Director of Public Prosecutions v Platt
[2019] VSC 51
•13 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 02305
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| LUCY PLATT | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 February 2019 |
DATE OF JUDGMENT: | 13 February 2019 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Platt |
MEDIUM NEUTRAL CITATION: | [2019] VSC 51 |
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CRIMINAL PROCEDURE – Jurisdiction of Magistrates’ Court to hear and determine summarily a charge for an indictable offence – Charge of attempting to obtain a financial advantage by deception, where the attempted financial advantage exceeded the amount of $100,000 specified in the Criminal Procedure Act 2009, Sch 2 – Whether Magistrates’ Court had jurisdiction to deal summarily with the attempt charge – Criminal Procedure Act 1989 (Vic), ss 28 and 29, Sch 2, items 4.10 and 4.28.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr CB Boyce SC and Mr PJ Doyle | John Cain, Solicitor for Public Prosecutions |
| For the First Defendant | Mr DD Gurvich QC and Mr AP Lewis | Stary Norton Halphen |
HER HONOUR:
On 18 December 2017, Dr Lucy Platt came before the Magistrates’ Court at Melbourne for a committal hearing. She was charged with the indictable offence of attempting to obtain a financial advantage by deception, by applying to a bank for a loan of $1,200,000 using falsified documents. Dr Platt intended to plead guilty to the charge, and sought to have the matter dealt with summarily in the Magistrates’ Court.
Although the prosecution was amenable to a summary hearing, Magistrate Reardon expressed doubt whether the Magistrates’ Court had jurisdiction to hear the charge, given the value of the attempted deception. He adjourned the hearing for legal argument on that issue. After further consideration, the prosecution formed the view that the Magistrates’ Court did not have jurisdiction.
On 7 February 2018, after hearing argument, his Honour determined that he had jurisdiction. Although the prosecution contended that the Magistrates’ Court did not have jurisdiction, it did not otherwise oppose the matter being dealt with summarily, and the Magistrate was satisfied that it was appropriate to do so. He heard Dr Platt’s plea on 23 April 2018, and imposed a fine of $25,000 without conviction.
In this proceeding, the Director of Public Prosecutions seeks judicial review remedies to set aside the Magistrate’s disposition of the charge, and to remit the charge to the Magistrates’ Court to be dealt with according to law. No issue is taken with the Magistrate’s conclusion that it was appropriate to determine the charge summarily. The issue is whether the Magistrates’ Court had jurisdiction at all.
For the reasons that follow I find that the Magistrates’ Court had jurisdiction to hear and determine the charge against Dr Platt. It follows that the proceeding must be dismissed.
Indictable offences that may be heard and determined summarily
The Magistrates’ Court has jurisdiction to hear and determine all indictable offences which may be heard and determined summarily.[1] Section 28 of the Criminal Procedure Act 2009 (Vic) (CP Act) provides:
[1]Magistrates’ Court Act 1989 (Vic), s 25(1)(b).
(1) A charge for any of the following indictable offences may be heard and determined summarily by the Magistrates' Court, if section 29 is satisfied—
(a) an offence referred to in Schedule 2;
(b) an indictable offence under an Act or subordinate instrument or an offence at common law if the offence is described by an Act or subordinate instrument as being—
(i) a level 5 offence or level 6 offence; or
(ii) punishable by level 5 or level 6 imprisonment or fine or both; or
(iii) punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 1200 penalty units or both—
unless the contrary intention appears in this or any other Act or in any subordinate instrument.
Note
A level 5 offence is punishable by 10 years imprisonment maximum and a level 6 offence is punishable by 5 years imprisonment maximum: section 109 of the Sentencing Act 1991.
(2) If an indictable offence is described as being punishable in more than one way or in one of 2 or more ways, all of those ways must be referred to in subsection (1) for subsection (1) to apply.
(3) If an indictable offence referred to in Schedule 2 is qualified by reference to a specified amount or value or a specified kind of property, that qualification is not affected by subsection (1)(b) or (2).
Schedule 2 of the CP Act is headed ‘Indictable offences that may be heard and determined summarily’. The offences listed include, relevantly:
4.10 Offences under section 82 of the Crimes Act 1958 (obtaining financial advantage by deception), if the amount or value of the financial advantage alleged to have been obtained does not in the judgment of the court exceed $100 000.
and
4.28 Offences under section 321M of the Crimes Act 1958 (attempt) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies.
The upper limit of $100,000 appears throughout Sch 2 in relation to a wide range of property offences. It also reflects the jurisdictional limit of the Magistrates’ Court in civil proceedings.[2]
[2]Magistrates’ Court Act, s 3, definition of ‘jurisdictional limit’ and s 100.
Section 28 of the CP Act replaced the former s 53 of the Magistrates’ Court Act 1989 (Vic). That section used to provide:
53. Indictable offences triable summarily
(1) If a defendant is charged before the Court with any offence referred to in Sch 4 or with any other indictable offence to which this sub-section applies, the Court may hear and determine the charge summarily if —
(a) the Court is of the opinion that the charge is appropriate to be determined summarily; and
(b) the defendant consents to a summary hearing.
(1A) In addition to the offences referred to in Sch 4, subs (1) applies to an indictable offence under an Act if the Act describes the offence as being level 5 or 6 or as being punishable by level 5 or 6 imprisonment or fine or both.
(1B) If an offence is described as being punishable in more than one way or in one of two or more ways, subs (1) does not apply to it if any one of those ways is not referred to in subs (1A).
(1C) Subsection (1) does not apply to an indictable offence by virtue of subs (1A) if that offence is referred to in Sch 4 but the reference to that offence in that Schedule is qualified by reference to a specified amount or value or a specified kind of property.
(2) Subsection (1) applies even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed.
The offence charged
The offence with which Dr Platt was charged was an offence under s 321M of the Crimes Act 1958 (Vic), of attempting to commit the indictable offence of obtaining a financial advantage by deception, under s 82 of the Crimes Act. It was alleged that Dr Platt had applied for a bank loan of $1,200,000 using falsified documents.
Obtaining a financial advantage by deception is an indictable offence under s 82 of the Crimes Act. A person who commits that offence is liable to level 5 imprisonment (10 years maximum).
Section 321M of the Crimes Act provides that a person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Section 321P provides for the penalty for an offence of attempt, which varies according to the maximum penalty for the substantive offence. A person who attempts to commit an offence punishable by level 5 imprisonment (10 years maximum) is liable to level 6 imprisonment (5 years maximum).[3]
[3]Crimes Act, s 321P(1)(a).
Did the Magistrate have jurisdiction to deal with the charge?
The Magistrate gave oral reasons for his determination that he had jurisdiction, which were transcribed for the purposes of this proceeding. After summarising the arguments put for the prosecution and Dr Platt, his Honour concluded:
I have to say I’ve waxed and waned a bit about this case. I’ve read both sets of submissions. The authority handed up,[4] I must say, didn’t help me much.
It seemed to be a clear cut matter under the old Magistrates’ Court Act. Upon reflection in this particular case in which the Criminal Procedure Act applies, I think I do accept what Mr Richter says in this particular case. I think the argument can be made for offences on the attempt and that the limit is no longer applicable for offences on attempt. It’s really then a matter for determination under s 29. Then if it’s submitted that the claim is rather, to use the expression, rather outlandish, the application, well, the courts can then make their own decisions about it but it doesn’t prevent the application being made in relation to the offence of attempt.
[4]Director of Public Prosecutions (Vic) v Verigos (2004) 145 A Crim R 82.
The prosecution submitted that the Magistrates’ Court did not have jurisdiction, because the offence charged is not an offence to which s 28(1) of the CP Act applies. Its analysis went as follows:
(a) The offence charged was an attempt to commit the indictable offence of obtaining a financial advantage by deception.
(b) Due to the value of the advantage that Dr Platt attempted to obtain — $1,200,000 — the offence is not an offence referred to in Sch 2. Item 4.28 of Sch 2 covers only an attempt to commit an indictable offence to which s 28(1) applies. Although the indictable offence of obtaining a financial advantage by deception is referred to in item 4.10 of Sch 2, it is qualified by a maximum value of $100,000. The offence is therefore not covered by s 28(1)(a).
(c) Paragraphs (a) and (b) of s 28(1) of the CP Act have an overlapping operation. A number of the offences specified in Sch 2 are also subject to the penalties specified in s 28(1)(b). The overlap is addressed by s 28(3), which has the effect that where an indictable offence listed in Sch 2 is qualified by reference to an amount or value, that qualification prevails over the more general terms of s 28(1)(b).
(d) Hence, although the offence charged was an indictable offence punishable by level 6 imprisonment, the qualification by value in item 4.10 prevails and s 28(1)(b) does not apply.
It was implicit in the prosecution’s analysis that the qualification by value in item 4.10 was somehow picked up and applied by item 4.28. As will become clear, I do not agree that item 4.28 operates in this way.
The prosecution submitted that the issue that is raised in this proceeding is ‘Was the offence being attempted an offence to which s 28(1) applied?’. I agree with the submission of Dr Platt, that to pose the question that way conflates the attempt offence with the substantive offence. Dr Platt was, after all, charged with attempt and not with obtaining a financial advantage by deception. The question to be resolved is ‘Was the attempt an offence to which s 28(1) applied?’.
Dr Platt submitted that the answer to this question is ‘yes’, and put forward two avenues by which that answer might be reached.
The first avenue involves the following steps:
(a) Item 4.28 in Sch 2 applies to attempts committed in relation to an indictable offence to which s 28(1) applies.
(b) The words ‘indictable offence to which s 28(1) applies’ in item 4.28 refer to the relevant substantive offence — in this case, obtaining a financial advantage by deception.
(c) Those words do not refer to the substantive offence that was attempted by the accused. Rather, they refer to the substantive offence in general, without regard to amount or value.
(d) The offence of obtaining a financial advantage by deception, under s 82 of the Crimes Act, is punishable by level 5 imprisonment and so is an indictable offence referred to in s 28(1)(b).
(e) Hence, the offence of attempting to obtain a financial advantage by deception is an offence to which s 28(1) applies, regardless of the value of the financial advantage involved.
The difficulty with this approach is that it disregards s 28(3), and the primacy that it gives to qualifications by amount or value to the offences referred to in Sch 2. The effect of s 28(3) is that where, as here, the offence that was attempted involved more than $100,000, it is not ‘an indictable offence to which s 28(1) applies’.
The first avenue is therefore closed to Dr Platt. The attempt with which she was charged was not an offence referred to in item 4.28 of Sch 2, and so was not covered by s 28(1)(a).
That conclusion is, however, the first step along the second avenue identified by Dr Platt. She submitted that, even if the attempt is not an offence referred to in Sch 2, it is in any event an offence punishable by level 6 imprisonment, and so is an offence to which s 28(1)(b) applies. Item 4.28 is not qualified by amount or value, and so s 28(3) does not displace the application of s 28(1)(b) to the offence with which she was charged.
In response, the prosecution submitted that the legislature had dealt specifically with the offence of attempt in item 4.28, in clear terms, and so the general provision in s 28(1)(b) must give way to the specific provision in item 4.28.[5] Otherwise, s 28(1)(b) would provide a second entry point, by the back door, to the Magistrates’ Court’s summary jurisdiction.
[5]Relying on Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1980) 29 ALR 333, 347 (Deane J).
I do not accept that the general words of s 28(1)(b) can be read down in this way. As the prosecution submitted, paragraphs (a) and (b) of s 28(1) have an overlapping operation. That overlap is specifically dealt with by s 28(3), but only in limited respects. Section 28(3) only ensures that the qualifications by amount or value or kind of property specified in the offences referred to in Sch 2 prevail where there is an overlap with s 28(1)(b). Otherwise, s 28(3) does not limit the generality of s 28(1)(b).
The scope of item 4.28 is not qualified by reference to an amount or value; it merely includes within the offences referred to in Sch 2 an attempt to commit an indictable offence to which s 28(1) applies. An attempt to commit an indictable offence to which s 28(1) does not apply may still fall within s 28(1)(b) if the attempt is a level 5 offence or a level 6 offence. In that case, s 28(3) does not have the effect of displacing the application of s 28(1)(b).
This construction does not set at nought the monetary limits specified in Sch 2, as the prosecution submitted it would. As discussed, s 28(3) has the effect that those monetary limits prevail, where the offence would otherwise come within s 28(1)(b).[6] However, they do not extend to the inchoate offence of attempt, in respect of which no monetary limit is specified in Sch 2.
[6]Dr Platt initially submitted that s 28(3) did not have that effect. This position was disavowed at the hearing.
Although I do not consider that there is any ambiguity to be resolved, I am fortified in my reading of s 28 and item 4.28 by three additional matters.
First, this reading furthers the objectives of the CP Act. In his second reading speech, the Attorney-General identified the objectives of the legislation, which included a criminal justice system that is both efficient and flexible:[7]
Criminal procedure laws must support and promote an efficient criminal justice system. Our courts deal with many cases each year. Case management practices need to create a structure that provides sufficient certainty and consistency to create an efficient system while providing sufficient flexibility to adapt to the individual needs of each case.
It achieves both efficiency and flexibility to read s 28 with item 4.28 of Sch 2 so that the Magistrates’ Court can deal summarily with an indictable attempt charge in an appropriate case. This reading also ‘minimises the impact of necessary procedures on victims, witnesses, jurors and the accused’,[8] another objective of the CP Act articulated in the second reading speech.
[7]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4982 (Mr Hulls, Attorney-General).
[8]Ibid.
Second, s 28 is subject to s 29 of the CP Act, which gives Magistrates the discretion whether to exercise the jurisdiction that s 28 confers. This discretion is to be exercised having regard to the matters set out in s 29(2), which include the seriousness of the offence and the adequacy of the sentences available to the Magistrates’ Court. There will undoubtedly be cases where it is not appropriate for a charge of attempting to commit an indictable offence to be dealt with summarily, in which case the Magistrate can decline to do so. In other cases — such as this one — it will be uncontroversial that the charge should be dealt with by the Magistrates’ Court.
Third, the absence of any monetary limit in item 4.28 in relation to attempt[9] is consistent with the position before the commencement of the CP Act, under s 53 and Sch 4 of the Magistrates’ Court Act.[10] The offence of attempt was referred to in Sch 4 in terms that did not include any qualification by reference to a specified amount or value, and so did not attract the operation of the former s 53(1A) of the Magistrates’ Court Act. The Magistrates’ Court’s jurisdiction to deal with indictable offences is not expanded by reading s 28 and item 4.28 in the way the Magistrate did in this case.
[9]See also CP Act, Sch 2, item 4.27 (incitement), item 4.29 (accessories), and item 4.30 (concealment for benefit).
[10]Magistrates’ Court Act as at 31 December 2009, Sch 4, item 58. See also items 57, 59 and 60, in relation to incitement, accessories and concealment for benefit.
The Magistrate was correct in his conclusion that he had jurisdiction to hear and determine the charge against Dr Platt. The proceeding must be dismissed. I will hear the parties on the question of costs.
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