Department of Family & Community Services v C No.SCGRG-96-2340 Judgment No. 6001 Number of Pages Administrative Law Criminal Law

[1997] SASC 6001

IN THE SUPREME COURT OF SOUTH AUSTRALIA

OLSSON, J

Administrative law - judicial review on grounds of ultra vires or defective exercise of powers

Criminal law - jurisdiction, practice and procedure - prosecution - appeal against decision of magistrate - magistrate dismissed application by appellant for issue of a warrant for the apprehension of the respondent - application issued by an officer of Family & Community Services (FACS) - officer of FACS has no standing to make, prosecute and appear on proceedings brought for the enforcement of an obligation said to have been breached by young offenders - appeal dismissed. Young Offenders Act 1993s26s22(2); Criminal Law(Sentencing) Act 1988 s3A s57; Director of Public Prosecution Act 1991 s7s11; Youth Court Act 1993s 32, referred to. Wilson v SA Police (1994) 176 LSJS
319; Roberts v SA Police (Olsson J, 10 May 1994, Judgment 4534 unreported, available in SCALEplus), discussed.

ADELAIDE, 20 January 1997 (hearing), 13 February 1997 (decision)

#DATE 13:2:1997

#ADD 10:6:1997

Appellant :

Counsel: Ms J Bolton

Solicitors: Crown Solicitor

Respondent C:

Counsel: C -

Solicitors: No appearance

Order: appeal dismissed.

OLSSON J

1. This is a purported appeal against the decision of a stipendiary magistrate, whereby he dismissed an 'application' by the appellant for the issue of a warrant for the apprehension of the respondent, a youth as defined in the Young Offenders Act, 1993 ("YOA"), as incompetent.

2. The appellant is an officer of the Department for Family and Community Services ('FACS'), although it is not apparent as to the precise position which he holds within that Department, or as to what direct knowledge (if any) of the relevant facts he possesses.

3. On or about 7 November 1995 the appellant signed and attested on oath a document couched in the following terms - "Court File No: ACC-95-2974 Form No: 39

(Section 59 AA) CRIMINAL LAW (SENTENCING) ACT, 1988

APPLICATION ALLEGING BREACH OF AN OBLIGATION

SOUTH AUSTRALIA

The Application of Andrew McCrae of:

The Department of Family and Community Services

sworn this 7th day of November 1995, before the undersigned, a Justice of the Peace in and for the State of South Australia, who states that:

A......... S............ C............... of:

B. Charles Street NORWOOD but now of 6/317 Military Road Semaphore Park (hereinafter called "the youth") on the 9th Day of October 1995 came before the Youth Court at Adelaide charged as follows: C. 23/02/1995 Larceny Section 131 Criminal Law Consolidation ACT, 1935

On the 9th day of October 1995, as a result of an order of the said Youth Court, the youth entered into an obligation. Details of the Court and the said obligation endorsed on the back thereof.

The application alleges that the youth failed to observe the conditions of the said obligation, in that the said youth: Failed Condition 2.

10/10/1995 The youth committed to attend community work on 14/10/1995, 18/10/1995, 20/10/1995, 21/10/1995

14/10/1995 Youth attended community work late, then disappeared for an hour. When the youth reappeared he was sent home.

17/10/1995 Renegotiation letter sent for appointment on 23/10/1995.

18/10/1995 Youth failed to attend community work.

20/10/1995 Youth failed to attend community work.

21/10/1995 Youth failed to attend community work.

23/10/1995 Youth committed to work 25/10/1995, 27/10/1995 at Hindmarsh Industrial Training resource.

27/10/1995 Youth failed to attend community work.

30/10/1995 Final letter sent to the youth's home address.

06/11/1995 No response from the youth to final letter.

The youth has completed 8 hours of a 120 hour community service order attached to a suspended sentence with 112 hours to complete.

AND the applicant seeks an order:-

D. for a warrant to issue for the apprehension of the youth

OR

of a Guarantor to the recognizance, requiring the youth and the said guarantor to appear before the youth Court at at 0'clock in the noon on the day of E. .

........................................ Applicant

Sworn before me, the day and year first abovementioned at Woodville in the said State.

F. ...............(signed)........................... JAMES OLDS Justice of The Peace JUSTICE OF THE PEACE No. 14880" 4. The application had endorsed on it a copy of the relevant suspended sentence obligation and notice. That document read as under - "SUSPENDED SENTENCE OBLIGATION AND NOTICE

Form No. 33 - Criminal Law (Sentencing) Act, 1988

Court of Origin YOUTH COURT OF SOUTH AUSTRALIA Sitting At ADELAIDE Registry Address 75 Wright Street, ADELAIDE SA 5000 Telephone Number [phone] Court File Number ACC-95-2974

Particulars of Youth

Name D......... S............ C............... Date of birth 13/07/1977 Address 47 Charles Street, NORWOOD SA 5067

Date of Sentence 09/10/1995

Details of the Offence to which the Obligation Relates

1 23/02/95 Larceny Section 131Criminal Law Consolidation Act, 1935

Details of the Offence to which the Obligation Relates. 1 Larceny DETENTION - For 3 MONTHS

Total sentence of detention 3 MONTHS to be served

The court has recorded a conviction against you for the offence listed above and has imposed the sentence shown for each matter. It has, however, ordered that the sentence be suspended so long as you comply with this obligation.

Details of Your Obligation are -

Length of Obligation Term 9 MONTHS Amount of Obligation $N/A

Conditions of Your Obligation

That you are -

1. To be of good behaviour for the duration of this obligation.

2. To perform 120 hours community service within 6 months.

3. To report within 2 working days to the Woodville CSO office at 2 Diana Street, Woodville and obey the directions of his community service officer." 5. It was common ground that the suspended sentence obligation had been the ultimate outcome of a police prosecution of the respondent, before the Youth Court, for an offence of larceny. A warrant was issued on the initial return of the application, pursuant to which the youth was arrested. He was later released on bail pending disposal of the proceedings, but failed to appear when called upon to do so. A further application for a warrant was then pursued.

6. Much was said by the learned magistrate, in reasons published by him, and by counsel on the hearing of these proceedings, concerning the history of this and like matters. However, the core issue is a simple one - it is one which is clearly in contention as between various members of the judiciary of the Youth Court.

7. That issue is, essentially, whether officers of FACS have, or should be accorded, any standing to make, prosecute and appear on proceedings brought for the enforcement of obligations said to have been breached by young offenders.

8. It seems that the so-called Form 39 used in the case at bar was simply brought into existence as a consequence of a practice 'proposal' produced by the Senior Judge of the Youth Court; and that officers of FACS have been permitted to bring and prosecute applications of that type. It is apparent that the learned magistrate has, for some time, disputed the validity, or at least the appropriateness, of such a procedure.

9. Having regard to Rules 4 to 7 inclusive of the Youth Court Rules ("YCR"), I do not consider that much turns upon the precise form of the document in contention, or its practical process of evolution. The fundamental question is as to who has standing to make and/or appear on an application of that type.

10. That issue needs to be addressed in light of relatively recent amendments of the applicable statutes.

11. Pursuant to section 26 of the YOA (the effect of which was described by me in Wilson v SA Police (1994) 176 LSJS 319 and Roberts v SA Police (Olsson J, 10 May 1994, Judgment 4534, unreported, available in SCALEplus)) a young offender cannot be required to enter into a bond pursuant to the provisions of the Criminal Law (Sentencing) Act 1988 ("CLSA"). It may, however, by order of the Court, impose an obligation of the kind that might otherwise have been imposed under a bond. Since 8 October 1996, a new sub-section (4) of section 26 constitutes it an offence to fail to comply with an obligation imposed under the section. Subsequent to that date a breach of an obligation can, accordingly, be the subject of either a prosecution pursuant to that subsection, or enforcement proceedings pursuant to section 57 of the CLSA.

12. With effect from the lastmentioned date, a new section 3A of the CLSA also stipulates that - subject to any express provision of that statute to the contrary - the provisions of the CLSA apply (inter alia) in relation to the enforcement of a sentence against a youth. In particular, section 3A provides that, in applying a provision of the CLSA to a youth, a reference to a bond is to be read as a reference to an order under section 26 of the YOA; and any reference in the statute to a probationer is to be read as a reference to a youth the subject of an order made pursuant to section 26 of the YOA (an "obligation order").

13. It follows then that, mutatis mutandis and subject to any express statutory modifications to the contrary, the provisions of Division 2 of Part 9 of the CLSA, related to enforcement of bonds, are directly applicable to the enforcement of an obligation order.

14. For present purposes the critical provisions of Division 2 are to be found in subsections (1) and (5) respectively of section 57 of the CLSA ("section 57").

15. Sub-section (1) provides that - "If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court may -

(a) (i) issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or

(ii) issue a warrant for the probationer's arrest; and

(b) issue a summons to any guarantor." 16. Sub-section (5) thereafter stipulates that -

"The court dealing with a probationer for breach of a condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply." 17. It is to be observed that section 57 is complemented by Regulation 5 of the Criminal Law (Sentencing) Regulations, 1988 ("the Regulations"), sub regulation (1) of which provides that -

"If, pursuant to section 57 (1) of the Act, a probative court decides to issue a summons or a warrant of arrest to bring the probationer before the court on a written application made by the Crown alleging breach of bond, the court must endorse the application accordingly." 18. Sub regulation (2) prescribes the forms of a summons or warrant so issued. Forms 6 and 7 appended to the Regulations are those applicable.

19. The express wording of Form 6 clearly envisages an allegation of breach being made by a complainant in a formal written application which, in case of an alleged failure to comply with conditions, is supported by an affidavit describing the factual circumstances relied upon. By way of contrast, Form 7 patently contemplates the lodgement of an application and the giving of relevant evidence on oath before the court, in plain contra distinction to the mere filing of an affidavit. That is scarcely surprising when one contrasts the two alternative processes and their practical effect, in terms of the liberty of the subject, apropos the probationer.

20. The CLSA is silent as to the form of application to be made and who may make it. However, as is already apparent, Regulation 5 of the Regulations clearly envisages that any application will be made by or on behalf of "the Crown". That expression is not specifically defined, but it has always been taken, in the higher courts, to mean the Director of Public Prosecutions, as being the prosecuting authority on behalf of the Crown. (See, for example, sections 7 and 11 of the Director of Public Prosecutions Act 1991 ("the DPP Act")). In practice applications are brought by an officer on the Director's staff, and, where a summons is sought to be issued, this is supported by an affidavit of a person directly cognisant of the facts - normally the relevant probation officer.

21. It seems to me that, subject to any specific rule of court or direction applicable to the Youth Court made or given within power, it is clearly the implicit situation that applications must be made by, or directly on behalf of the applicable prosecuting authority, as representing "the Crown"; and that this must be supported by either an affidavit of the nature of that above adverted to, or oral evidence on oath where a first instance warrant is sought. Plainly the provisions of and forms in the Regulations are, mutatis mutandis, also applicable to the Youth Court.

22. True it is that section 32 of the Youth Court Act, 1993 ("YCA") empowers the principal judiciary of the Court (i.e. those judicial officers so designated by proclamation pursuant to section 9 of the YCA) to make rules of court regulating its practice and procedure. However, it is an axiomatic constitutional principle that, absent a specific statutory reservation of power so to do, any such rules cannot override any subordinate legislation in the form of regulations and the implications necessarily arising from them. It follows, as night follows day, that any practice directions given pursuant to rules of court (See YCR 4.01) cannot have any validity beyond that of the rules themselves. YCR 5.02 is similarly limited in its scope. There are, in any event, no specific provisions of the YCR bearing on the enforcement of obligation orders.

23. Annexed to the reasons for decision of the learned magistrate is a copy of a document entitled "Proposal for procedures in relation to enforcement of obligations". This document is of an internal, informal nature and certainly does not purport to constitute even a practice direction pursuant to YCR 4.01.

24. As I read the 'Proposal' it, quite correctly, envisages that, in general, the police prosecution section should normally initiate applications to enforce obligations - the more so as a decision will, usually, need to be made as to whether to proceed pursuant to section 57 or whether to commence a fresh prosecution pursuant to the new subsection (4) of section 26 of the YOA.

25. On the other hand the document also appears to contemplate situations in which it is proper for applications to be brought by FACS; and for Court Liaison Unit Officers to appear to prosecute them. In my opinion there is simply no statutory or other warrant for the latter procedure, which runs counter to what is obviously contemplated by the Regulations. In practical terms it also has most undesirable features, not the least of which are - (1) there is a clear potential for two separate agencies to inter meddle in the conduct of what is, essentially, a single, ongoing criminal matter, originally initiated by the police prosecutors and

(2) in most instances at least, FACS and its officers have a direct involvement in the evidentiary aspects of the situation and can scarcely also act in the independent role of the specialist prosecutor. Whilst it may well be that a court of summary jurisdiction can exercise a discretion as to who may appear before it (Brennan v Alexander [1932] SASR 237) it is most inappropriate to establish a precedent whereby persons who are not portion of a professional, trained, specialist prosecution branch (with direct access to advice and assistance from the Director of Public Prosecutions and imbued with the notion of prosecutorial independence and responsibility) be permitted to have the conduct of important, in court, proceedings affecting the liberty of the subject. In this regard due attention must be given to the concept of section 11 of the DPP Act, which clearly contemplates the appearances of police prosecutors (who are required to abide by directions of the Director), by way of contrast with other persons (who are not). It is implicit in the DPP Act and its concepts that prosecutorial type activities are to be the province of either the Director (usually via delegations to his professional staff), or police prosecutors, who are, by statute, subject to his guidelines. 26. In the course of his submissions Mr Bolton, of counsel for the appellant, promoted what seems to me an extraordinary proposition bearing on the former issue - as to who may initiate proceedings pursuant to section 57.

27. In effect, he contended that it is open, literally, to anyone, be it an officer of FACS or even any person in the street, to lodge a document of the nature of the form here used, informing the court of an apparent breach of an obligation or bond. It was then, he said, for the appropriate court to act in an inquisitorial fashion and determine whether or not a summons or warrant should issue. A process under section 57 was not, he argued, of a prosecutorial nature and there was no specific applicant as such, at least when the proceedings are first initiated.

28. I do not consider that the section remotely contemplates such a situation. Section 57 authorises the initiation of what are, undoubtedly, criminal enforcement proceedings which, in substance, are plainly of a prosecutorial nature. Moreover, as I have pointed out, an initial decision needs to be made by the appropriate prosecutorial authority as to whether, in the circumstances, resort should be had to that section or subsection (4) of section 27 of the YOA. The concept of two quite different agencies or persons separately reflecting on that aspect verges on the preposterous.

29. A decision having been made to proceed under section 57, the court does not, at any point, act of its own motion in an inquisitorial fashion. It is for the appropriate applicant to initiate the proceedings and do those things necessary to satisfy the court, on a proper basis of evidence, as to what relief is proper to be granted, both in the initial stages, as to issue of either a summons or warrant, and also as to final disposal of the enforcement proceedings.

30. Moreover, standing to lodge an application and standing to appear before the court are not necessarily a single issue.

31. Prima facie, for the reasons earlier expressed by me, the proper prosecutorial authority as to enforcement, in a situation such as that now before me, is the police prosecution section, acting within guidelines issued by the Director of Public Prosecution. If, as Mr Bolton infers, the police prosecutors are reluctant to become involved in section 57 matters then that is an administrative aspect which, presumably, ought to be resolved on a Ministerial level.

32. As I see it, the only issue which arises in this regard is whether the above prima facie situation is varied by the provisions of section 22(2) of the YOA, which is adverted to by Senior Judge Dawe in an earlier judgment written by her in the course of these proceedings. That stipulates that -

"Any powers conferred on a Minister of the Crown by the Criminal Law (Sentencing) Act 1988, are exercisable in relation to a youth, or a sentence imposed on a youth, by a Minister assigned by the Governor, to exercise such powers in relation to youths." 33. An assignment has, in fact, been made, for the purposes of that provision, to the Minister for Family and Community Services.

34. I take Senior Judge Dawe to be of the opinion that such an assignment is adequate to confer standing on a FACS officer, delegated by the Minister so to do, to initiate proceedings pursuant to section 57.

35. In my opinion that is not the intendment of section 22(2). The 'powers' there in contemplation appear to be specific powers vested by the statute, for the purposes of implementation of certain of its provisions, in the relevant Minister. Typical of these are powers to cancel unperformed hours of community service under section 50B of the CLSA and the various powers adverted to in section 51 of that enactment i.e. powers directly conferred upon the Minister for exercise, as a matter of administrative discretion, by the Minister. The statutory provision in question simply does not focus on the type of situation presently under contemplation.

36. Even if I am incorrect as to that, there was, in the instant case, no evidence whatsoever that Mr McRae had been given a Ministerial delegation to initiate these proceedings.

37. There are, in any event, two additional features of the material on oath deposed to by Mr McCrae which must attract comment, if, contrary to my opinion, it be concluded that his application was properly before the court.

38. Even if it be accepted that a written deposition of the nature of an affidavit was, in this case, a sufficient evidentiary basis for issue of a first instance warrant, it was, as the learned magistrate pointed out, plainly defective. Not only did it not disclose what position he held within FACS, but it also failed to indicate the basis of his knowledge. In the normal case an affidavit - where affidavit evidence is appropriate - should be sworn by the officer appointed to supervise the probationer, or who can otherwise depose, of his or her own direct knowledge, as to the facts constituting the alleged breach. In the case at bar we simply do not know what was the source of Mr McRae's asserted knowledge. It could have been rank hearsay. That situation is patently unacceptable.

39. Secondly, it must firmly be borne in mind that the primary relief here sought was a warrant of apprehension. It is scarcely surprising that, in a case in which the liberty of the subject is directly in question, the Regulations obviously contemplate oral evidence on oath being given before the court on a ex parte application, so that the court may be satisfied, on a proper evidentiary basis, that clear justification exists for granting the relief sought. What was done here fell far short of satisfying such a requirement.

40. It is small wonder that the learned magistrate found himself unable to accept the procedural approach here sought to be adopted, or that there was a proper basis of evidence warranting the order applied for. The application was, on the face of it, incompetent and the 'evidence' in support of it fell far short of that required.

41. The appeal must be dismissed.