matter—
(a) the jurisdiction of the court in the matter must, subject to the rules, be exercised by the Full Court; and
(b) the court may give the directions it considers appropriate about the procedure to be followed in the further conduct of the proceeding, including directions about the use (if any) of any evidence received before the making of the order.
3․The application arose following the hearing of an appeal against a sentence imposed in the Magistrates Court. At that hearing, an issue emerged between the parties as to the existence of the residual discretion in a prosecution appeal from a decision of the Magistrates Court.
Consideration
4․The appellant, in effect, submitted at the hearing that I was bound by two recent decisions of this Court that the residual discretion was excluded by the text of s 219F(5) of the Magistrates Court Act: Kirby v Ali [2021] ACTSC 95 (Kirby); Fall v Vuolo [2022] ACTSC 249 (Vuolo).
5․The appellant submitted that unless I was satisfied that those decisions were plainly wrong, I was bound to follow them: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 (FAK19) per Allsop CJ at [21]. I interpolate to note that the statements of Allsop CJ as to the meaning of “plainly wrong” were recently endorsed by the Court of Appeal in Hurt v The Queen [2022] ACTCA 49.
6․There is no need to set out in full the text of s 219F for the purpose of this judgment. Broadly, the section outlines the powers of the Supreme Court on a review appeal from a decision of the Magistrates Court.
7․The respondent, conversely, submitted that there was a lengthy line of authority supporting their submission that the Court retains a residual discretion to dismiss a prosecution appeal against a sentence imposed by the Magistrates Court, just as the Court of Appeal possesses on a prosecution appeal from a sentencing decision of the Supreme Court.
8․This line of authority includes High Court authority: CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346 (CMB). Earlier decisions of this Court have expressly confirmed that the residual discretion applies to prosecution appeals from sentences imposed by the Magistrates Court or have indicated that the Court retains a discretion to refuse relief: see, eg, Hall v CL [2015] ACTSC 286 at [15] (Hall) (Refshauge J); Croatto v Banks [2015] ACTSC 398 at [19] (Burns J); Waring v Laws [2020] ACTSC 33 (Mossop J).
9․In particular, Refshauge J in Hall at [15] described s 219F(5) as an “express application of the ‘residual discretion’” referring to CMB.
10․It seemed to me appropriate, in light of the difference in position between the parties, to call for further written submissions on the question of the test to apply and on the issue of whether there is a residual discretion in this case.
11․The appellant sought an extension of time to provide the submissions, in part as the appellant was considering making a submission that the matter be referred to the Full Court. That extension of time was granted by me in chambers.
12․Ultimately, both parties provided helpful written submissions on the history of s 219F, the conflicting approaches taken to the provision by judges of this Court, and the test that this Court would need to apply in resolving that conflict. Some of the matters outlined in those submissions are summarised above. Counsel for the appellant sought a referral to the Full Court in those submissions.
13․There is no need to set out those submissions in full at this time.
14․Counsel for the appellant, in written submissions, submitted that it was appropriate that the legal question be referred to the Full Court pursuant to s 13 of the Supreme Court Act.
15․The respondent consented to the referral being made to provide certainty on the law, while expressly noting its position that Kirby is plainly wrong and that the Court was not bound to follow it.
16․It is also clear that I have the power to make such a referral: s 13(3) Supreme Court Act.
17․That, of course, is not the end of the question.
18․Section 13 of the Supreme Court Act does not prescribe any matters relevant to the question of whether a case should be referred to the Full Court. The appellant, helpfully, referred me to the decision of Murrell CJ in Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 256 where at [20] her Honour stated:
The application is made under s 13 of the Supreme Court Act, which does not state the matters that should guide the court’s discretion when considering whether to refer a matter to the Full Court. Inferentially, there would need to be something special or exceptional about a case before the Court would be persuaded to exercise the discretion under s 13(2). For example, the discretion may be enlivened where a matter involved an important question of principle or a matter of public importance.
(emphasis added)
19․This statement appears to have been endorsed (albeit that endorsement must be taken as obiter) by the Full Court in Parkinson v Alexander [2016] ACTSCFC 1 at [8] where the Court stated:
Pursuant to s 13(2) of the Supreme Court Act 1933 (ACT) (SCA) the question of whether the appeal is competent was referred by a single judge to the Full Court. As the Court observed in Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 256 at [20], “the discretion [to refer a matter to the Full Court] may be enlivened where a matter involved an important question of principle or a matter of public importance.” This matter involves both questions.
20․Referrals to the Full Court have also been made where a case raises “a significant point of statutory interpretation in relation to which there was a challenge to the correctness of the reasoning in a decision of a single judge of the Supreme Court”: see, for example, UD v Bishop [2021] ACTSCFC 1 at [4].
21․For the following reasons I am satisfied that the referral should be made.
22․First, the question of whether there is a residual discretion in prosecution appeals from sentences imposed by the Magistrates Court is both an important issue of principle and one of public importance. While I accept the appellant’s submission that there may, in some cases, be no practical difference in outcome, as the appellant further submitted, the divergent approaches do have significant consequences when the prosecution appeals against a sentence imposed in the Magistrates Court. It is apparent to me that the question of whether the Court has the power to decline to intervene is an important issue.
23․In particular, as the appellant submitted, if the approach of Robinson AJ is correct, when considering a prosecution appeal against sentence where satisfied that there was an error, a Judge of this Court would be required to allow an appeal and re-sentence an offender unless satisfied that “no different sentence was warranted”. This is plainly a narrower test than the residual discretion which would enable broader matters to be considered, such as any delay in the bringing of an appeal or the limiting purpose of prosecution appeals.
24․It is clear that, at least in some cases, there could be a real difference to individuals if the appellant’s argument is accepted and the approach taken by Robinson AJ and Kennett J followed.
25․Second, it is clear that the issue is one of statutory interpretation where, not only are there overlapping challenges to judgments of this Court, but there are directly conflicting lines of authority in this Court.
26․Third, there are real practical issues in relation to the test that I would need to apply as a single judge to resolve the question before the Court. In particular, the appellant has submitted that I am bound by the approach of Robinson AJ unless satisfied that it is plainly wrong. There is clear authority that supports that test; see FAK19. The importance of judicial comity should not be understated.
27․Indeed, that was the test applied by Kennett J in following the approach of Robinson AJ: Vuolo at [36]. It is worth setting out his Honour’s statement in full:
In Kirby v Ali [2021] ACTSC 95 at [60] Robinson AJ held that, in a review appeal under Division 3.10.3 of the Magistrates Court Act, there is no discretion not to set aside the decision below if an appealable error is found. His Honour came to that view as a matter of construction of s 219F, having particular regard to s 219F(5) which provides that an appeal may be dismissed if the court considers that “no substantial miscarriage of justice has happened”. Although I was urged to hold that Robinson AJ was wrong on this point, the submission was not developed; and I would not depart from his Honour’s reasoning unless persuaded that it was plainly wrong. Having regard to the terms of s 219F(5), I am inclined to conclude that his Honour was correct. I am certainly not convinced that he was plainly wrong.
(emphasis added)
28․Equally, however, there are challenges with accepting that proposition in the particular circumstances of this case. In particular, Robinson AJ did not find that the earlier line of authority (which was supported by a long line of cases) was itself plainly wrong. Indeed, there is nothing from his Honour’s reasons to conclude that his Honour considered the earlier decisions of this Court which had found that the residual discretion applied to prosecution appeals from sentences imposed by the Magistrates Court.
29․On one view, to approach the issue as one of “is the later decision plainly wrong?” seems to discount the lengthy line of earlier authority I have referred to above at [8] which was not expressly overruled in the decision of Robinson AJ nor expressly considered by his Honour. Of course, such an issue would not confront a Full Court which would not be bound by either approach.
30․Fourth, the appellant has referred to interstate authority from Western Australia which supports the approach taken by Robinson AJ and Kennett J. That authority has not been expressly considered in this jurisdiction previously.
31․There is one final matter to mention. Namely that, in an appeal against a different sentence imposed in the Magistrates Court on which I am part-heard (Harlovich v Sebbens), the prosecution submitted that the residual discretion applied to that appeal. That different approaches are being taken by the prosecution in different cases before this Court is a further matter that suggests a definitive resolution by the Full Court is desirable. Indeed, to provide certainty in future cases is the very basis on which the respondent consented to the referral.
32․In relation to that matter, I interpolate to note that I listed that matter before me on 1 December 2022 to hear from the parties as to whether both cases should be referred to the Full Court. It is appropriate that I outline the orders I made in relation to Harlovich v Sebbens in a separate judgment. However, in short, I made orders to enable that matter to be joined to this referral to the Full Court.
33․Overall, in my view, it is appropriate that the issue be referred to the Full Court for resolution. The appellant has expressly only sought a referral of the legal issue. That is the appropriate course. The hearing on the substantive issue has been heard before me. There is no reason to put the parties to the expense of re-agitating those issues before the Full Court.
34․In relation to the form of the referral, the appellant had submitted in writing that “the question arising … as to the interpretation of s 219F(5) ought to be referred to the Full Court for consideration”. The respondent’s written submissions referred to the use of “may” in 219F(1), (2) and (5) as supporting the submission that s 219F contains the residual discretion. The respondent’s submissions also raised broader matters, including that the approach in Kirby is plainly wrong as the residual discretion is not a creature of statute but rather of the common law.
35․In my view, it was appropriate that the question referred to the Full Court be broader than that originally advanced by the appellant in written submissions. On raising that matter at the hearing on 1 December 2022, counsel for the appellant originally submitted that the parties should have leave to advance a proposed consent question (or questions) when the matter returned in the Appeal Index List and the order simply be that the matter be referred to the Full Court. I declined to take that approach. In my view, it was preferable for there to be clarity as to the nature of the referral and, as the Judge referring the matter, it was important that I was satisfied that the question referred was the appropriate one in light of the reasons justifying the matter being referred to the Full Court.
36․After discussions with counsel for the appellant and respondent at the hearing on 1 December 2022, as well as counsel for the respondent in the related matter, counsel for the appellant proposed the following statement of questions:
(1)In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?
(2)If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?
37․Counsel for the appellant, in particular, submitted that question (2) ensured that the Full Court would expressly consider the statutory context of appeals from decisions of the Magistrates Court and would address submissions to the broad effect that the residual discretion may be limited or altered by s 219F of the Act.
38․The other parties did not seek to be heard against that wording, noting that the application was brought by the prosecution and that they should not be denied the opportunity of putting that additional question before the Full Court.
39․While on one view, the issue outlined in (2) would have fallen into the broad framing of (1), in circumstances where the other parties did not oppose the additional question being referred to the Full Court and where there may be some additional clarity with that framing, I made orders in those terms.
40․In relation to other orders, the parties indicated that it was appropriate that the matter be listed in the next Appeal Index List on 8 December 2022. I made that order. The parties noted that the period of one week would enable the parties to discuss an appropriate timetable for written submissions.
Orders
41․I confirm the orders made on 1 December 2022 in the following terms:
(a)The matter be referred to the Full Court pursuant to s 13(3) of the Supreme Court Act 1933 (ACT) to answer the following questions of law:
(i)In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?
(ii)If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?
(b)The matter is adjourned to 2.30pm on Thursday 8 December 2022 in the Court of Appeal index list.
Addendum
42․There is one additional matter to note. There is certainly a strong argument in favour of expedition of the Full Court hearing in this matter and the now-joined proceeding (SCA 10 of 2022). The questions raised by the referral are matters which affect all prosecution sentence appeals from the Magistrates Court. It is possible that a number of other cases in this Court may need to be stayed or adjourned pending the Full Court hearing.
43․The question of when the Full Court hearing can be listed is not, however, a matter before me and is a matter best resolved at the listing on 8 December 2022. The timetable chosen must of course balance the parties’ need to provide written submissions and the availability of judges to bring the matter before a Full Court.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 2 December 2022 |
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