Director General Dept of Juvenile Justice & anor v NB & anor

[2008] NSWSC 598

CITATION:	Director General Dept of Juvenile Justice & anor v NB & anor [2008] NSWSC 598
HEARING DATE(S):	11 June 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
EX TEMPORE JUDGMENT DATE:	11 June 2008
DECISION:	Declaration made (see par 12)
CATCHWORDS:	CHILDREN'S COURT - jurisdiction expired when detainee transferred to correction centre and status changed to that of inmate - purported revocation of parole and restoration on review by Children's Court invalid when orders made subsequent to detainee being transferred to correction centre
LEGISLATION CITED:	s 28(3) Children (Detention Centres) Act 1987
CATEGORY:	Principal judgment
PARTIES:	Director General, Department of Juvenile Justice - First plaintiff Commissioner of Corrective Services - Second plaintiff NB - First defendant Magistrate, Children's Court - Second defendant
FILE NUMBER(S):	SC 2008/12706
COUNSEL:	T Barrett - Plaintiffs A Healey - First defendant R Bhalla - Second defendant
SOLICITORS:	I V Knight - Crown Solicitor - Plaintiffs Aboriginal Legal Service - First defendant I V Knight - Crown Solicitor - Second defendant
LOWER COURT JURISDICTION:	Children's Court
LOWER COURT JUDICIAL OFFICER :	Magistrate Stapleton
LOWER COURT DATE OF DECISION:	20 May 2008, 4 June 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 11 June 2008

2008/12706 - DIRECTOR GENERAL DEPARTMENT OF JUVENILE JUSTICE & ANOR v NB & ANOR

CLOSED COURT

JUDGMENT

1 HIS HONOUR: There is before the court now an amended summons in which the plaintiffs are the Director General of the Department of Juvenile Justice and the Commissioner of Corrective Services. The second defendant is a magistrate in the Children’s Court and a submitting appearance on her behalf has been filed. The first defendant, a juvenile (NB), is represented by Miss Healey of counsel.

2 The summons has been amended in order to accommodate an observation on behalf of the plaintiffs concerning the validity of a revocation of a parole order purportedly made in the Children’s Court. It was in dealing with this in review that Magistrate Stapleton purported to make an order granting parole.

3 The essence of the argument of the plaintiffs is that, both the revocation order and the consequent order by the Children’s Court founded upon it, were made, in effect, without jurisdiction and were invalid. It is, however, the consequence of upholding the plaintiffs’ submissions that the first defendant will be at liberty. He is presently in court and, in those circumstances, it seems to me to be desirable that I deal with this matter although, obviously, were I to reserve my judgment I could give my reasons in a fuller context. I am assisted in determining to take that course by the candour of Miss Healey who did not challenge the argument on behalf of the plaintiffs in regard to validity.

4 It suffices to observe that the first defendant was, in September 2007, before the Children’s Court at Parramatta for an offence. Orders were made and, in due course in October 2007, he was released on parole. On 20 May 2008 an order for revocation of parole was made. A copy of that order is part of ex A. That order indicated that the revocation take effect from 21 March 2008 but the focus of the court concerning the validity of the order must be on the date it was made, 20 May. It is common ground between the parties that the first defendant had been retaken into custody on 21 March 2008.

5 I am informed, and it is not disputed, that the routine procedure followed by the Children’s Court is for an order for revocation to be made in chambers and this apparently occurred on this occasion. This is followed by the dispatch of a Notice of Revocation of Parole Order and a copy of this is also part of ex A. That notice required the first defendant to appear at the reconvening of the Children’s Court on 4 June. It was on that occasion, on 4 June, that the learned magistrate made an order for the first defendant to be released on parole.

6 The crux of the argument on behalf of the plaintiffs is that, in the interim, there had been procedures which effectively removed the first defendant (so far as revocation was concerned) from the jurisdiction of the Children’s Court. I will not pause in the present circumstances to relate the complexities of the statutory structure whereby this happened but the evidence shows that on 29 March 2008 the Acting Director General of the Department of Juvenile Justice made an order for transfer of the first defendant to a juvenile correctional centre. This is to be distinguished from a detention centre.

7 At the same time, he wrote to the Commissioner of Corrective Services seeking his consent, as is required by the legislation. Annexure C to the affidavit of Nicole Christoph evidences the appropriate consent of the Commissioner of Corrective Services.

8 The statute provides, importantly, that the detention order in relation to the first defendant would cease to have effect when he was transferred to a correctional centre. It is common ground that the first defendant was in fact so transferred on or about 29 March, that is to say, the common date of the order made by the Acting Director General and the giving of consent by the Commissioner for Corrective Services.

9 The plaintiffs’ argument can simply be stated that, once such a transfer has been effected in accordance with the legislation, then the first defendant ceased to be a detainee and became an inmate. That is provided in s 28 (3) of the Children (Detention Centres) Act 1987.

10 It does not require detailed analysis to observe that the structure of the jurisdiction of the Children’s Court assumes that, relevantly insofar as the Children’s Court is dealing with matters of parole, that court is dealing with a detainee. As I have indicated, the first defendant had ceased to be a detainee from about 29 March and had become an inmate. Once that happened there was no jurisdiction in the Children’s Court to make the revocation order on 20 May nor for that court to review it or make some other order subsequently on 4 June.

11 The evidence shows that the first defendant is scheduled to appear before the Children’s Court in respect of offences alleged to have occurred since his release initially, on Monday next. However, it is, as I have already observed, common ground that, if the plaintiffs’ arguments are correct, he is entitled to maintain his present liberty as he has entered into appropriate bail in respect of those matters.

12 In those circumstances, therefore, I have come to the conclusion that an order should be made in the terms of par 1 of the relief claimed in the amended summons and I declare that the order of the Children’s Court to revoke parole of the first defendant made on 20 May 2008 and the order of Magistrate Stapleton to release the defendant on parole in her review of that order which she made on 4 June 2008 were both made without jurisdiction and are invalid.

13 I grant liberty to apply over the next fourteen days by contacting my associate in the event either party want to make an application in relation to costs.

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