Director of Public Prosecutions (NSW) v AB and ANOR

[2008] NSWSC 115

CITATION:	DPP (NSW) v AB & ANOR [2008] NSWSC 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 & 13 February 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	13 February 2008
DECISION:	Certificate of dismissal pursuant to s 205 of the Criminal Procedure Act is null and void. No order as to costs.
CATCHWORDS:	Sexual offences - child offender - jurisdiction of Children's Court - prosecution withdrawn - statutory effect - consequences of withdrawal - whether certificate of acquittal can be given.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 ss 3, 31 Criminal Procedure Act 1986 ss 205, 206, 208
PARTIES:	Director of Public Prosecutions (NSW) (Plaintiff) AB (First defendant) Registrar, Bidura Children's Court (Second defendant)
FILE NUMBER(S):	SC 16400/07
COUNSEL:	Mr D Frearson SC (Plaintiff) Mr R Sutherland SC (First defendant and submitting appearance for the second defendant)
SOLICITORS:	S C Kavanagh, Solicitor for Public Prosecutions (Plaintiff) Fox O'Brien Solicitors (First Defendant) I V Knight, Crown Solicitor (Second Defendant)

THE SUPREME COURT Ex tempore - revised
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

WEDNESDAY 13 FEBRUARY 2008

16400/07 - DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES) v AB & ANOR

JUDGMENT

1 HIS HONOUR: On 18 September 2004 the first defendant was issued with a court attendance notice alleging the commission of a sexual offence without consent on 17 September 2004 upon a female complainant who was then aged 14 years, the age of the complainant being a circumstance of aggravation. Both children were at that time pupils at a secondary school in Sydney and the alleged act of sexual intercourse was said to have occurred between them whilst at school. This charge is referred to as the sequence 1 charge.

2 On 21 October 2004 the first defendant was issued with a further court attendance notice for an offence arising out of the same circumstance but this time alleging a different circumstance of aggravation. The circumstance of aggravation alleged in this charge was more serious than that in the sequence 1 charge since it was particularised as the malicious infliction of actual bodily harm. This charge is referred to as the sequence 2 charge.

3 The sequence 1 charge did not allege a "serious children's indictable offence" as that term is defined in s 3 of the Children (Criminal Proceedings) Act 1987. The first defendant being 16 years of age at the time of the alleged commission of the offence, was a child within the meaning of that Act. Section 31 of the Children (Criminal Proceedings) Act 1987 has the effect that the first defendant having been charged in the Children's Court with that offence it must have been dealt with in summary proceedings in the Children's Court subject to the possibility that at the end of the prosecution case the first defendant might have requested that his trial take place "according to law".

4 The sequence 2 charge on the other hand, because of the nature of the aggravation alleged, did constitute a "serious children's indictable offence". Accordingly, it could only proceed in the Children's Court by way of a committal and other consequential limitations on the proceedings, for example in relation to calling the complainant for cross-examination, applied.

5 On 16 November 2004 both sequence 1 and sequence 2 charges were before the Children’s Court. They were adjourned to 7 December 2004. For various reasons, which it is not necessary to mention, further adjournments were necessary. In due course, there having been agitated a question of the course of evidence in the committal proceedings, written submissions by the parties were tendered.

6 On 12 April 2005, the committal proceedings commenced. At the conclusion of the cross-examination of one witness (who was called by agreement), no submissions were made by then counsel for the first defendant, and the Children's Court Magistrate committed the defendant for trial in respect of the sequence 2 charge. The solicitor acting for the Director of Public Prosecutions requested that the sequence 1 charge be "withdrawn". The Magistrate allowed this to occur and noted the papers "W/D discharged". This slightly cryptic note could mean "withdrawn/dismissed and discharged" or, as Mr Frearson SC for the Director submitted, "W/D” was shorthand for withdrawn. Either interpretation is open. In the view I have taken it does not matter which interpretation is adopted.

7 When the matter eventually came before the District Court the Crown proceeded by way of ex officio indictment in respect only of the sequence 1 charge. The learned trial judge remitted the matter to the Children's Court so that it could proceed in accordance with the procedure envisaged by the Children's (Criminal Proceedings) Act. The Director successfully challenged that order in the Court of Criminal Appeal, which determined in effect, that the judge had no jurisdiction to remit the matter and that the District Court was required to proceed to try the indictment in the conventional way. The High Court confirmed the correctness of this view.

8 It appeared sometime later, however (I suppose as this matter was being prepared for trial), that the Children's Court had issued a certificate under s 205 of the Criminal Procedure Act 1986 which, by virtue of s 206, "prevents any later proceedings in any court for the same matter against the same person". If the certificate was properly given, then the Director was precluded from proceeding in the District Court by way of ex officio indictment as is proposed.

9 Although a number of arguments have been addressed to me by the parties relating to the effect of what was said to the Magistrate as to the preferring of the sequence 2 charge and the ensuing committal proceedings, it is not necessary for me to consider that matter. I think it fair to observe, however, that the provisions of the legislation as to sequence 1 brook no qualification. The sequence 1 charge could never be the subject of committal proceedings, consent or implied consent was immaterial, and the scheme of the Act is mandatory, however much "rationalisation" (used by counsel for the Director in this Court to describe what occurred) of charges might be thought to be desirable.

10 I return therefore to the provisions of the Criminal Procedure Act 1986. Sections 205, 206 and 208 are as follows:

“ 205 Order dismissing matter to be made
(1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.
(2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor.
(3) This section does not apply to a matter that is taken to be dismissed because of section 208.

206 Effect of certificate that matter has been dismissed
A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.

208 Dismissal of matter if matter withdrawn

(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.

(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.”

11 It is clear that s 208 specifies a mandatory course in the event of the withdrawal of a matter by a prosecutor. The deemed dismissal of the charge and discharge of the accused person in relation to the alleged offence occurs by virtue of the section. Further action by the Magistrate or the court is unnecessary and can add nothing to the effect of the withdrawal.

12 It is true that, in some circumstances, the court will have the power to consider whether leave to withdraw should be granted unconditionally. It may be that, in some cases, it is appropriate that conditions should be imposed before withdrawal is allowed. These might cover such matters as costs, for example, but also presumably return of exhibits and deal with other incidental matters arising from the proposed withdrawal. But, once the matter is withdrawn, s 208 effects both dismissal and discharge.

13 The dismissal and discharge by virtue of s 208 must be contrasted with that which arises from s 205. Where a court has decided to dismiss a matter then by subs (1), the court may make an order of dismissal and give the accused person a certificate certifying that that has occurred. Sometimes it may be that matters are dismissed in circumstances that make it inconvenient to give a certificate. Amongst other things, a defendant might not be present or be represented on such an occasion. Subsection (2), however, requires the order of dismissal to be made and a certificate to be given where there is a request either by an accused person or by the Prosecutor.

14 I think it certain that the words "has been dismissed" in subs (2) refer only to a dismissal following a decision in accordance with subs (1) and are not intended to comprehend what I might call the statutory dismissal provided by s 208.

15 In the present case, it is not controverted that the prosecutor withdrew the sequence 1 charge. It is submitted by Mr Sutherland SC for the first defendant, however, that whatever might have been the effect of s 208 the Magistrate also dismissed the charge and that this independent action is evidenced by his note on the papers. Assuming, for the sake of argument, that this submission is the correct characterisation of what the Magistrate thought he was doing, it seems to me that the effect of s 208 is to render any decision by the Magistrate supererogatory and, indeed, was outside the Court’s jurisdiction. To my mind, the better interpretation of what the Magistrate did was simply to note the papers with the effect of s 208 so it would be clear, if anyone needed to consider the papers, that the matter had been dismissed.

16 I note it was the Registrar of the Court who issued the impugned certificate. I suspect, though there is no evidence, that he simply relied on the note of the Magistrate and had overlooked the effect of s 208. Accepting that the Registrar in an appropriate case can give a certificate (although this might be doubted), it is obviously desirable that, where magistrates do note a dismissal and discharge pursuant to a withdrawal, the papers specifically refer to s 208 of the Criminal Procedure Act 1986 so that any officer of the court who finds it necessary to consult the papers will understand immediately what the actual position was.

17 To return, however, to this case I am satisfied that the certificate was given without jurisdiction and is accordingly void and without effect. I make no order as to costs.

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20/02/2008 - First defendant's solicitor left off coversheet - Paragraph(s) Coversheet