Director of Public Prosecutions v Edwards

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0110

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	V
REGINALD EDWARDS	Respondent

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JUDGES	WARREN CJ, WEINBERG JA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 October 2012
DATE OF JUDGMENT	7 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 293	1^ST Revision para [235]
JUDGMENT APPEALED FROM	Director Of Public Prosecutions v Edwards (Unreported, County Court of Victoria, Judge McInerney, 28 March and 23 April 2012)

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CRIMINAL LAW — Director’s appeal against sentence — Plea of guilty to one charge of recklessly causing serious injury — County Court judge purported to impose wholly suspended sentence on 28 March 2012 — Sentence beyond power as suspended sentence unable to be imposed for ‘significant offence’ under Sentencing Act 1991 — Judge recalled matter and purported on 23 April 2012, pursuant to s 412 of the Criminal Procedure Act 2009, to substitute three year community correction order — Whether s 412 permitted that course — Whether, irrespective of validity of second sentence, community correction order an appropriate sentencing disposition — Deterrent effect of community correction order considered.

ADMINISTRATIVE LAW — Nullity — Doctrine of functus officio — Whether sentencing judge functus officio after sentence imposed on 28 March 2012 had passed into record — Whether doctrine applicable where initial sentence affected by jurisdictional error — Whether further sentence imposed on 23 April 2012 invalid by reason of judge having been functus officio — Whether power to reconsider sentence once passed into record — County Court Act 1958 s 36A; Sentencing Act 1991 s 104A; Criminal Procedure Act 2009 s 412 considered — No power to recall sentence — Both sentences imposed invalid — Director’s appeal allowed — Community correction order reimposed — R v Billington [1980] VR 625; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, applied; R v Brattoli [1971] VR 446 not followed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J R Champion SC with Mr B F Kissane	Mr C Hyland, Solicitor For Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr M P McGrath	Kurnai Legal Practice

WARREN CJ:

Introduction

The respondent pleaded guilty to one charge of recklessly causing serious injury (‘RCSI’). He fell to be sentenced by the County Court. Recent amendments to the Sentencing Act exclude a suspended sentence as a sentencing option for a significant offence.[1] RCSI is a significant offence unless heard and determined summarily.[2] Hence, the County Court could not sentence the respondent to a suspended sentence.
[1]Sentencing Act 1991 s 27(2B).
[2]Sentencing Act 1991 s 3.

Unfortunately, the learned sentencing judge was unaware of this limitation. His Honour purported to sentence the respondent to a suspended sentence. Some weeks later, after the order had passed into the records of the Court, his Honour was informed of the error. He considered that, under s 412 of the Criminal Procedure Act 2009, he had the power to set aside the first sentencing order and impose a new sentence. He purported to do so, re-sentencing the respondent to a Community Correction Order (‘CCO’).

The Director of Public Prosecutions (the ‘Director’) appealed the second sentence. The original notice of appeal contained two grounds. Ground 1 alleged specific error in the second sentence. Ground 2 alleged that the sentence was manifestly inadequate. During the hearing of the appeal, the Director sought leave to withdraw Ground 1. The Court granted leave.

It appears that both parties had assumed that the learned sentencing judge had the power to recall the original sentence and impose a new sentence, as he purported to do. However, at the hearing of the appeal, the Court suggested to the parties that there was at least a serious question as to whether s 412 of the Criminal Procedure Act permitted the sentencing judge to do so. The Court suggested that the learned sentencing judge might have been functus officio. The Court also referred the parties to the decision of the Full Court of the Supreme Court in R v Brattoli.[3] In that case, the Full Court held that if the County Court purports to impose a sentence that is beyond its power, the sentence is a nullity and the County Court can simply revisit the matter and impose a new sentence without relying on any power of amendment.
[3][1971] VR 446, 447.

The Director then sought leave to add a new ground of appeal — Ground 3 — that both of the sentences imposed on the respondent were invalid. The Court reserved its decision on the question of leave and directed the parties to file supplementary written submissions on the functus officio issue.

In his supplementary written submission, the Director now contends that the sentencing judge was functus officio after the original sentence had passed into the record of the Court. He submits that the second sentence is invalid. The Director maintains that the respondent falls to be resentenced by this Court. The respondent, in his supplementary submission, takes a different position. He contends that the sentencing judge was not functus officio because the first sentence was a nullity.

I would grant the Director leave to add Ground 3. The appeal therefore raises the following questions:

1.        Is the second sentence invalid?
2.        If not, is the second sentence manifestly inadequate?
3.        If yes, should the appeal be allowed?

For reasons that follow, I would answer these questions as follows. The first sentence was an order made by an inferior court in excess of jurisdiction. It was a nullity. The sentencing power remained unexercised and the sentencing judge was not functus officio. His Honour had the power to impose the second sentence. The second sentence is therefore valid and effective until set aside.

The second sentence was manifestly inadequate on the facts before the learned sentencing judge. However, on the facts as they stand now, the Court should exercise its discretion to dismiss the appeal.

History of these proceedings

The respondent was arrested on 2 November 2011. He admitted his guilt and entered a plea at the earliest opportunity to RCSI. He spent 15 days in custody.

On 28 March 2012 the sentencing judge sentenced the respondent to three years imprisonment, wholly suspended.[4] His Honour noted that ‘[t]here is no issue as to the need for a sentence of imprisonment’.[5] Rather, the real question was ‘whether any of that sentence of imprisonment should be immediate.’[6] The judge applied s 27 of the Sentencing Act 1991 and found that the offence was not a defined serious offence, that there was no need for any proof of exceptional circumstances and given the factors found in the section it was desirable that a suspended sentence be imposed.
[4]DPP v Edwards (Unreported, County Court, Judge McInerney, 28 March and 23 April 2012) [71] (‘Sentence’).
[5]Sentence [51].
[6]Ibid.

His Honour did not consider whether this was a ‘significant offence’. Since the introduction of the Sentencing Further Amendment Act 2011, an offence of RCSI is classified as a ‘significant offence’ (unless determined summarily) and therefore one which cannot receive a suspended sentence. The options that would have been realistically available to the judge were: an immediate term of imprisonment, a term of imprisonment of three months or less and a community correction order, or a community correction order imposed with or without a fine.

The error was eventually brought to the attention of the learned sentencing judge. His Honour considered that he had the power to re-sentence the respondent pursuant to s 412 of the Criminal Procedure Act 2009, which provides:

For the purposes of correcting any defect or error in substance or in form a court may amend any summons, warrant, plea, judgement or order.

On 23 April 2012 the sentencing judge purported to re-sentence the respondent to a three year CCO.

The County Court has no general power to recall and reconsider sentencing orders

The general position with respect to the finality of sentencing orders is clear. Once a court has made a sentencing order and the order has passed into the court’s records, the court is functus officio. The court cannot reconsider the matter, recall the original order and make a new order. This general position is supported by a long line of authority.[7]
[7]See, eg, Bailey v Marinoff (1971) 125 CLR 529.

This general position is subject to some qualifications, of which three are presently relevant. First, the court may have inherent or implied power to correct some kinds of errors in its orders (the ‘slip rule’). Secondly, statute may confer on the court additional power to vary a sentencing order. For example, statute may expand the court’s power to correct an error in the original order beyond the type of errors that can be corrected under the court’s inherent or implied power to correct errors. Statute may also confer power to vary a sentencing order in other circumstances.[8] Thirdly, if the original sentencing order was made in excess of jurisdiction, it may lack sufficient legal effect to trigger the application of the functus officio doctrine. The existence of this third category is controversial.
[8]For example, if a court finds a person guilty of contravening a CCO, the court can cancel the CCO and re-sentence the offender for the original offence for which he or she was sentenced to the CCO: Sentencing Act s 83AS(1)(c).

In this case, the original sentencing order passed into the records of the County Court on the day it was made. The general principle therefore applies, subject to the qualifications. It is also clear that the first qualification did not apply. It follows that unless the second or third qualification applied, the County Court was functus officio. The parties did not suggest otherwise.

For reasons that follow, I consider that the third qualification applied and the County Court was not functus officio.

Inferior court orders made in excess of jurisdiction generally lack legal effect

There is long line of authority on the issue of legal effectiveness of court orders made in excess of jurisdiction. This line of authority reveals a fundamental distinction between orders made by superior courts and orders made by inferior courts. Superior court orders are valid and effective until set aside, even if made in excess of jurisdiction. Generally, inferior court orders are not.

Unfortunately, the parties’ supplementary written submissions on the functus officio issue fail to advert to this distinction and also fail to refer to the abundance of authority on this issue. The submissions refer to a handful of criminal cases without attempting to address the question of validity of the original sentence by reference to general principles of administrative law.

The Australian authorities dealing with the distinction between superior and inferior court orders are numerous. What follows is a selection of relevant cases showing that shows that the distinction is extremely well-established and continues to find support in recent decisions of the High Court and intermediate appellate courts.

As long ago as 1934, in Ex parte Williams,[9] Dixon J held that the sentence subject of the challenge in that case was not a nullity because it was an order made by a superior court:

I am of opinion that it is not possible to challenge upon habeas corpus proceedings the validity of such an order of the Supreme Court as that which increased the prisoner's sentence. That writ cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity. But the Supreme Court is a superior Court of record having general jurisdiction. It may not be true that such a Court has in all cases an authority to determine its own jurisdiction, which makes it impossible ever to treat its orders as nullities, but it is in this particular instance true that it had authority conclusively to determine the existence of its own jurisdiction, and so, whether it correctly determined it or not, to make an order which was a valid judicial order, and not a mere nullity operating to give no authority to hold the prisoner.[10]

[9](1934) 51 CLR 545.

[10]Ibid, 550 (emphasis added).

The reference to the Supreme Court being a superior court obviously suggests that the position with respect to inferior courts is different.

Subsequently, in Pariseinne Basket Shoes Pty Ltd,[11] Dixon J (Evatt and McTiernan JJ agreeing) held that an inferior court order made without jurisdiction was a nullity:

In courts possessing the power, by judicial writ, to restrain inferior tribunals from an excess of jurisdiction, there has ever been a tendency to draw within the scope of the remedy provided by the writ complaints that the inferior court has proceeded with some gross disregard of the forms of law or the principles of justice. But this tendency has been checked again and again, and the clear distinction must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable…[12]

[11]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 (’ Parisienne Basket Shoes’).

[12]Ibid, 389 (emphasis added).

Then, in Cameron v Cole,[13] Rich J referred to the distinction between inferior and superior courts in discussing the power of a court to recall an order:

First, a court which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law … Second, if in the course of a purported trial a fundamental irregularity has occurred which prevents it from being a trial at all, the decision of the Court is either void or voidable. It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside … I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Greene MR, in Craig v Kanssen, where he says that ‘a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside,’ is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is ‘between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity’ fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court … but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion. Since the case before the Master of the Rolls was one of the former type, although no exception can be taken to his Lordship's actual conclusion, his criterion was, with all deference, somewhat inaptly expressed. If the decision is void (as it may be in the case of an inferior court), the court may proceed to a real trial without any formal setting aside of the void decision …[14]

[13](1944) 68 CLR 571.

[14]Ibid, 590–591 (Rich J) (emphasis added, footnotes omitted).

In the same case, McTiernan J considered that the question of whether an order made by the Federal Court of Bankruptcy was a nullity depended on whether the Court was a superior court:

Where a court is a superior court of record having general jurisdiction it is impossible to treat any of its orders as a nullity. It may determine conclusively its own jurisdiction, and whether the court determines it correctly or not, its order is valid (Ex parte Williams).
The Court of Bankruptcy is an inferior court relatively, but it does not follow that intrinsically it is not a superior court…
The Federal Court of Bankruptcy is not, of course, a superior court of record having general jurisdiction. The Court is created by statute and vested by statute with jurisdiction in bankruptcy. This is a special jurisdiction, and for that reason limited. Its jurisdiction is limited to bankruptcy, but it has substantially all the powers of a superior court of record as to the subject matter of its jurisdiction and its incidents. Though a court of limited jurisdiction, it is a superior court. …[15]

[15]Ibid, 598–599 (McTiernan J) (emphasis added, footnotes omitted).

Williams J adopted the same approach:

[A] court with a limited jurisdiction may be a superior court, provided that it possesses and exercises the superior rights, privileges and authorities of those whose functions it has superseded. Where a new court is created by an Act, it may be created as a superior court by express words or by necessary implication …
In the present case it follows, in my opinion, by necessary implication from the circumstances to which I have referred, that the Federal Court of Bankruptcy is a superior court … When, therefore, the Federal Court of Bankruptcy has made a sequestration order under the Act, it is not, in my opinion, a nullity, so that, even if it has been irregularly obtained, it operates until it is set aside …[16]

[16]Ibid, 607 (Williams J) (emphasis added, footnotes omitted).

In 2006, these three passages from Cameron v Cole were cited, without apparent disapproval, in the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v Gordon.[17]
[17](2006) 225 CLR 364 [11] (emphasis added, footnotes omitted) (‘Berowra’).

In Attorney-General (NSW) v Mayas Pty Ltd,[18] McHugh JA held (Hope JA agreeing) that an order of a Magistrate made without jurisdiction was a nullity and could be contravened with impunity:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.[19]

[18](1988) 14 NSWLR 342.

[19]Ibid, 357.

In Pelechowski v Registrar of the NSW Court of Appeal,[20] the joint judgment of Gaudron, Gummow and Callinan JJ quoted the above passage with approval.[21] Their Honours then applied the principle to an injunction purportedly granted by the NSW District Court. They held that the Court had no power to grant the injunction, the order was a nullity and the appellant could not be guilty of contempt by breaching the order. McHugh J, who dissented on the issue of whether the District Court had power to grant the injunction, summarised the position as follows:

A long line of cases establishes that an order made by an inferior court, such as the District Court, will be null and void if that Court did not have jurisdiction to make the order. Those decisions also hold that such an order cannot found a prosecution for contempt.[22]

[20](1999) 198 CLR 435.

[21]Ibid [27] and [55].

[22]Ibid [71] (footnote omitted).

Berowra, to which I have already referred, concerned the effect of s 151C of Workers Compensation Act 1987 (NSW). The section provided that, where it applied, a person was ‘not entitled to commence court proceedings for damages’ until a certain time period had elapsed. The plaintiff purported to commence proceedings in breach of this section. The defendant admitted liability and took numerous steps in the proceedings without alluding to s 151C. When the defendant first raised the issue of s 151C, the plaintiff purported to accept the defendant’s previous offer of compromise which remained open and could not be withdrawn without leave of the Court. In order to overcome acceptance of the offer, the defendant contended that proceedings were a ‘nullity’. The High Court rejected this submission. The joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ held that the submission failed to distinguish between superior and inferior courts:

10.Some attention should be given at the outset to the result which the employer submits must attend the non-compliance by the worker with s 151C. It was said that such proceedings are ‘invalid’ or a ‘nullity’. In Minister for Immigration and Multicultural Affairs v Bhardwaj, three members of this Court pointed out in the context of administrative decisions that such expressions are statements of conclusion which are not necessarily helpful in resolving the rights of parties. Dangers are equally present in the context of proceedings in, and acts and orders of, courts.
11.In particular, the introduction into s 151C of concepts of ‘nullity’ and ‘invalidity’ is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. That distinction has been the subject of comment in this Court, although due regard is to be had to the constitutional context. In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter. Thus, in the majority judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW), it was decided that, because an order made by an inferior court (in that case the New South Wales District Court) without power to do so was a ‘nullity’, it could not found a proceeding for contempt. This situation was contrasted to that arising where an order was made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed.[23]

[23]Emphasis added, footnotes omitted.

The proceedings in Berowra were commenced in the NSW District Court — an inferior court. However, the joint judgment held that s 151C did not limit the jurisdiction of the Court and that proceedings commenced in breach of s 151C were within the District Court’s jurisdiction.[24]

[24]Berowra (2006) 225 CLR 364 [33]–[34].

In subsequent decisions, the NSW Court of Appeal and Court of Criminal Appeal have regarded Berowra and Pelechowski as authorities for the proposition that an inferior court order made without power is a nullity that does not need to be set aside.

Wise v The Queen[25] concerned a purported sentence made by the NSW District Court. The appellant was initially sentenced to a suspended sentence but the sentencing judge did not set a non-parole period. When the appellant breached the conditions of the suspended sentence, Charteris DCJ activated the suspended sentence but purported to vary it by setting a non-parole period. However, the judge did not have the power to vary the suspended sentence. The NSW Court of Appeal (Rothman J, with Spigleman CJ and Howie J agreeing) held, citing Pelechowski, that the new sentence was void and the original sentence remained effective:

16Charteris DCJ had no jurisdiction or power to sentence on Count 1, as he purported to do and the order on that Count is void. The District Court of NSW is a court of record, but not a superior court of record; if it makes an order without jurisdiction, the order is void: Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435. Further, there is no capacity to appeal against the sentence purportedly imposed on this Count by Charteris DCJ because that sentence had or has no effect in law… As a consequence, the original sentence on Count 1 is still extant.

[25][2006] NSWCCA 264.

Similarly, in Deveigne v Askar,[26] Giles JA (with whom Hodgson JA agreed) cited Pelechowski and Berowra as authorities for the proposition that ‘[s]trictly an order need not be set aside if truly a nullity, for example if made without power’.[27]
[26](2007) 69 NSWLR 327.
[27]Ibid [9].

In DPP v TY,[28] the Victorian Court of Appeal held that a sentencing order made by the Supreme Court is valid until set aside. In doing so, the Court expressly referred to the Supreme Court’s status as a superior court:

It is necessary that a court order imposing sentence be — and be treated as — valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal). For analogous reasons, an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal. Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders - at least those of superior courts - is quite different in this respect from that of administrative decisions. Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[29]

[28][2009] VSCA 226.

[29]Ibid [27] (emphasis added, footnotes omitted). See also Rich v Secretary to the Department of Justice [2011] VSCA 402 where the Court considered that TY stood for the proposition that ‘the order of a superior court is valid and binding until set aside or varied’: at [9].

In Appleyard v Walker,[30] the WA Court of Appeal (McLure JA with Pullin and Newnes JJA agreeing) held that an inferior court order made without jurisdiction does not give rise to issue estoppel:

The doctrines of res judicata and issue estoppel do not apply to a decision of an inferior court made without jurisdiction because, unless the statute conferring jurisdiction otherwise provides, the decision is a nullity … The same is not true of a decision of a superior court of general jurisdiction.[31]

[30][2009] WASCA 141.

[31]Ibid [20] (emphasis added, citations omitted).

It is clear that the principle is not confined to orders made in civil proceedings. Ex parte Williams, Pariseinne Basket Shoes, Wise, and TY all dealt with orders made in criminal proceedings.

It follows from these authorities that, at common law, an inferior court order made without jurisdiction is a nullity that lacks legal effectiveness for most, if not all, purposes. The principle applies to any kind of order, including sentencing orders.

From a practical and also a policy viewpoint the principle may be thought to be somewhat unsatisfactory. Its undesirable consequences are obvious. It potentially creates uncertainty for parties and other affected persons in the conduct of their affairs in reliance on an order. First, the principle means that an inferior court order is not only liable to be set aside on appeal or judicial review but that it may lack legal effectiveness ab initio. Thus, for example, in a particular instance a person to whom the order is directed may be able to disregard it with impunity. Secondly, the principle may open an inferior court order to collateral challenge outside of the time limits for judicial review.

The policy advantages of treating a decision in excess of jurisdiction as a nullity are less obvious for inferior court orders than for administrative decisions. Unlike administrative decision-makers, inferior courts are constituted by judicial officers who these days are almost always legally qualified. These judicial officers generally enjoy significant protections that safeguard their independence, such as tenure. Unlike administrative decision-makers, judicial officers make orders after a relatively rigorous process of judicial decision-making. Further, with administrative decisions, merits review is only available for a subset of decisions specifically designated by the legislature. For other decisions, the strictures of judicial review impose significant limits on the ability of affected parties to challenge the decision. In contrast, inferior court orders may be challenged not only through judicial review but, in most cases, through statutory avenues of appeal which often offer wider grounds of review. These statutory appeal rights impose further discipline on decision-making in inferior courts and provide affected parties with an additional and less technical avenue for challenging a decision.

In my view, there is much to be said for the proposition that orderly administration of justice would be enhanced if inferior court orders were valid and effective until set aside. However, the contrary position is firmly entrenched in Australian law. It is recognised in the decisions of the High Court that are binding on this Court. Furthermore, as a matter of comity, it is not possible to disregard the decisions of other intermediate appellate courts.[32] If the position is to be re-considered, it could only be done by the High Court, [33] or possibly by legislative amendment.
[32]See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 [135].
[33]Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 [3].

Three further questions

The common law principle that an inferior court order made in excess of jurisdiction is generally a nullity does not dispose of the issue of whether the learned sentencing judge in this case had power to make the second sentencing order. Further matters remain.

There is the matter of whether the original sentence was an order made in excess of jurisdiction. It is abundantly clear that the Sentencing Act requires that a suspended sentence not be imposed in respect of the offence of RCSI when determined as an indictable offence. Thus, the question is prompted: is the failure to comply with this requirement a jurisdictional error or merely an error of law within jurisdiction?

In addition, the High Court has not accepted what is sometimes called the ‘theory of absolute nullity’.[34] An order made by an inferior court in excess of jurisdiction may have some legal effect for some purposes. Certainly, a statute may give such an order some legal effect, for example by treating it as an order that may be appealed against. Furthermore, despite the sometimes unequivocal language used in the cases to describe the nullity of inferior court orders attended by jurisdictional error, it is at least arguable that the common law may also treat such an order as having some effect.
[34]Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 [152] (Hayne J).

The validity of the second sentencing order the subject of this appeal depends on three questions:

1.Is it a jurisdictional error for the County Court to make an order suspending a sentence imposed for a ‘serious’ or ‘significant’ offence contrary to s 27(2B) of the Sentencing Act?
2.At common law, does an inferior court order made in excess of jurisdiction have sufficient legal effect to trigger the operation of the
functus officio doctrine and prevent the inferior court from revisiting the matter and making a new order?
3.If the answer is to the second question is no, did the Parliament alter the common law position to give the purported order sufficient legal effect to attract the operation of the functus officio doctrine?

As I have mentioned, during the hearing the Court directed the parties’ attention to the decision of the Full Court of this Court in Brattoli. In that case, a County Court judge purported to impose a backdated sentence. The judge had no power to do so. Upon learning of the error, the judge purported to re-sentence the offender to a non-backdated term such that the remaining time to be served remained the same as that which the judge had originally intended (nine months). The Full Court (Winneke CJ, Adam and Newton JJ) held that the first sentence was a nullity, leaving the sentencing power unexercised and entitling the County Court to impose a new sentence:

[I]t was beyond the power of the learned judge to fix the commencing date as he purported to do, that date being prior to the commencement of the sitting in which the sentence was imposed. As that provision was, in our view, an integral and inseverable part of the sentence, the result, in our opinion, is that the whole sentence was invalid as being in excess of the power possessed by the learned judge. That involved, we think, the consequence that the learned judge had not exercised his power to sentence the applicant at that stage, and it follows, we think, that the signing of the first triplicate by the learned judge and the registrar gave no legal effect or validity to a sentence which in itself possessed neither. There was, we think, in those circumstances nothing standing in the way of the learned judge to pronounce judgment upon the conviction returned by the jury. When he brought the applicant back on 26 October 1970, no judgment had in law been pronounced, and, accordingly, he had, we think, power to impose the sentence of nine months’ imprisonment.[35]

[35][1971] VR 446, 447.

In his supplementary written submission, the Director points out that in Brattoli the sentencing judge’s intention did not change. The second order merely implemented the outcome that the sentencing judge sought to achieve with the first order. In contrast, in this case the second sentencing order is entirely different from the first order. The judge here effectively purported to re-exercise the sentencing discretion. The Director appears to contend that this is a ground for distinguishing Brattoli. He submits that the Court should not follow Brattoli ‘in this instance’. Having distinguished Brattoli, the Director submits that the Court does not need to decide whether there is scope for the continued application of the principle Brattoli in circumstances where there is a wholly invalid sentence and where the sentence subsequently imposed reflects what was initially intended.

In my view, this distinction is not relevant to the Brattoli principle. I accept that there is a sharp difference between a subsequent order that merely implements the intention that the judge failed to implement in the first order and a subsequent order where the judge re-exercises the sentencing discretion afresh. Yet, the reason why the Full Court held in Brattoli that the sentencing judge could make the second order was because the Court considered that the first order was a nullity. Because the first order was a nullity, ‘no judgment had in law been pronounced’ and there was ‘nothing standing in the way’ of the judge making a new order.[36] Whether the first order is a nullity depends on the relevant common law principles and statutory provisions. It cannot depend on the individual judge’s intention underlying the second order.
[36]Ibid.

It may be that the Director is submitting that the Brattoli principle is only a partial exception to functus officio. That is, the first order, though a nullity, has sufficient legal effect to prevent the judge making a second order unless the second order merely implements the original intention behind the first order. The submission may well have policy merit. However, it is not supported by authority and is inconsistent with the logic underlying the Brattoli principle. In my view, to say that an invalid decision has sufficient legal effect to prevent the judge from re-exercising their decision-making power but insufficient effect to prevent him or her from making a new order that implements the original intention would taking the idea of relative nullity too far. It would be an unprincipled and haphazard exception to nullity.

Having considered the Director’s submission, I conclude that the first sentencing order was attended by jurisdictional error. At common law, an inferior court order attended by jurisdictional error does not attract the operation of the functus officio doctrine. The relevant statutory provisions do not alter the common law position. My reasons follow.

The original sentencing order was attended by jurisdictional error

The starting point of the analysis must be the High Court’s statement of principle in Craig v South Australia.[37] As the High Court explained in Craig

[a]n inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist ...[38]

[37](1995) 184 CLR 163 (‘Craig’).

[38]Ibid 177.

The plainest category of jurisdictional error is where ‘the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’.[39] This case clearly does not fall within this category. The County Court has jurisdiction to hear and determine prosecutions for indictable offences, including RCSI. Further, the County Court generally has power to make suspended sentence orders.
[39]Ibid (emphasis added).

A less obvious category of jurisdictional error is where, ‘while acting wholly within the general area of its jurisdiction’, the inferior court commits jurisdictional error ‘by doing something which it lacks authority to do’.[40] Indeed, this is the category that appears to be relevant to this case. The County Court lacked authority to impose a suspended sentence for the offence of RCSI.

[40]Ibid.

One of the examples of jurisdictional error within this category that the High Court gave in Craig is apposite. The example is an inferior court purporting to act in circumstances where a pre-condition to its jurisdiction did not exist.[41] Here, s 27(2B) of the Sentencing Act creates a pre-condition to the power to make an order suspending a sentence for an offence. The order can only be made if the offence is a ‘serious’ or ‘significant’ offence. That condition was not satisfied in this case.
[41]Ibid.

As Dixon J pointed out in Parisienne Basket Shoes, ordinarily, making jurisdiction conditional on the actual existence of a fact would lead to inconvenience because ‘the validity of the proceedings and orders [would] always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid’.[42] Hence, in the absence of clear language to the contrary, the legislature is ordinarily presumed to be adopting the more convenient course of making jurisdiction conditional on the court’s opinion that the fact exists rather than the actual existence of the fact.[43] However, here the question of whether the offence for which an offender is being sentenced is a ‘serious’ or ‘significant’ offence is not a contestable question of fact. Rather, it is a pure question of law that always has a clear and simple answer. The ‘serious’ and ‘significant’ offences are listed in the Act. Either the offence for which the offender is being sentenced is listed or it is not. Hence, the rationale behind the presumption does not apply to s 27(2B). In my view the provision makes the power to suspend a sentence conditional on the offence actually not being a ‘significant’ or ‘serious’ offence. In any event, the learned sentencing judge did not mistakenly consider that offence for which he was sentencing the respondent was not a ‘significant’ offence. Rather, as his Honour’s reasons make clear, he simply overlooked the fact that a suspended could not be imposed for a ‘significant’ offence.[44]
[42]Parisienne Basket Shoes (1938) 59 CLR 369, 391.
[43]Ibid.
[44]Sentence [71].

Another category of jurisdictional error is where an inferior court ‘misconstrues [the empowering] statute or other instrument and thereby misconceives … the extent of its powers in the circumstances of the particular case’.[45] With this category, ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’.[46] This category of jurisdictional error also appears to be applicable. Here, the judge misconceived the extent of his powers by failing to appreciate that he had no power to suspend a sentence of imprisonment imposed in respect of a ‘significant’ offence.
[45]Craig (1995) 184 CLR 163, 177–178.
[46]Ibid 178.

In Craig the High Court also provided examples of errors that would constitute errors of law within jurisdiction for an inferior court. First, errors in identifying relevant issues and formulating relevant questions; secondly, errors in determining what evidence is relevant; and thirdly, taking into account irrelevant considerations or failing to take into account relevant considerations.[47]
[47]Ibid 179–180.

None of these examples of intra-jurisdictional error arise. Hence, the error in this case is, prima facie, a jurisdictional error.

The next matter is the relevant jurisdictional provision of the County Court Act 1958. Section 36A(1) of the Act confers on the County Court jurisdiction ‘to inquire into hear and determine and adjudge all indictable offences’ except certain offences over which the Supreme Court has exclusive jurisdiction. Section 36A(3) gives the County Court the same powers with respect to indictable offences as the Supreme Court:

Subject to subsection (1) and unless otherwise expressly provided the County Court shall have jurisdiction and powers with respect to indictable offences and the trial thereof as fully and amply to all intents and purposes as the Supreme Court of Victoria in like matters and the general principles of practice and procedure observed for the time being in the Supreme Court of Victoria with respect to the trial or determination of indictable offences shall be adopted and applied in the County Court.

The sub-section does not take the matters very far. It has long been understood in Victoria that the County Court is a inferior court.[48] It is also clear that neither the Supreme Court nor the County Court have the power to suspend a sentence of imprisonment for a ‘significant’ offence contrary to s 27(2B) of the Sentencing Act. The fact that the County Court generally has the same power and procedure as the Supreme Court with respect to indictable offences does not, in my view, bring an order that breaches a statutory prohibition within the jurisdiction of the County Court.
[48]R v Judge Martin; Ex parte Attorney-General [1973] VR 339.

Another relevant matter is the fact that the Supreme Court and the County Court have concurrent jurisdiction with respect to RCSI. If failing to comply with s 27(2B) is a jurisdictional error, the legal effectiveness of the order that suspends a sentence of imprisonment for RCSI will depend on the court in which the proceedings are conducted. The order will be a nullity if the proceedings are conducted in the County Court because it is an inferior Court. However, if the proceedings are conducted in the Supreme Court, the order will be effective until set aside. The practical difficulty is self-evident, particularly given that on occasion cases move between the two courts by way of uplift or remitter.

A somewhat similar situation existed in Berowra. Section 151C(1) of the Workers Compensation Act 1987 (NSW) provided that a person is ‘not entitled to commence court proceedings for damages’ until a certain time period had elapsed. It applied to proceedings in both inferior courts and in the Supreme Court. One of the reasons given by the joint judgment for construing 151C(1) as not affecting jurisdiction was that ‘[i]n construing s 151C, this Court should not prefer a construction which would result in s 151C having differential application depending upon the court in which proceedings were commenced’.[49]
[49]Berowra (2006) 225 CLR 364 [12] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

However, Berowra was concerned with validity of proceedings rather than orders. The High Court in Berowra considered that it would be anomalous if s 151C rendered a non-compliant proceeding and all steps taken in the proceeding a nullity if the proceeding was commenced in an inferior court but not if it was commenced in the Supreme Court. The plurality noted that ordinarily the commencement of a proceeding engages the jurisdiction of the court. It is then up to the defendant to object to the proceeding if they wish to do so. If the defendant does wish to object, they have to do so through the appropriate avenues prescribed by court rules.[50] Further, the purpose of the section — to encourage settlement — would be impeded if the section nullified non-compliant proceedings.[51] Finally, whether the relevant period has elapsed may not be obvious from the originating process. If s 151C were jurisdictional, the court would be required ‘to undertake a jurisdictional inquiry in each case as to whether or not s 151C has been satisfied’. The inquiry ‘is likely to be complex’. Undertaking such a jurisdictional inquiry is ‘not the usual function which a court (as distinct from an administrative body) performs when called upon to exercise judicial power in a matter which prima facie is within the jurisdiction of the court’.[52]
[50]Ibid [13]–[15] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[51]Ibid [26]—[27] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[52]Ibid [32] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

The context of s 27(2B) of the Sentencing Act is quite different. It deals with orders rather than proceedings. With a proceeding, the plaintiff chooses whether, when and in which forum to commence a proceeding. With an order, it is the court that decides what order to make. Further, there is no element of choice for either the court or the parties. A defendant in a civil proceeding may waive a restriction, for example a limitation period. However, the prosecution cannot waive the prohibition imposed by s 27(2B). Further, the inquiry into whether s 27(2B) applies is very simple. And it is clearly an inquiry that the court is required to undertake of its own motion in every case, even if the parties fail to raise s 27(2B). Finally, the desirability of avoiding differential application is not a compelling reason for construing a provision that limits the court’s power to make a particular order as non-jurisdictional merely because both inferior and superior courts have jurisdiction with respect to the subject matter. The differential application is simply an inherent consequence of the common law distinction between superior and inferior courts.

Another relevant matter is the language in which s 27(2B) is expressed. In Berowra, the High Court considered it relevant that s 151C of the Workers’ Compensation Act 1987 (NSW) was ‘not addressed as a command to the court but to the litigants’.[53] Here, the prohibition in s 27(2B) is directed to the court:

a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.

[53]Ibid [28] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

For these reasons, I consider that the order that purported to suspend the custodial sentence imposed on the respondent for the offence of RCSI is vitiated by jurisdictional error. The suspension order cannot be severed from the order sentencing the respondent to a suspended term of imprisonment. It follows that the entirety of the first sentencing order is vitiated by jurisdictional error.

At common law, inferior court is not functus officio if its order is vitiated by jurisdictional error

For reasons that follow, I consider that the common law position is that an inferior court order vitiated by jurisdictional error does not have sufficient legal effect to trigger the application of the functus officio doctrine. That is, at common law, an inferior court does become functus officio by making an order in excess of jurisdiction. This is so for four reasons.

First, this view corresponds to the common law position in relation to administrative tribunals and the reasoning underlying that position applies with equal force to inferior courts. In Minister for Immigration and Multicultural Affairs v Bhardwaj,[54] the Immigration Review Tribunal made a decision in the absence of a party because a faxed adjournment request was not brought to the Tribunal member’s attention through an administrative oversight. The Tribunal then purported to conduct another hearing and make a fresh decision. The High Court held that the original decision was vitiated by jurisdictional error. The Court held that the Tribunal was not functus officio and was entitled to make the second decision. Gaudron and Gummow JJ reached this conclusion on the basis that the first decision had no legal effect:
[54](2002) 209 CLR 597 (‘Bhardwaj’).

51.There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

…
53.… Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.[55]

[55]Footnotes omitted.

McHugh J agreed with Gaudron and Gummow JJ subject to some minor qualifications that are not presently relevant.

The reasoning of Hayne J was similar. His Honour held that the relevant question was not whether the Tribunal had power to reconsider its original decision but whether the original purported decision was a ‘decision to which legal consequences should be attributed’.[56] His Honour held that the Tribunal was not functus officio because the first purported decision lacked legal effect:

{I]f the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.[57]

[56]Ibid [142]. Contra Jackson v Purton [2011] TASSC 28 [78] where Wood J held that the relevant question is whether, on proper construction of the relevant statute, ‘the power to reconsider exists’. The Full Court dismissed the appeal from Wood J: Purton v Jackson [2012] TASFC 2. I deal with the Full Court’s decision later in my reasons.

[57]Ibid [152] (original emphasis). See also Ibid [149].

In my view, it follows that in Bhardwaj the majority of the High Court decided that, subject to statutory provisions to the contrary, an administrative decision vitiated by jurisdictional error does not have sufficient legal effect to trigger the application of the functus officio doctrine.[58]
[58]See also Purton v Jackson [2012] TASFC 2 [9] (Blow J, Crawford CJ and Evans J agreeing). Contra Jadwan Pty Ltd v Secretary of the Department of Health and Aged Care (2003) 145 FCR 1 [40].

If there was any doubt about whether the reasoning of Gaudron and Gummow JJ represents the law in Australia, this doubt was dispelled by Plaintiff S157/2002 v Commonwealth[59] where that reasoning was endorsed by a clear majority of the High Court. The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 quoted the judgment of Gaudron and Gummow in Bhardwaj as authority for the proposition that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’.[60]
[59](2003) 211 CLR 476.
[60]Ibid [76].

Further, the reasoning underlying the conclusions of Gaudron and Gummow JJ and Hayne J in Bhardwaj applies to inferior courts as much as it does to administrative tribunals. This is made plain by the reasons of Hayne J, which expressly contrast administrative tribunals with superior courts:

150.[T]o attribute legal consequences to the [first] decision of the Tribunal because, on its face, it purported to be a decision made under the [Migration] Act, not only begs the question that is presented about its legal consequences, it impermissibly confuses administrative decisions with the particular and peculiar features accorded to decisions of superior courts of record.
151In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues.

As with administrative decisions, inferior court orders lack these ‘particular and peculiar features’ of superior court orders. The distinction drawn by Hayne J therefore places inferior courts orders in the same category as administrative decisions.

Secondly, as Pelechowski establishes, the common law position is that a party is free to contravene an inferior court order vitiated by jurisdictional error without committing contempt. It would seem anomalous if the party the subject of the invalid order could disregard it but the court making the order could not.

Thirdly, there is nothing anomalous about the proposition that a County Court judge who makes an order beyond jurisdiction is able to correct the matter when a Supreme Court judge could not. It is not that the County Court has some special power to amend orders that the Supreme Court lacks. Rather, it is simply that a County Court order made in excess of jurisdiction lacks the legal effect that the same order would have if made by the Supreme Court. The Supreme Court judge’s inability to recall an order beyond jurisdiction once it has passed into the records of the court is a side effect of his or her ability to make legally effective orders in excess of jurisdiction. The situation is perhaps loosely analogous with Parliamentary sovereignty. The legislature’s inability to bind itself is not a limitation on power but a side effect of its unlimited power to repeal past Acts.

Fourthly, the decision of the Full Court of the Supreme Court in Brattoli is an authority directly on point. I should follow it unless satisfied it is ‘manifestly wrong’.[61]
[61]Green v The Queen (2011) 283 ALR 1 [83]–[87] (Heydon J).

The Director’s supplementary submissions refer to Jovanovic v The Queen[62] where the ACT Court of Appeal refused to follow Brattoli. The Court of Appeal held that ‘the sentencing judge is functus officio’ once the sentencing order passed into the records of the record of the court.[63] However, the order the subject of consideration in Jovanovic was made by the ACT Supreme Court — a superior court. Jovanovic makes no reference to inferior court orders or the distinction between superior and inferior courts. Thus, I would not read the statement in Jovanovic as applying to inferior courts. In any event insofar as the statement was intended to so apply, it is obiter. Therefore, Jovanovic does not overcome the stare decisis effect of Brattoli.
[62](1999) 92 FCR 580 (‘Jovanovic’).
[63]Ibid [42].

In light of Bhardwaj and Pelechowski I am not satisfied that Brattoli is plainly wrong. I would therefore follow Brattoli.

In summary, for these reasons, I consider that the common law position is that, subject to statutory modification, a decision of an inferior court vitiated by jurisdictional error lacks sufficient legal effect to make the inferior court functus officio.

The common law position is not modified by statute

A statute may confer some legal effect on an inferior court order vitiated by jurisdictional error.[64] For example, a statute conferring a right of appeal against an inferior court order may, on proper construction, permit an appeal against an order vitiated by jurisdictional error. Even with administrative decisions, statute may confer some legal effect on a purported decision vitiated by jurisdictional error.[65]
[64]See, eg, Wise v The Queen [2006] NSWCCA 264 [17] (Rothman J, Spigleman CJ and Howie J agreeing).
[65]See, eg, Director of Housing v Sudi [2011] VSCA 266 [43] (Warren CJ).

In this case, for the reasons that follow, I consider that there is nothing in the relevant statutes — the County Court Act, the Criminal Procedure Act and the Sentencing Act — to modify the common law position. That is, the relevant statutory provisions do not confer additional legal effect on a County Court sentencing order made in excess or jurisdiction so as to trigger the application of the functus officio doctrine.

The relevant statutory provisions are s 36A of the County Court Act, s 412 of the Criminal Procedure Act and ss 104 and 104A of the Sentencing Act.

I have already considered s 36A of the County Court, which confers criminal jurisdiction on the County Court. It is cast in very general terms. Nothing in the section suggests that it confers additional legal effect on County Court orders beyond jurisdiction.

Next is s 412 of the Criminal Procedure Act which gives judges a broadly-expressed power to amend orders:

412. Power to amend when there is a defect or error
For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.

Nothing in s 412 suggests that it is intended to limit the ability of a judge to make a fresh order in place of an original purported order that lacks legal effect. Nor would the provision be otiose if an inferior court that makes a sentencing order in excess of jurisdiction is empowered to make an order without relying on s 412. The section would still have work to do in cases where the error or defect in the original order is non-jurisdictional.

The same reasoning applies to the power to amend a sentence contained in s 104A of the Sentencing Act.

Finally, there is s 104(1) of the Sentencing Act which empowers the Supreme Court in a judicial review proceeding to resentence the offender if the original sentence imposed by the County Court or the Magistrates’ Court was beyond power:

If —
(a)a person has been sentenced (whether at first instance or on appeal) by a court (including the Supreme Court) for an offence; and
(b)if the sentencing court was the County Court or the Magistrates' Court, application is made to the Supreme Court for relief or remedy in the nature of certiorari to remove the proceeding into the Supreme Court; and
(c)the Supreme Court determines that the sentence imposed was beyond the power of the sentencing court or its own power, if it was the sentencing court-

the Supreme Court may, instead of setting aside the conviction, amend the conviction by substituting for the sentence imposed a sentence which the sentencing court had power to impose.

The provision contemplates that the Supreme Court may set aside an inferior court sentencing order that was beyond power. It is clear that relief in the nature of certiorari is available to quash a purported decision that lacks legal effect. The availability of certiorari does not give the original purported decision any legal effect beyond making it a valid subject of judicial review proceedings.

I acknowledge that my approach to construing the relevant legislation is somewhat inconsistent with the approach of the Full Court of the Supreme Court of Tasmania in Purton v Jackson.[66] The issue in Purton was whether an administrative tribunal — the Resource Management and Planning Appeal Tribunal — was functus officio. The Tribunal originally made a (purported) decision holding that it had no jurisdiction to hear a particular administrative appeal. Subsequently, the Supreme Court held that Tribunal did have jurisdiction. The original (purported) decision was therefore attended by jurisdictional error. Could the Tribunal re-visit the matter and make a fresh decision? The Full Court (Blow J, Crawford CJ and Evans J agreeing) held that it could not.
[66] Purton v Jackson [2012] TASFC 2 (‘Purton’).

As the starting point, Blow J considered that ‘when there is jurisdictional error, the legal and factual consequences of the decision, if any, will depend on the relevant legislation’.[67] This starting point is, of course, consistent with my approach.
[67]Ibid [11].

Justice Blow then examined the relevant legislative context and focused on three matters to justify his conclusion that the first decision had sufficient legal effect to trigger the application of the functus officio principle. First, his Honour noted that parties and other persons plan their affairs in reliance on planning decisions of the Tribunal and that considerable inconvenience would follow if the Tribunal were able to revisit a decision vitiated by jurisdictional error. This made it ‘highly desirable that the [T]ribunal should dispose of appeals promptly and conclusively’.[68] Secondly, the relevant statute conferred a right to appeal a decision of the Tribunal but only on a question of law and only within a prescribed time period.[69] Thirdly, the relevant statute also gave the Tribunal a limited power to correct certain kinds of errors in its own decisions.[70]
[68]Ibid [24].
[69]Ibid [26]
[70]Ibid [25].

In my view, the first two matters, while relevant, cannot generally be determinative on their own. Both matters were present in Bhardwaj. The administrative decision in Bhardwaj concerned the cancellation of a visa. The inconvenience flowing from the lack of finality of such a decision is obvious and enormous. As for appeal rights, in Bhardwaj the Migration Act conferred a limited right of judicial review of the Tribunal’s decision, subject to a time limit. The High Court did not consider these matters to be sufficient to show an intention of the part of the legislature to give a decision vitiated by jurisdictional error sufficient legal effect to prevent the Tribunal from re-visiting the decision.

As for the third matter, in my view, the conferral on the tribunal of a limited power to correct errors in its own decision is not relevant unless there is something to indicate that the legislature intended the power to be used to ‘correct’ purported decisions attended by jurisdictional error. It is irrelevant because it says nothing about the legislature’s intention with respect to decisions affected by a jurisdictional error as distinct from an intra-jurisdictional error.

It is unnecessary to express any concluded views on the correctness of the decision of Purton. For present purposes it is sufficient to note these differences with the Full Court’s approach. Of course, to the extent that the Full Court’s approach is inconsistent with the majority’s reasoning in Bhardwaj, I am bound to follow Bhardwaj.

Ultimately, I am of the view that the applicable statutes do not modify the common law position.

The sentencing judge was not functus officio

It follows from these reasons that the first purported sentencing order was attended by jurisdictional error. It generally lacked legal effect. The sentencing function remained undischarged. The learned sentencing judge was not functus officio and was able to revisit the matter and impose a new sentence.

Section 412

Because I have concluded that the original sentencing order lacked sufficient legal effect to trigger the application of the functus officio doctrine, it is unnecessary to consider whether, had the respondent been sentenced by a superior court, s 412 of the Criminal Procedure Act would have permitted the sentencing judge to recall the original order and resentence the respondent. I will, however, make the following observations.

The Court of Appeal has relied on s 412 to amend calculations of pre-sentence detention[71] but the provision has not otherwise been the subject of any judicial scrutiny.[72]
[71]In DPP v TY [2009] VSCA 226 [49]–[53] the Court was observed that an error in pre-sentence detention calculation is not a sentencing error per se or an error of law vitiating the exercise of the sentencing discretion and the question of PSD arises only after the sentence has been determined and pronounced. In WCB v The Queen [2010] VSCA 230 it was thought that a pre-sentence detention declaration could be corrected under s 104A(3) Sentencing Act.
[72]See, eg, Zamfirescu v The Queen [2012] VSCA 157 (Weinberg JA, Mandie JA agreeing); Smith v The Queen; Droste v The Queen [2012] VSCA 133 (Bongiorno JA, Curtain JA agreeing) and Scerri v The Queen [2010] VSCA 287.

The section appears in the ‘General’ chapter of the Act in a division entitled ‘Miscellaneous’. It clearly has general application.

The section appears to be broader in scope than the provisions of the Crimes Act 1958[73] and the Magistrates’ Court Act 1989[74] which it replaced. It exists concurrently (in relation to criminal matters) with the Supreme Court’s inherent power to amend orders and judgments (ie the ‘slip rule’), ss 104 and 104A of the Sentencing Act 1991 and r 1.14 of the Supreme Court (Criminal Procedure) Rules 2008. The broadest of those sections is s 104A which states:
[73]Section 416, now repealed. It applied to ‘judgment plea record process warrant panel or return’. See also s 436.
[74]Section 50, now repealed. It applied to warrants and orders.

104A.Power to correct clerical mistakes, etc.
(1) The judge or magistrate who gave judgment or passed sentence, or purported to give judgment or pass sentence, on the trial or hearing of an offence may, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the judgment or sentence or purported judgment or sentence if satisfied-
(a) that it contains-
(i)a clerical mistake; or
(ii) an error arising from an accidental slip or omission; or
(iii) a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or
(iv) a defect of form; or

(b)that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.

There is a fourteen day time limit after the sentence is imposed on the use of the power. In DPP v Green[75] the Court of Appeal held that the section

is an obviously useful provision, directed to the avoidance of injustice where error is quickly detected and intended to remove the need for the institution of appeal proceedings to address slips, miscalculations or matters that undoubtedly would have been dealt with by effecting a virtually immediate amendment. [76]

[75](2007) 17 VR 293

[76] Ibid [12].

In this case, the time limit had expired before the sentencing judge purported to recall the first sentence.

The Explanatory Memorandum merely notes in regard to s 412 that it ‘ensures that complex appeal and judicial review processes are not needed to correct defects or errors.’ A purpose of the Act more generally is ‘to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court’. The Second Reading Speech describes the Bill as promoting efficiency, consistency, certainty and flexibility and notes the value of Court time and expense involved in Court appearances.[77]
[77]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4982 (The Attorney-General, the Hon. Rob Hulls, MP).

Victoria does not have any provision that expressly states that a court may re-open proceedings or rescind or recall a sentence and remake or amend a sentence if an error of law (such as imposing a penalty that is contrary to law) occurred when the sentence was imposed. Such provisions exist in New South Wales, the Northern Territory, the Australian Capital Territory, Tasmania, Western Australia and Queensland.[78] These provisions (or their predecessors) have been given a broad interpretation[79] and relied upon to consider or amend a wide variety of errors such as: mistaking the maximum penalty,[80] wrongly calculating pre-sentence detention,[81] wrongly assessing a factor as aggravating and failing to properly exercise the sentencing discretion.[82] They were also considered in circumstances where if the true facts had been known a different sentence must have been imposed[83] and to (slightly) reduce a non-parole period to give effect to a judge’s intention that the offender serve their sentence as a juvenile offender.[84]

[78] Crimes (Sentencing Procedure) Act 1999 (NSW) s 43; Sentencing Act (NT) s 112; Crimes (Sentencing) Act 2005 (ACT) s 61; Sentencing Act 1997 (Tas) s 94; Sentencing Act 1995 (WA) s 37; Penalties and Sentences Act 1992 (QLD) s 188; Summary Procedure Act 1921 (SA) ss 76A, 76B. Some of these provisions also include errors of fact or matters pertaining to the interests of justice.

[79]See, eg, discussion in Ho v DPP (1995) 37 NSWLR 393, 402.

[80] Traegar v Pires de Albuquerque (1997) 18 WAR 432.

[81] R v Finnie (No 2) [2004] NSWCCA 150.

[82] Melville v The Queen (1999) 150 FLR 296 (Court of Criminal Appeal of the Northern Territory).

[83] Traeger v Pires de Albuquerque (1997) 18 WAR 432 (Court of Appeal of Western Australia).

[84] R v DGP [2010] NSWSC 1408.

An error of law appears to encompass both statute and common law.[85] The sections do not appear to be so broad as to be engaged merely where a sentencing judge has changed his or her mind.[86]
[85] Melville v The Queen (1999) 150 FLR 296 [26]-[27] citing authorities from Queensland, New South Wales and Western Australia.
[86] Staats v The Queen (1999) 123 NTR 16 [27] (Angel J); Shortland v Heath [1977] WAR 61, 62; R v Williams; Ex parte Biggs [1989] 1 Qd R 594 at 597.

The Court of Appeal of NSW, after considering the NSW Act and its background material, has concluded that:

whilst avoiding a re-hearing of the merits of the penalty, it is common ground that the purpose of the section is to permit the correction of mistakes where ‘such correction would have saved the cost, delay and expense involved in having to institute an appeal’ (see R v Tolmie (at 420)) or, I would add, in being obliged to seek judicial review. For the correction of arguable mistakes in sentencing, the section should be given the widest possible operation … [87]

[87] Ho v DPP (1995) 37 NSWLR 393, 403 (Kirby P, Gleeson CJ and Sheller JA agreeing).

In contrast to s 412, each of those sections expressly provide that a new hearing on sentence must be held before the offender may be re-sentenced.

Save for these observations I say nothing more.

The second sentence was manifestly inadequate

I now turn to the remaining ground of appeal — that the second sentence is manifestly inadequate. For reasons that follow, I consider that this ground is made out.

The circumstances of the offence are as follows. The victim, Kevin Nugara, was a friend of the respondent. On 28 October 2011 Mr Nugara was spending the evening at a pool hall with his girlfriend, Casey McHale. The respondent and his girlfriend were also there. During the course of the evening the respondent had apparently consumed five to seven beers and was, in his own words, ‘a bit drunk’. At some point during the night the respondent got into an argument with his girlfriend and Ms McHale, who were dancing together. Ms McHale complained to hotel security. According to the respondent’s police interview, security guards then escorted him outside where he met Mr Nugara, who was standing outside the pool hall, waiting for Ms McHale. The respondent approached Mr Nugara and, according to the police interview, discussed the earlier incident. He told Mr Nugara that his girlfriend ‘shouldn’t get involved in other people’s relationships’. The respondent claimed to the police that at that point he was unsure whether he was going to hit Mr Nugara or Mr Nugara was going to hit him. However, what happened was that the respondent punched Mr Nugara with his right arm, hitting him with a clenched fist to the head. Mr Nugara fell to the ground unconscious, striking his head on the concrete pavement. The respondent then ran from the scene to avoid apprehension, leaving Mr Nugara unconscious on the pavement. The assault was captured on CCTV.

Mr Nugara initially sustained a fractured skull and brain haemorrhaging. Following emergency surgery, he remained in an induced coma for two weeks. Mr Nugara underwent two further surgeries, one of them as a result of a serious infection. His injuries are very serious and ongoing. Their full extent is still unknown. They include a fractured neck and skull and severe brain injury causing a degree of paralysis to the right side of the body, deafness in the right ear, loss of taste and impairment of smell.

The respondent was arrested a few days later, on 2 November 2011. He admitted his guilt and pleaded guilty to RCSI at the earliest opportunity.

The respondent’ personal circumstances are as follows. He was 23 at the time of the offending and 24 at the time of sentence. He is an indigenous Australian. He had a deprived, dysfunctional and abusive childhood. His brother was murdered in 2005 when the respondent was 17. The respondent then started drinking and now has a history of alcohol abuse. He has mild to moderate cognitive deficits, probably due to head trauma. He is essentially illiterate. He has no relevant past convictions. The learned sentencing judge found that this offence was out of character and that the respondent has demonstrated genuine remorse. For the last four to five years the respondent has been in a relationship with a young indigenous woman, Ms Morgan. Ms Morgan is currently pregnant and is due to give birth in February next year. The respondent also has another child from a previous relationship.

In the second sentence the sentencing judge sentenced the respondent to a CCO for three years. In addition to mandatory conditions,[88] his Honour imposed the following additional conditions:
[88]Sentencing Act s 45.

1.200 hours of unpaid community work.
2.Supervision by a Community Corrections Officer.
3.Assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
4.Assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for alcohol or drug abuse or dependency as directed by the Regional Manager.
5.Mental health assessment and treatment including (but not limited to) mental health, psychological, neuro-pathological and psychiatric, in a hospital or residential facility as directed by the Regional Manager.
6.Programs or courses aimed at addressing factoring relating to the offending as directed by the Regional Manager.

The Director consistently asked for a sentence of immediate imprisonment during both of the sentencing hearings. The Director now appeals the sentence on the grounds that it was manifestly inadequate. In sum, the Director contends that the sentence imposed fails to provide an appropriate level of punishment given the nature of the offender’s actions, their results, and the nature of the offence. He also contends that the sentencing judge gave too much weight to mitigating factors.

The respondent relies on the following matters:

1.When he hit the victim, he did not foresee the likelihood of the extent of the injuries that were actually sustained by the victim.
2.He pleaded guilty at the first reasonable opportunity and showed genuine remorse.
3.He had no prior convictions for violent offences.
4.The offence was out of character.
5.He had a deprived and dysfunctional upbringing, has borderline ranges of general intellectual functioning and may have an acquired brain injury.
6.He was a relatively young offender.
7.He would find any custodial sentence very difficult; a custodial sentence is likely to impact him adversely.
8.He has demonstrated insight into the adverse effects of his drug and alcohol abuse and, at the time of the plea, had been sober for the two months.
9.A non-custodial sentence would maximise his chances of rehabilitation.
10.His intoxication at the time of the offence was a mitigating factor in light of his personal circumstances and background.
11.He had served 15 days of pre-sentence detention.

I accept matters 2–10. With respect to foreseeability, the respondent emphasised the following observations of the judge:

Hence there is no doubt, and there was no gainsaying by your counsel, Mr Edwards, that we are dealing here with a very serious injury that you have caused. Although I am sure there was no formal thought process by you at the time of causing an injury such as this, clearly by your plea a potential consequence of punching someone forcefully is that landing on the ground, in the matter which apparently occurred here, further injury may be caused.

In my view, the observations of his Honour should not be taken as expressing the view that the respondent did not foresee the consequences of his conduct. Rather, as the second half of his Honour’s remark makes clear, by pleading guilty to RCSI the respondent accepts that he foresaw the obvious — that punching someone forcefully could lead not just to the injury immediately caused by the punch but to further injuries if the victim hit the ground. While the judge did not clarify the scope of these potential further injuries, it is obvious that they would include serious brain and spinal injuries.

As for pre-sentence detention, 15 days of detention is much too short a period, in the circumstance of an offence as serious as this, to be a significant matter.

Next, the respondent submits that making a CCO is ‘not a mere exercise in leniency’. A CCO is clearly not a substitute for imprisonment in cases where imprisonment is necessary to achieve the statutory purposes of sentencing. This is clear from ss 5(4), 5(4B) and 5(5), which, in combination, stipulate that a court must not impose a sentence that involves the confinement of the offender if it considers that the sentencing purposes can be achieved with a CCO. This accords with Parliament’s stated intention explained in the second reading speech for the Sentencing Amendment (Community Correction Reform) Act 2011:

The government recognises that jailing an offender is the most serious punishment available. There must be a flexible and practical approach to community-based sentencing that can be tailored to suit the very wide range of offending which, while serious, does not warrant a sentence of imprisonment.[89]

[89]Victoria, Parliamentary Debates, Legislative Assembly, 15 September 2011, 3292 (The Attorney-General, the Hon. Robert Clark, MP) (emphasis added).

A CCO is a substantially less severe form of punishment than a suspended sentence. This is clear from s 44 of the Sentencing Act which provides that a CCO can be combined with a sentence of imprisonment only if the sentence is three months or less. What makes a CCO less severe than a suspended sentence is the difference in the consequences of breach. As with a suspended sentence, an offender who breaches a CCO commits a new separate offence carrying a maximum penalty of three months’ imprisonment.[90] However, if a suspended sentence is breached, the court is also required to activate the sentence held in suspension unless there are exceptional circumstances.[91] In contrast, with a CCO, the court has a discretion to keep the CCO on foot, vary it, cancel it and resentence the offender or even cancel the CCO and make no further order with respect to the offence.[92] It follows that, unlike a suspended sentence, a CCO does not carry with it a powerful threat of immediate imprisonment for a term known in advance. Nonetheless, the individual is aware that upon breach the sentencing discretion is fully re-opened. In a matter of serious violence the individual faces a very real prospect of a stern custodial sentence.
[90]Sentencing Act 1991 ss 83AB(1) and 83AD(1).
[91]Sentencing Act 1991 s 83AR(2)
[92]Sentencing Act 1991 s 83AS.

[141]Ibid 602.

Some remarks in Bhardwaj undoubtedly support the approach taken in Brattoli. Gaudron and Gummow JJ (with whom McHugh J relevantly agreed) cited with approval the decision of the Canadian Supreme Court in Chandler v Alberta Association of Architects,[142] and quoted the following statement of McLachlin J (as her Honour then was) in an earlier Canadian case (which was itself endorsed in Chandler):

As a matter of logic, and on the authorities… a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision[143]

[142][1989] 2 SCR 848 (‘Chandler’).

[143]Re Trizec Equities Ltd and Area Assessor Burnaby-New Westminster (1983) 147 DLR (3d) 637, 643.

It should be noted, however, that the views expressed by Gaudron, Gummow and McHugh JJ in Bhardwaj do not constitute a majority opinion. In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care,[144] Gray and Downes JJ explained that only three judges in Bhardwaj (out of seven who sat) relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect.[145] Their Honours held that the issue in Bhardwaj was one of statutory interpretation and that the legal consequences of a decision affected by jurisdictional error are to be determined by reference to the legislation creating the decision-making power.[146] In a joint judgment, they observed that:

… the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not.[147]

[144](2003) 145 FCR 1 (‘Jadwan’).

[145]Ibid 15.

[146]Ibid 16.

[147]Ibid 15.

After citing Plaintiff S157/2002 v Commonwealth,[148] Gray and Downes JJ continued:

In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.[149]

[148](2003) 211 CLR 476.

[149](2003) 145 FCR 1, 16.

The interpretation of Bhardwaj adopted in Jadwan has since been regularly approved in the Federal Court.[150]
[150]Hicks v Nixon (2004) 138 FCR 32, 40 (RD Nicholson J); Ma v Minister for Immigration and Citizenship [2007] FCAFC 69, [27] (Lander J); Minister for Immigration and Citizenshipv Maman (2012) 200 FCR 30, 44 (Flick and Foster JJ)

The effect of Bhardwaj was recently considered in detail by the Full Court of the Tasmanian Supreme Court in Purton v Jackson.[151] At issue in that case were the powers of the Resource Management and Planning Appeal Tribunal, and particularly its power to reconsider a decision of its own which was affected by jurisdictional error.
[151][2012] TASFC 2.

At first instance, Wood J referred specifically to the remarks of Gleeson CJ in Bhardwaj relating to the doctrine of functus officio, at least with regards to administrative tribunals. His Honour noted that the Chief Justice had observed:

The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers… ?[152]

[152]Bhardwaj (2002) 209 CLR 597, 603 (emphasis added).

Therefore, Wood J concluded that:

The case of Bhardwaj … [does] not provide support for the respondents' proposition that the doctrine of functus officio has no application to decisions flawed by jurisdictional error. The judgment of Gleeson CJ provides guidance on the application of the doctrine to such decisions. The approach is to construe the statute to ascertain whether the power to reconsider exists.[153]

[153]Jackson v Purton [2012] TASSC 28, [78].

Wood J also noted that the effect of Bhardwaj was to ‘[sweep] aside’[154] the approach taken to the functus officio doctrine by Finkelstein J in Leung v Minister for Immigration and Multicultural Affairs.[155] There, his Honour had said that:

To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression ‘functus officio’ has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions.[156]

[154]Ibid [85].

[155](1997) 79 FCR 400 (‘Leung’).

[156]Ibid 414 (emphasis added). Leung raised the question whether the Minister was functus officio after granting a certificate of citizenship, though that grant had been obtained by fraud. Cf Transport Accident Commission v Dohnal (1996) 10 MVR 232, in which Balmford J held that an administrative tribunal was functus officio and unable to reopen its earlier decision, though that decision had been procured by fraud. See also SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 in which the High Court held that the Refugee Review Tribunal was ‘disabled’ from carrying out its statutory functions due to the fraudulent actions of the appellant’s migration agent, such that its jurisdiction ‘remained unexercised’ despite having purported to affirm the Minister’s decision not to grant protection visas; Enid Campbell, ‘Effect of Administrative Decisions Procured by Fraud or Misrepresentation’ (1998) 5 Australian Journal of Administrative Law 240.

In the Full Court, Blow J, with whom Crawford CJ and Evans J agreed, dismissed the appeal from Wood J’s judgment. The Full Court endorsed the approach taken by Gleeson CJ (with the apparent approval, at least in principle, of Kirby J)[157] that the question whether an administrative tribunal is functus officio following its delivery of a decision affected by jurisdictional error depends upon the construction of the statute conferring the decision-making power. The Full Court similarly saw nothing in Bhardwaj that supported ‘the proposition that a decision which involves jurisdictional error must always be regarded as a nullity, regardless of the provisions of the relevant legislation’.[158]

[157]Bhardwaj (2002) 209 CLR 597, 634-5. The judgment of Hayne J may also be read as generally supportive of the approach taken by Gleeson CJ and Kirby J, whereby the consequences of jurisdictional error, in the exercise of any decision-making power, are said to depend upon the construction of the Act that confers that power: at 644.

[158][2012] TASFC 2, [20] (Blow J).

It is therefore strongly arguable that, at least in respect of administrative tribunals, the application of the doctrine of functus officio following jurisdictionally-flawed decisions depends upon a process of legislative construction.[159] This is itself consistent with the approach taken by Gleeson CJ and Kirby J in Bhardwaj.
[159]See also Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’).

This appeal, however, concerns the application of the doctrine not in relation to inferior tribunals, but rather to inferior courts of record.

In our respectful opinion, this Court should follow the approach expressly endorsed by Gleeson CJ and Kirby J in Bhardwaj in preference to the views of Gaudron, Gummow and McHugh JJ. That is because the approach taken by Gleeson CJ and Kirby J is entirely in line with what the High Court had earlier said in Project Blue Sky.Moreover, this reasoning should be applied not just in relation to tribunals, but also with respect to, at least, inferior courts.[160]
[160]As the Federal Court is a superior court of record, its orders remain effective unless and until set aside. It is, however, subject to the supervisory jurisdiction of the High Court under s 75(v) of the Constitution: see generally Re Macks; Ex parte Saint (2000) 204 CLR 158. It should be noted that Gaudron J expressly stated that ‘an order of the Federal Court made without jurisdiction is not a nullity… [and] is final and binding unless and until set aside on appeal or pursuant to s 75(v) of the Constitution’: at 187.

It is true that there are several High Court authorities (all of which predate Project Blue Sky, and Bhardwaj) that appear to support the proposition that an order of an inferior court made in excess of jurisdiction can only ever be a nullity, with the result that the court might not be functus officio in the matter.[161]
[161]For reasons that will become apparent, the references to void and voidable that appear in some of the older authorities must, today, be read with caution: Swansson (2007) 69 NSWLR 406, 415 (Spigelman CJ).

For example, in Cameron v Cole,[162] Rich J noted that the decisions of superior courts are ‘at the worst voidable’, and are valid ‘unless and until set aside’.[163]

His Honour distinguished between the status of decisions of such courts and that of decisions of inferior courts. He said:

The language of Lord Greene MR, in Craig v Kanssen, where he says that ‘a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside,’ is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is ‘between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity’ fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court (In re the Affairs of Hart); but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion. Since the case before the Master of the Rolls was one of the former type, although no exception can be taken to his Lordship's actual conclusion, his criterion was, with all deference, somewhat inaptly expressed. If the decision is void (as it may be in the case of an inferior court), the court may proceed to a real trial without any formal setting aside of the void decision (R. v. Marsham; Ex parte Pethick Lawrence; Bannister v Clarke; In re the Affairs of Hart).

[162](1944) 68 CLR 571.

[163]Ibid 590-1 (citations omitted).

Of course, nothing in the passage set out above detracts from the obligation to have regard to the terms of the decision-making power and the decision-maker’s powers after the decision has been made. So much is evident from Rich J’s statement that a decision of an inferior court may be void, and from his Honour’s subsequent analysis of the Bankruptcy Act to determine whether the orthodox position was altered by the legislature.

As Burchett J explained in Re John Anasis; ex Parte Total Australia Limited:[164]

Rich J proceeded to discuss, at pages 590 and 591, the distinction between a purported trial affected by a fundamental irregularity in the case of a superior court, and the effect upon such a trial in the case of an inferior court. In the first case the decision of the court may be voidable, being valid unless and until it is set aside, whereas in the latter case it may be void. He found nothing in the Bankruptcy Act 1924 (Cth) which indicated an intention on the part of the legislature to interfere with this common law position. He held the provisions dealing with rescission and annulment were concerned, not with the inherent jurisdiction to set aside irregular trials, but with exempting courts exercising jurisdiction in bankruptcy from the rule that where there has been a real trial, leading to a valid decision, a court has normally no power subsequently to recall its decision.[165]

[164](1985) 11 FCR 127.

[165]Ibid 131.

While it may be correct, however, as a general rule, to say that inferior court orders made without jurisdiction are void, and not voidable,[166] it does not necessarily follow that the doctrine of functus officio does not apply and that such a court can, at any time, recall its orders and rehear the matter. As the preceding analysis of Cameron v Cole demonstrates, context, including the nature of the court and the decision made, is of paramount importance in determining the scope of any power to recall a decision.
[166]See, eg, Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J).

In Pelechowski v Registrar of the Court of Appeal,[167] the appellant had been the subject of an order not to deal with certain land following a District Court judgment against him with respect to amounts owing under a loan agreement. This was described as an ‘asset preservation order’ (typically known as a Mareva injunction). The appellant then sought and obtained credit from another lender, which proceeded to lodge a caveat in respect of a mortgage it had registered over the land.
[167](1999) 198 CLR 435 (‘Pelechowski’).

A contempt proceeding was then brought against the appellant. This was heard by the New South Wales Court of Appeal. The appellant was found guilty and sentenced to a term of imprisonment. On appeal to the High Court, it was contended that the District Court had no jurisdiction to grant the injunctive remedy.

The High Court accepted that argument, holding that the District Court’s limited equitable jurisdiction (conferred by statute)[168] did not extend to making the order that it did against the appellant.
[168]District Court Act 1973 (NSW).

Gaudron, Gummow and Callinan JJ cited with approval McHugh J’s statement in Attorney-General (NSW) v Mayas Pty Ltd[169] that:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.[170]

[169](1988) 14 NSWLR 342.

[170]Ibid 357.

Their Honours applied that principle to find that the orders adjudging the appellant guilty of contempt should not have been made.[171]
[171]Pelechowski (1999) 198 CLR 435, 453.

The High Court’s judgment in Pelechowski does not mean that any jurisdictional error of an inferior court will render that court’s decision void ab initio. The reasons of the majority were based on New South Wales authority to the effect that an order of an inferior court, made without power, cannot be used as the basis for a finding that a person in breach of that order is guilty of contempt. The case does not stand for the far wider proposition that an order of an inferior court, made beyond power, can never have any effect in law, regardless of the statutory context in which that decision was made.

As the authors of Judicial Review of Administrative Action point out, ‘nullity’ is a ‘word used to describe an outcome’. It connotes ‘a bundle of legal consequences’.[172] The authors also posit that while ‘jurisdictional error usually produces nullity … it takes a court to say so, and that court’s own jurisdiction must have been properly invoked by the right person on the right grounds seeking the right remedy and within any statutorily valid deadline.’[173] If it takes a court to declare a nullity, it is difficult to see precisely how an inferior court would be in a position to rehear a matter said to involve jurisdictional error pending any such declaration being made (absent statutory power to do so).

[172]Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 4^th ed, 2009) 720.

[173]Ibid 717.

It is well established that the ‘bundle of legal consequences’ flowing from a decision which is a ‘nullity’ does not preclude the bringing of an appeal against that decision. The availability of a criminal appeal will depend upon the construction of the relevant statutes.[174]
[174]See, eg, Criminal Procedure Act 2009.

In Swansson v The Queen,[175] Spigelman CJ cited the following remarks of Lord Atkinson in Cranev Director of Public Prosecutions[176] regarding the effect of convictions after trials which are ‘nullities’:

The fact that the trial of Crane was rightly held to be a mis-trial and a nullity does not disentitle him, under s 3 of the Criminal Appeal Act, 1907, to appeal against it. He is still a person convicted on an indictment within the meaning of that section, since those words cannot mean validly convicted, otherwise the statute would be futile and unworkable.[177]

[175](2007) 69 NSWLR 406, 413 (‘Swansson’).

[176][1921] 2 AC 299 (‘Crane’).

[177]Ibid 323.

The reasoning in Crane was followed by the High Court in Russell v Bates[178] where the plurality said:

The Magistrate had jurisdiction over the charges laid against the respondents and, even if what took place before him was no trial at all or a mistrial, nevertheless, to adapt the words of Lord Sumner in Crane v Public Prosecutor (1921) 2 AC, at p 331, the respondents were convicted and to all appearances convicted on the charges laid against them.[179]

[178](1927) 40 CLR 209.

[179]Ibid 213-4 (Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ).

The analysis in Crane again confirms what the majority in Bhardwaj seem to have held, namely that it is necessary in every case to examine the statutory context surrounding a decision made in excess of jurisdiction to determine its legal effects.

The statutory context – has functus officio been abrogated in relation to jurisdictional error committed by the County Court?

Turning then to that statutory context, it is obvious that the County Court has a very wide jurisdiction in relation to indictable criminal matters. Section 36A of the County Court Act1958 relevantly provides:

36A Criminal jurisdiction of County Court
(1)The court shall have jurisdiction to inquire into hear and determine and adjudge all indictable offences (whether committed before or after the commencement of the County Court (Jurisdiction) Act 1968) save and except the offences following (that is to say)—

(a)treason and misprision of treason;
(b)the offences referred to in sections 3, 10, 11 and 13 of the Crimes Act 1958 and the offence referred to in section 130 of that Act of burglariously breaking and entering a dwelling house and assaulting with intent to murder a person therein;
(c)attempts to murder;
(e)unlawful combinations and conspiracies to commit any offence which when committed by one person is triable only in the Supreme Court;
(f)offences which by any Act cannot be prosecuted or tried in the County Court.

(2)Subject to subsection (1) and unless otherwise expressly provided the County Court shall have jurisdiction and powers with respect to indictable offences and the trial thereof as fully and amply to all intents and purposes as the Supreme Court of Victoria in like matters and the general principles of practice and procedure observed for the time being in the Supreme Court of Victoria with respect to the trial or determination of indictable offences shall be adopted and applied in the County Court.

The initial question is whether the breadth of s 36A(2) has the result that the County Court is, in its jurisdiction with respect to indictable offences, to be regarded as though it were a superior court of record. If so, then its decisions with respect to indictable offences (which would appear to include sentencing decisions) cannot be described as void, at least unless and until they are set aside through the appeal process.

Section 36A appears to have been first considered by the Full Court in R v Judge Martin; Ex parte A-G.[180] There, the issue was whether, after the enactment of that section in 1968,[181] prerogative relief was available to correct a decision by the County Court to remand an accused for trial following a jury finding that he was unfit to plead.
[180][1973] VR 339.
[181]Inserted by County Court (Jurisdiction) Act 1968.

It was submitted that, as a result of the enactment of s 36A(2), the County Court had become, in its criminal jurisdiction, a ‘superior court’. It was further submitted that if that be so, a prerogative writ would not lie to the County Court. Indeed, it was even submitted that there would be no remedy available because the procedure by way of appeal, as provided by the Crimes Act 1958, was not available.

Not surprisingly, the Full Court rejected each of these submissions. It was said that the precise import of the language of s 36A was ‘difficult to define’,[182] but, on any view, the County Court did not have co-ordinate jurisdiction with the Supreme Court in relation to indictable offences. Being a court of limited criminal jurisdiction, it was prima facie subject to control by means of prerogative writ.[183] Accordingly, the Court made an order for certiorari upon holding that the trial judge was under a statutory duty to detain the accused until the Governor’s pleasure should be known.
[182][1973] VR 339, 360 (Little J).
[183]It might be noted in passing that the phrase conferring jurisdiction – ‘as fully and amply and to all intents and purposes as the Supreme Court of Victoria in like matters’ – is somewhat similar to the language used in the establishment of the Supreme Courts of the States: see generally David Jones Pty Ltd v Leventhal (1927) 40 CLR 357.

More recently, the Full Court raised, without deciding, the question whether the effect of s 36A(2) is to, in some way, limit the availability of certiorari against the County Court in relation to trials of indictable offences.[184] In light of Kirk, that suggestion may now be doubted. For present purposes, it is sufficient to say that there is nothing in any of the authorities that casts doubt upon the availability of certiorari where the County Court has exceeded its jurisdiction, or prohibition to ensure that it does not.[185] Nor is there anything to suggest that the fact of the court being functus officio will prevent its decision being amenable to certiorari.[186]
[184]Rozenes v Beljajev [1995] 1 VR 553, 572 (Brooking, McDonald and Hansen JJ).
[185]Of course, that says nothing about whether the County Court itself can ever be functus officio in relation to a matter that involves jurisdictional error.
[186]Subject to the discretion not to grant the remedy, particularly in circumstances where a right of appeal is available: see generally R v Cook; Ex parte Twigg (1980) 147 CLR 15, 29 (Gibbs J); Re McBain (2002) 209 CLR 372, 413 (McHugh J) citing Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482, 516 (Isaacs and Rich JJ).

Regardless of the precise scope of s 36A(2), it is clear that it confers upon the County Court somewhat greater jurisdiction than that ordinarily bestowed upon inferior courts of record. It forms a part of the statutory context in which the question whether there is a power to reconsider a decision made without power must be determined.

The existence of s 104A of the Sentencing Act 1991 and s 412 of the Criminal Procedure Act 2009 also points to the conclusion that the legislature did not intend that County Court orders imposing sentence be ‘void’ such that they can be recalled by the Court itself at any time.

Section 104A relevantly provides as follows:

(1)The judge or magistrate who gave judgment or passed sentence, or purported to give judgment or pass sentence, on the trial or hearing of an offence may, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the judgment or sentence or purported judgment or sentence if satisfied—
(a)that it contains—
(i)a clerical mistake; or
(ii)an error arising from an accidental slip or omission; or
(iii)a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or
(iv)a defect of form; or

(b)that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.

To seemingly broader effect (it is, at least, not so temporally limited) is s 412 of the Criminal Procedure Act 2009. That section is in the following terms:

For the purpose of correcting any defect or error in substance or in form, a
court may amend any summons, warrant, plea, judgment or order.

It might be said that the combined effect of these provisions is to enable what the legislature perceived could not otherwise be done, given that a sentencing court, once it has passed sentence and the sentence has been entered into the record, is normally viewed as functus officio. If, however, a sentencing court could indeed recall an invalid sentence at any time, these provisions would be largely otiose.

In R v Denning,[187] the New South Wales Court of Criminal Appeal considered s 24 of the Criminal Procedure Act 1986 (NSW) which, at that time, stated that if a Court imposed a penalty that was contrary to law, that Court could reopen proceedings and impose a sentence according to law. Importantly, and unlike s 104A, no time limit was specified.
[187](Unreported, New South Wales Court of Criminal Appeal, Carruthers, Smart and Grove JJ, 15 May 1992) (‘Denning’).

Grove J[188] commented that:

The provision, read as a whole, authorizes reopening of proceedings after imposition of a penalty that is contrary to law or failure to impose one which is required to be imposed by law. I would construe the provision and the word ‘may’ in particular as empowering a reopening which could not otherwise be done. Absent this power, a Court would in most circumstances be functus officio and appellate or perhaps prerogative remedy would need to be sought to cure any defect.[189]

[188]Carruthers and Smart JJ each agreed with Grove J in the result, but did not specifically comment upon the purpose of s 24 of the Criminal Procedure Act 1986 (NSW), or as to what would be the position absent such a statutory provision.

[189]Ibid 15 (emphasis added).

In Erceg v The District Court of New South Wales,[190] that statement was expressly approved by McColl JA (with whom Palmer J agreed).

[190](2003) 143 A Crim R 455, 479.

Despite the differences between the Victorian legislation and its New South Wales counterpart considered in Denning, there is obvious force in these comments. While there may be significant limits to s 412,[191] the section is clearly based on a legislative assumption that a court exercising criminal jurisdiction (at least, the County Court) cannot reopen matters and make new orders where, given that the first orders have entered into the record, the court is functus officio.
[191]See generally Dickson [2011] VSCA 222.

On a proper analysis of the statutory provisions relating to the effect of orders of the County Court dealing with indictable matters, the sentencing judge had no power to recall his first sentence in this case. His Honour was functus officio at the time that sentence passed into the record of the court. If Brattoli ever stood as good law, it can no longer be reconciled with later decisions of the High Court, and, for that reason, should not now be followed.

Consequences if initial County Court sentence ‘void’ and able to be recalled

In DPP v TY, Maxwell P, Ashley and Neave JJA said that:

It is necessary that a court order imposing sentence be – and be treated as – valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal). ... The status of court orders - at least those of superior courts - is quite different in this respect from that of administrative decisions[192]

[192](2009) 24 VR 705, 712.

While their Honours did distinguish between inferior and superior courts (and so this statement of principle cannot be taken to have determined the effect of County Court orders made without jurisdiction), the case adverts to the strange consequences that would arise if a sentence infected by judicial error were to have no effect in law at all.

Those consequences were specifically anticipated by Simpson J in Swansson, where her Honour said:

In practical terms, of course, a person convicted (and imprisoned) as a consequence of a criminal proceeding that is a nullity is not able (even though entitled to do so) to disregard the order. But it might be useful to consider what would ensue if that person escaped from imprisonment. On the authority of Attorney-General (NSW) v Mayas and United Telecasters Sydney, he/she could not be convicted of escaping lawful custody.[193]

[193](2007) 69 NSWLR 406, 432.

Any analysis requiring the result that a conviction for escaping lawful custody should be set aside on that basis would bring the law into disrepute.

It would be somewhat odd to think that a judge of an inferior court had far greater powers to correct an error that he or she has made in sentencing an offender than a judge of a superior court of record.

Conclusion

It is well established that intermediate appellate courts can hear appeals from ‘null’ convictions.[194] At least to some degree, therefore, it can confidently be said that sentences passed in excess of jurisdiction are not, for all purposes, to be regarded as being without legal effect.
[194]Crane [1921] 2 AC 299.

In the absence of legislation, such as the provisions of the County Court Act 1958, the Sentencing Act 1991 and the Criminal Procedure Act 2009 to which we have referred, it would be plausible to suggest that a sentence imposed without power should be viewed as a nullity and without legal effect.[195] Bhardwaj suggests, however, that labels such as ‘nullity’, or ‘void’, do not answer the true question as to the effects of a sentence imposed without power, which is one of statutory construction.[196]

[195]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J).

[196]It is particularly noteworthy that Hayne J, in Bhardwaj, referred to and specifically endorsed the views of Professor H W R Wade to this effect: Bhardwaj (2002) 209 CLR 597, 643 (Hayne J) citing H W R Wade, ‘Unlawful Administrative Action: Void or Voidable?’ (1967) 83 Law Quarterly Review 499, 507-15.

In Victoria, having regard to the provisions of s 36A(2) of the County Court Act 1958, and the other provisions previously mentioned, a judge of the County Court is functus officio with regard to a sentence entered into the record of the court, even though it is affected by jurisdictional error. That conclusion flows from the weight of recent authority, including, in particular, the tenor of several recent High Court decisions.[197] It also represents sound policy.
[197]Project Blue Sky (1998) 194 CLR 355; Bhardwaj (2002) 209 CLR 597.

It was submitted on behalf of the respondent that, irrespective of questions of policy, this Court is bound to follow Brattoli, unless satisfied that it is ‘plainly wrong’.

If that were indeed the position, we should say that we would be so satisfied. Not only is Brattoli difficult to reconcile with modern thinking about issues of public law, being based essentially upon an outmoded distinction[198] between those decisions that are ‘void’, and those that are merely ‘voidable’, it also represents poor policy. More importantly, Brattoli cannot properly be reconciled with the views of Gleeson CJ and Kirby J in Bhardwaj. Nor can it stand with the approval given by Hayne J in that case to the criticisms levelled at that distinction by Professor H W R Wade.
[198]H W R Wade, ‘Unlawful Administrative Action: Void or Voidable?’ (1967) 83 Law Quarterly Review 499, 507-15.

There is an important public interest in the finality of all proceedings. As part of that public interest, it is essential to have a method whereby it can be determined with certainty that an inferior court, or tribunal, has completed its task. That is so irrespective of whether it is possible to impugn the work done by that court or tribunal as involving an excess of jurisdiction.

Contrary to Brattoli, the interests of finality in criminal matters are best served if a sentence imposed by an inferior court cannot be recalled by that Court once its decision has passed into record.

Once a judge of any court, whether it be a superior court of record or, as in the case of the County Court, an inferior court of record, has passed sentence, and that sentence has been entered into the records of the court, then, subject to legislative provision to the contrary, that judge is functus officio. That is so irrespective of whether the sentence itself can be challenged on the basis that it was beyond power. If the sentence is made in excess of jurisdiction, it can be rectified. The proper process is either to institute the appeal process set out in the Criminal Procedure Act 2009 or, in the case of the County Court, to seek certiorari.

It follows that we consider the Director’s latest submissions on functus officio to be correct. In our opinion, the suspended sentence first imposed in this case was invalid. However, having passed into record, that sentence could not simply be set aside by the judge. In effect, he was functus officio from that point onwards.

It also follows that the second sentence imposed on 23 April 2012 was invalid. It was passed by a judge who was functus officio.

The judge sought to rely upon s 412 of the Criminal Procedure Act 2009 in recalling the first sentence. In our respectful opinion, the section cannot be used in that way. It should not be read as a ‘cure all’, enabling any error, of any kind, to be rectified at any time. It was not intended to, and does not, abrogate the doctrine of functus officio. One would need unmistakably clear language to bring about such a far-reaching, and remarkably radical, result.

If s 412 were to be read as broadly as the judge did, it would render s 104A entirely otiose. That would be a strange result, given that Parliament has chosen to retain s 104A notwithstanding the enactment of s 412.

Despite the proposed additional ground of appeal upon which the Director seeks to rely, there is currently no appeal on foot against the suspended sentence imposed on 28 March 2012. We would extend time to allow the Director to appeal against that sentence, which, though made without power, is extant. Given the definition of ‘sentence’ in s 3 of the Criminal Procedure Act 2009, both that sentence and the purported second sentence may be the subject of the Director’s appeal under s 287 of that Act.[199] We would allow the appeal and set aside that sentence and the purported second sentence imposed on 23 April 2012.
[199]Crane [1921] 2 AC 299, 323 (Lord Atkinson); Russell v Bates (1927) 40 CLR 209, 213-4 (Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ).

The respondent must be resentenced. It does not follow, as the Director contends, that he should now be required to serve an actual custodial term. In our opinion, the community correction order made by the very experienced sentencing judge, when he purported to resentence the respondent, was appropriate. We would make the same order.[200]
[200]A similar course was adopted by this Court in Kuoth v The Queen [2010] VSCA 103, [21] (Maxwell P) where, having allowed the appeal against sentence on the ground of specific error, the Court reimposed a community-based order for the same period and subject to the same conditions.

It must be remembered that the respondent has been complying with the terms of that order for some months. A community correction order is not, and should not be viewed as, a mere ‘slap on the wrist’. It is a significant punishment, and is capable of having substantial deterrent effect, both specific and general.

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[2012] VSCA 293

7 December 2012