Director of Public Prosecutions v Whittle
[2023] ACTSC 64
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Whittle |
Citation: | [2023] ACTSC 64 |
Hearing Date: | 6 March 2023 |
DecisionDate: | 30 March 2023 |
Before: | Mossop J |
Decision: | See [59] |
Catchwords: | CRIMINAL LAW – REFERENCE APPEAL – Statutory interpretation – whether offence of possession or use of prohibited firearms under s 42(1)(a)(ii) of the Firearms Act 1996 (ACT) is an offence that “relates to … other property” within the meaning of s 375(1)(b)(i) of the Crimes Act 1900 (ACT) – consideration of summary jurisdiction of the Magistrates Court – whether offence requires an interference with proprietary rights – offence arises from possession of property of a particular type – offence within the scope of the expression “relates to … other property” |
Legislation Cited: | Crimes Act 1900 (ACT), ss 64A, 65, 72C, 72D, 114B, 144C, 375, Pt 6 Crimes Act 1900 (NSW), ss 100, 102, 476, 477, 478, Pt IV Supreme Court Act 1933 (ACT), s 37S |
Cases Cited: | Anic, Stylianou and Suleyman v The Queen (1993) 61 SASR 223 Fares v Longmore (1998) 148 FLR 255 Slocombe v Whittle [2022] ACTMC 3 |
Texts Cited: | Explanatory Statement, Justice and Community Safety Legislation Amendment Bill 2004 (No 2) |
Parties: | ACT Director of Public Prosecutions ( Applicant) Joshua Whittle (Interested party) |
Representation: | Counsel S Drumgold SC ( Applicant) K Lee (Interested Party) |
| Solicitors ACT Director Public Prosecutions ( Applicant) Kamy Saeedi Law (Interested Party) | |
File Number: | SCA 35 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 18 February 2022 Case Title: Slocombe v Whittle Citation: [2022] ACTMC 3 |
MOSSOP J:
Introduction
This is a reference appeal on a question of law brought following a decision of the Magistrates Court. The decision related to the jurisdiction of the Magistrates Court to hear a charge that Joshua Whittle possessed three prohibited firearms contrary to s 42(1)(a)(ii) of the Firearms Act 1996 (ACT). The maximum penalty for that offence is 14 years’ imprisonment. Because it was an indictable offence the jurisdiction of the magistrate was dependent upon whether s 375 of the Crimes Act 1900 (ACT) permitted the charge to be dealt with summarily with the consent of the accused. That, in turn, depended on whether or not the offence was one which “relates to money or other property”. The reason that the jurisdiction turned on that issue was because s 375 applied to an offence that “relates to money or other property” if it was punishable by a term of imprisonment not exceeding 14 years but to any other offence only if the maximum penalty was 10 years’ imprisonment: s 375(1)(b). Thus, if the offence was one which “relates to money or other property” its maximum penalty was (just) within the statutory provision which allowed it to be dealt with summarily. If it was not an offence that “relates to money or other property” then, because the maximum penalty exceeded 10 years, it could not be dealt with by the Magistrates Court.
For the reasons that follow, the offence created by s 42(1)(a)(ii) is an offence that “relates to money or other property” and hence the Magistrates Court did have jurisdiction to hear it. That is the same conclusion was reached by the magistrate: Slocombe v Whittle [2022] ACTMC 3.
Jurisdiction
A reference appeal may be brought in this court on application of the Attorney-General, Solicitor-General or Director of Public Prosecutions: Magistrates Court Act 1930 (ACT) (MC Act), s 219AB(2). The person charged in the proceeding may be heard on a reference appeal but the decision of the Supreme Court on a reference appeal does not invalidate or affect any verdict or decision given in those proceedings: ss 219AC-219AD. The legislative intention was to “provide for a reference appeal similar to that which exists for the indictable jurisdiction under section 37S of the Supreme Court Act 1933”: Explanatory Statement, Justice and Community Safety Legislation Amendment Bill 2004 (No 2) at 4. There was no submission made in the present case that pointed to any reason why the court should decline to hear the present reference appeal: Director of Public Prosecutions v Booth [2018] ACTCA 8; 13 ACTLR 38 at [9]-[11].
The question of law to be decided is set out in the Application for Reference Appeal filed 16 September 2022 as follows:
a)What constitutes an offence that “relates to … other property” within the meaning of s 375(1)(b)(i) of the Crimes Act 1900 (ACT)?
b)In particular:
i.Does an offence “[relate] to … other property” only where it is of a nature, type or class which involves conduct intending to, or resulting in, the interference of a proprietary right (as distinct from any offence alleged to have involved, other otherwise relate to property)?
In my view, the question of law that arises out of the present proceedings is one limited to whether or not an offence against s 42(1)(a)(ii) is an offence that “relates to … other property”. It is only appropriate to answer a question relating to the circumstances of the present case even if that answer is derived from a more generally applicable principle and hence may shed some light on a broader category of cases. The Director did not appear to oppose the reformulation in the manner that I indicated. In those circumstances, the reformulated question of law is: Is an offence under s 42(1)(a)(ii) of the Firearms Act 1996 (ACT) an offence that “relates to … other property” within the meaning of s 375(1)(b)(i) of the Crimes Act 1900 (ACT)? It is not appropriate to formally answer or reformulate the second question in the application which relates to the principle which underlies the answer to the first question.
Relevant statutory provisions
Section 375 provides:
375Summary disposal of certain cases
(1)This section applies if a person is before the Magistrates Court charged with—
(a)a common law offence; or
(b)an offence punishable by imprisonment for a term not exceeding—
(i) if the offence relates to money or other property—14 years; or
(ii) in any other case—10 years; or
…
(d)an offence against the Criminal Code, section 310 (Aggravated robbery), section 311 (1) (b) (Burglary) or section 312 (Aggravated burglary).
…
(4)The court may proceed in accordance with subsections (6) to (16) if—
(a)the court considers that it has no jurisdiction, apart from this section, to hear and determine the charge summarily; and
(b)for a charge that relates to money, or to property other than a motor vehicle, and is being heard in the Magistrates Court—the court considers that the amount of the money or the value of the property does not exceed $30 000.
(5)To remove any doubt, for subsection (4) (b), property does not include real property or any building at which the offence charged was allegedly committed.
…
(Emphasis added.)
The most important words for the purposes of this appeal have been underlined in the above extract. Section 375(12) outlines matters which the Magistrates Court must consider before deciding whether a case can properly be disposed of summarily.
Section 42 of the Firearms Act 1996 (ACT) provides:
42Offence—unauthorised possession or use of prohibited firearms
(1)A person commits an offence if the person—
(a)possesses or uses—
…
(ii) 3 or more prohibited firearms, but less than 10 prohibited firearms; or
…
(b)is not authorised by a licence or permit to possess or use each of the prohibited firearms.
Maximum penalty:
…
(b) for paragraph (a)(ii) – imprisonment for 14 years; or
…
Reasons of the magistrate
The approach taken by the magistrate was to reason as follows:
(a)A prohibited firearm amounted to property even if its possession was unlawful without a licence.
(b)The expression “relates to” was one was one of wide and general import. There was nothing in the context of the legislation to suggest that “relates to” in s 375 was not intended to have its ordinary and wide operation so that a relevant connection would be sufficient to establish the relationship.
(c)The heading to Pt 6 of the Crimes Act “Offences relating to property” did not restrict the application of s 375 to offences contained within that part or of a comparable nature.
(d)It would be more compatible with s 22(2)(c) of the Human Rights Act 2004 (ACT) (HR Act) to interpret s 375 in a way that allowed the Magistrates Court to have jurisdiction because “proceedings would ordinarily be dealt with sooner by hearing in the Magistrates Court”.
The magistrate concluded that the offence of possessing prohibited firearms while not authorised by licence or permit involved proprietary rights and is therefore an offence that “relates to property”.
Submissions of the Director
The Director submitted that the expression “relates to money or other property” should be given a narrower interpretation so that the “nature and gravamen” of the offending conduct involves interference with a proprietary right, as opposed to any offending conduct in relation to which proprietary rights can be identified. The Director argued that the expression “relating to” is one of wide and general import and the degree of connection required between two subject matters joined by those words “is ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision, and, of course, the facts of the case”: Minister for Home Affairs v DLZ18 [2020] HCA 43; 270 CLR 372 at [43].
The Director submitted that subs (1), (4) and (12) reflected an intention to carefully limit the extension of the Magistrates Court’s jurisdiction. A rationale for the distinction drawn between the maximum periods of imprisonment provided for in s 375(1) was that property offences often carry higher maximum penalties even when committed in relatively minor circumstances. It was submitted that the heading to Pt 6 of the Act “Offences relating to property” was relevant to the task of working out the meaning of “relates to money or other property”. The submissions traced the historical development of the antecedent provisions ss 476 and 477 from the adoption of the Crimes Act 1900 (NSW) by operation of the Seat of Government Acceptance Act 1909 (Cth).
The decisions in Fares v Longmore (1998) 148 FLR 255 and King and Mobourne v Manning (1996) 86 A Crim R 168 were said to support the Director’s submissions.
Submissions of Mr Whittle
The submissions made on behalf of Mr Whittle point to the definitions of “property” and “in relation to” in the Legislation Act 2001 (ACT). He submitted that, consistently with the judgments in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 and 330-331, the degree of connection required by the expression “in relation to” or “relates to” is a question of degree and is dependent upon the nature and purpose of the provision and the particular context.
He submitted that, consistently with the approach taken by the magistrate, there was nothing in the context of the provision to suggest that the term “relates to” in s 375 was not intended to have its ordinary wide operation. In relation to the heading to Pt 6 of the Crimes Act “Offences relating to property”, he accepted that headings form part of the statute and may be relied upon in construing the operative provision. However, given the amendments to the Act over time, he submitted that the use of the expression in the heading does not assist in working out the meaning of s 375. He therefore contended that the expression “relates to … other property” should not be confined to an offence involving an interference with proprietary rights because such a restricted construction does not arise by implication from the terms of s 375 when viewed in its statutory context.
In supplementary written submissions Mr Whittle referred to the legislative history involving the substitution of the terms of what were ss 476 and 477 of the Act and the different ways in which the offences that could be dealt with summarily with or without the consent of an accused person were defined. He submitted that this history further undermined any contention that there was some ongoing significance of what is now the heading to Pt 6 of the Act or a known category of property offences that were being picked up in the expression “offence [relating] to money or other property”. The submissions also drew attention to the very broad definition of “property” contained in the Crimes Act as originally enacted and the moving of that definition in 1985 into what was then Pt IV and is now Pt 6.
Consideration
The interpretation of the expression “relates to money or other property” in s 375 (1)(b)(i) and the expression “relates to money, or to property other than a motor vehicle” in s 375(4)(b) is not obvious. The extrinsic material does not provide useful guidance as to the scope of the connection required in order that the charge “relates to” money or other property.
Section 139 of the Legislation Act requires that the court prefer an interpretation of the Act that would best achieve the purpose of the Act. In a scheme of careful delineation of the jurisdiction of the Magistrates Court where the extrinsic materials do not indicate any overarching purpose or otherwise provide clear guidance, the purpose of the relevant provisions has to be worked out by reference to the terms of the Act read in their total context. The exercise is an objective one carried out in accordance with orthodox principles of statutory interpretation. It does not involve any subjective analysis of what the legislature did (or more often, did not) think about. Gleeson CJ said in Singh v The Commonwealth [2004] HCA 43; 222 CLR 322 at [19]:
The danger to be avoided in references to legislative intention is that they might suggest an exercise in psychoanalysis of individuals involved in the legislative process; the value of references to legislative intention is that they express the constitutional relationship between courts and the legislature. As Kitto J said [in Sovar v Henry Lane Pty Ltd (1957) 116 CLR 397 at 405], references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred. The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation. They are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked.
In the present case, it is worth examining the legislative history of the provisions and the different ways in which, over time, the jurisdiction of the Court of Petty Sessions and, post-1985, the Magistrates Court to determine indictable matters in a summary way have been defined. This will include consideration of two decisions of the Supreme Court which informed the legislative amendments. That will provide some insight into the current mechanism by which that jurisdiction is defined. Then, recognising that s 375(1)(b) in combination with s 375(4) have general application to all indictable offences it will be relevant to understand how successfully, or otherwise, the contended for interpretations would apply to that range of statutory provisions. It will then be necessary to return to s 42 of the Firearms Act and answer the question of law that arises on this appeal.
Legislative history
In 1911 the Crimes Act 1900 (NSW), was adopted as a law of the Territory as a result of the operation of s 6 of the Seat of Government Acceptance Act 1909 (Cth). At that point the Crimes Act contained a relatively clear structure in the arrangement of the offences created by the Act:
(a)Pt III “Offences against the Person”;
(b)Pt IV “Offences relating to Property”;
(c)Pt V “Forgery”;
(d)Pt VI “Offences relating to the coinage”;
(e)Pt VII “Perjury and like offences”; and
(f)Pt VIII “Conspiracy to accuse of crime”.
Within Pt IV were theft and related offences, criminal damage to property, forgery and miscellaneous offences.
The Crimes Act contained within it the capacity to have indictable offences dealt with summarily. Section 476 gave a magistrate jurisdiction to deal summarily with the offences listed in s 477 with the consent of the accused. Section 477 contained a list of matters described in paragraphs (a)-(o). Section 476 limited the jurisdiction to cases in which “the subject matter of the charge… or the value of the property involved, does not amount to twenty pounds”.
In 1951 ss 476 and 477 were substituted so as to permit the offences listed in s 477 to be dealt with by the Court of Petty Sessions without the consent of the accused so long as the “subject matter of the charge, or the value of the property involved” did not exceed One hundred pounds” and the court did not consider that the matter ought to be tried by the Supreme Court.
In 1974 ss 476 and 477 were repealed and substituted. The new s 476 provided that the Court of Petty Sessions could deal with certain listed offences summarily (without the consent of the accused) if the court was of the opinion that the case could properly be disposed of summarily and “the amount of the money involved, or the value of the property involved” did not exceed $500.
The new s 477 provided that where the accused consented and the court considered that the case could properly be disposed of summarily, the court had jurisdiction to hear and determine the charge in a summary manner. This was subject to a further qualification that “in the case of an offence relating to money or property other than a vehicle, the amount of the money involved, or the value of the property involved” did not, in the opinion of the court, exceed $2000. Section 478 limited the application of s 477 so that it did not apply to offences punishable by life imprisonment or for a term exceeding 10 years. This was the point at which there was a departure from the legislative model that had a list of offences and the concept of “an offence relating to money or property” was introduced. However, it continued the monetary limit on the jurisdiction relating to the amount of money or the value of property involved.
In 1985 ss 476-477 were repealed and substituted with new provisions. Relevantly, the new s 477 allowed certain categories of offences to be dealt with summarily with the consent of the accused. The offences were described as follows:
(a)a common law offence; or
(b)an offence punishable by imprisonment for a term not exceeding—
(i)if the offence relates to money or other property—14 years; or
(ii)in any other case—10 years.
The capacity to deal with offences relating to “money or other property” was also qualified in s 477(2) by the requirement that “in the case of a charge relating to money or to property other than a motor vehicle” the “amount of the money or the value of the property does not, in the opinion of the Court, exceed $10,000”.
The increase in the jurisdiction so as to incorporate, in the case of offences relating to “money or other property”, offences carrying a penalty of up to 14 years gave rise to the potential that burglary (s 102) and robbery (s 100) would be within the jurisdiction when they would not otherwise be within the jurisdictional limit of 10 years.
In King and Mobourne v Manning (1996) 86 A Crim R 168 Gallop J had to decide whether a charge of robbery contrary to s 100 of the Crimes Act was an offence that “relates to money or other property”. The relevant provision provided:
A person who steals and, immediately before or at the time of doing so, and in order to do so, uses force on another person, or puts or seeks to put another person, in fear that he or she or any other person will be then and there is subjected to force, is guilty of an offence punishable, on conviction by imprisonment for 14 years.
The magistrate had decided that he had no jurisdiction because the provision was “not intended to cover offences that are a composite offence, that is to say, they involved not only money or other property but also violence”.
Gallop J identified that this fell within Pt IV of the Crimes Act “Offences Relating to Property”, within the division dealing with “Theft and related offences”. He said that these headings “have some relevance to the proper construction of s 477 because s 477 applies to an offence that relates to money or other property punishable by imprisonment for a term not exceeding 14 years”: at 172. His Honour referred to the decision of Mason J in Fountain v Alexander (1982) 150 CLR 615 at 629 in which he referred to the words “in relation to” as involving “an expression of wide and general import and should not be read down in the absence of some compelling reason for doing so”. Both parties submitted that the magistrate was in error, relying upon the literal meaning of s 477, the structure of the Crimes Act, the legislative history of the provision and the duty to construe an ambiguous provision in favour of an accused person. Gallop J accepted those submissions.
The issue was considered again in Fares v Longmore (1998) 148 FLR 255. The issue in that case was whether a charge of burglary, namely being a trespasser with intent to commit assault, was an offence which “related to money or other property” within the meaning of s 477.
Higgins J explained the earlier decision in King on the basis that the essence of robbery is theft by means of violence against the person. For that reason, even though it “involves an offence against the person, the offence of robbery can be characterised as ‘relating to’ property”.
His Honour noted that an offence may “relate to” a number of things other than money or property. The question is therefore whether the offence can be characterised as “relating to” money or other property irrespective of whether it may relate to violence against the person or something else. He gave as an example the offence of arson even in circumstances where it is aggravated by an intention to endanger the life of a person. It “relates to” property even though it could also be said to “relate to” an offence against the person.
Higgins J identified the issue in relation to burglary as being “whether the fact that the offender is a trespasser suffices to characterise the offence in question is one ‘relating to’ property”. He identified that under the Crimes Act “property” included real property. His Honour said: “it seems to me that trespass within a building remains an offence relating to property even if the purpose of that trespass is to commit a non-property offence”. As a consequence, his Honour found that the magistrate who had exercised jurisdiction on the charge of burglary was correct to do so.
In 2001 s 477 was renumbered to become s 375.
In 2008 the maximum value set out in s 375(4) of the property to which a charge could relate was increased from $10,000 to $30,000: Crimes Legislation Amendment Act 2008 (ACT). Also, the offences of aggravated robbery and aggravated burglary were added to the offences to which the summary disposal provision could apply. Therefore, the categories of charge were: common law offences, offences punishable by imprisonment of up to 14 years if the offence related to money or other property, offences with a 10 year maximum in any other case, and the offences of aggravated robbery and aggravated burglary. The offences of aggravated robbery and aggravated burglary carried maximum sentences of 25 years and 20 years respectively.
In 2013 burglary involving an intention to commit an offence involving causing harm or threatening to cause harm to anyone in the building was added in s 375(1)(c) to aggravated robbery and aggravated burglary as being offences to which s 375 could apply: Crimes Legislation Amendment Act 2013 (ACT). This confirmed the outcome in Fares that this type of burglary could be dealt with by the Magistrates Court. Further, a subsection was added (now s 375(5)) which made it clear that more generally where an offence was within s 375(1)(b)(i), the value of the real property or building at which the offence charged was allegedly committed was not to be taken into account for the purposes of the $30,000 limit.
Having reviewed the historical antecedents of s 375, the other point to note about the practical operation of s 375 is that there is a limited range of offences which fall in the category of offences that have a maximum penalty of more than 10 years but equal to or less than 14 years. The parties provided an agreed list of charges which fell into that category. Having regard to the nature of those charges, there are only a limited number which could fall into the category of relating to “money or other property” and hence avoid what would otherwise be the 10-year maximum penalty limit. The agreed list is as follows:
Crimes Act 1900 (ACT)
The charges which have a maximum penalty of 11 years are as follows:
· s 60(4) - Aggravated act of indecency without consent
· s 66(1)(a)(i) - Aggravated grooming and depraving young people
The charges which have a maximum penalty of 12 years are as follows:
· s 29(5) - [Aggravated] Culpable driving of a motor vehicle
· s 53(1) - Sexual assault in the third degree
· s 54(1) - Sexual intercourse without consent
· s 58(1) - Act of indecency in the second degree
· s 61(1) - Acts of indecency with young people
· s 64A - Trading in child exploitation material
· s 66(1)(c)(ii) - Aggravated grooming and depraving young people
The charges which have a maximum penalty of 13 years are as follows:
· s 20 - Recklessly inflicting grievous bodily harm
· s 27(3)(i) - Acts endangering life etc
· s 30(c) - Aggravated threat to kill
· s 32(2)(d) - Aggravated demands accompanied by threats
· s 59(2) - Aggravated act of indecency in the third degree
· s 61(4) - Aggravated acts of indecency with young people
· s 63(2) - Aggravated abduction
· s 64(3)(a) - Aggravated using child for production of child exploitation material etc
· s 66(1)(d)(i) - Aggravated grooming and depraving young people
The charges which have a maximum penalty of 14 years are as follows:
· s 29(2) - Culpable driving of a motor vehicle [causing death]
· s 161 - Rescuing a prisoner from custody etc
· s 52(1) - Sexual assault in the second degree
· s 53(3) - Sexual assault in the third degree
· s 54(3) - Sexual intercourse without consent
· s 55(3) - Sexual intercourse with young person
Criminal Code 2002 (ACT)
The charges which have a maximum penalty of 14 years are as follows:
· s 309 - Robbery
· s 311 - Burglary
· s 342 - Blackmail
· s 702 - Aggravated perjury
· s 703(3) - Perjury
Firearms Act 1996 (ACT)
The charge which has a maximum penalty of 14 years is as follows:
· s 42(1)(b) - Offence—unauthorised possession or use of prohibited firearms - for 3 or more prohibited firearms but less than 10 prohibited firearms
Without attempting to be comprehensive, only a limited number of these would appear to be offences which, on the broad interpretation contended for by Mr Whittle, would be an offence that “relates to money or other property”. Those include: aggravated culpable driving of a motor vehicle, trading in child exploitation material, aggravated using a child for production of child exploitation material, culpable driving of a motor vehicle causing death, robbery and burglary.
The limited number of the provisions which the Magistrates Court may be permitted to deal with pursuant to s 375(1)(b)(i) indicates that the restriction in that paragraph is likely to be less significant than the restriction in s 375(4)(b) because that applies not just to the offences in the 10 to 14 year maximum penalty range but to all offences that “[relate] to money, or to property other than a motor vehicle” and limit the jurisdiction to matters where the court considers that the amount of money or the value of the property does not exceed $30,000.
This point may be illustrated by reference to an example. The Criminal Code prohibits trafficking in trafficable quantities of cannabis or a controlled drug other than cannabis (s 603(5) and (7)). The maximum penalty is 10 years’ imprisonment. Such drugs, even though illegally possessed, can be considered to be property: R v Waterhouse (1911) 11 SR (NSW) 217; Anic, Stylianou and Suleyman v The Queen (1993) 61 SASR 223. If such offences are within the scope of the expression an offence that “relates to money or other property” then notwithstanding that the maximum penalty is 10 years, because of s 375(4) they will not be able to be dealt with in the Magistrates Court if the value of the drugs exceed $30,000. That would be the case notwithstanding that the accused consented and the matter was otherwise suitable to be heard there.
Contrary to the approach adopted by the magistrate, it is not at all clear that a broad interpretation of the expression “relates to money or other property” in s 375(1)(b)(i) would expand the jurisdiction of the Magistrates Court. Because the same expression is also used in s 375(4)(b), the effect of a broad interpretation of the expression “relates to money or other property” may, in fact, have the effect of reducing the range of matters that could be dealt with by the Magistrates Court. Whether or not that is the case would depend upon a detailed empirical analysis of the charges actually brought and the value of the money or property the subject of those charges.
While dealing with the issue of whether a broad interpretation would expand or contract the jurisdiction of the Magistrates Court, it is worth mentioning that the invocation of s 22(2)(c) of the HR Act by the magistrate was in error. Section 22 of the HR Act relates to rights in criminal proceedings. Section 22(2)(c) provides that anyone charged with a criminal offence is entitled “to be tried without unreasonable delay”. The reasoning of the magistrate was to the effect that:
(a)A broad interpretation will expand the jurisdiction of Magistrates Court.
(b)The Magistrates Court would ordinarily deal with cases more quickly than the Supreme Court.
(c)Therefore s 22 of the HR Act favours a broad interpretation: Slocombe at [22].
As pointed out in the previous paragraph, because of the constraining effect of s 375(4) on the jurisdiction of the Magistrates Court the first proposition cannot be accepted in the absence of any empirical analysis of cases commenced in the Magistrates Court. The third proposition which is reliant on s 22 also incorporates an error. The right in s 22(2)(c) is not engaged unless any trial delay is, or would be, “unreasonable”. No actual or potential unreasonable delay was established in this case or in relation to the conduct of trials on indictment in the Supreme Court generally. In those circumstances, it was not open to use s 22(2)(c) to interpret the terms of s 375. It is not open to reason that the provision is engaged whenever there is a potential for a criminal trial to be conducted sooner. Care must be taken to apply the words of the HR Act in accordance with their terms rather than for general propositions which the language of the provision cannot support.
The competing interpretations applied
It is well established that the phrase “relating to” is one of wide import. In Minister for Home Affairs v DLZ18 at [43] the High Court said:
This Court has often said that the phrase “relating to” is one of wide import. It can refer to a direct or indirect connection between two subject matters, and one subject matter can “relate to” another subject matter even though the first subject matter also relates to other things. The degree of connection required between two subject matters joined by the words “relating to” is ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision, and, of course, the facts of the case.
(Footnotes omitted.)
The footnotes to this passage include a large number of cases cited for the propositions articulated in it. Those include Fountain v Alexander referred to by Gallop J in King and PMT Partners, referred to in the interested party’s submissions. For present purposes it provides a workable summary of the principles to be applied.
In the present case, both the Director and Mr Whittle accepted that the expression “relates to” must involve some constraint. The approach adopted on behalf of Mr Whittle was to define the scope of the expression by reference to offences which by their terms necessarily involved property. Thus, offences which merely, as a matter of underlying fact, involved property would not be sufficient to come within the expression. For example, an offence of aggravated wounding would not “relate to” property just because the wound was inflicted with an item of property such as a knife.
The submission of the Director seeks to impose a constraint on the expression “relates to” based upon conclusions about the overall purpose of the provision derived from the role that it plays in controlling jurisdiction over the determination of criminal offences and the terms of the provision itself. That involves placing emphasis upon the fact that it is regulating criminal offences, a number of which involve interference with proprietary rights and the fact that the provision incorporates a value limit which is used to define the jurisdiction of the Magistrates Court and that value limit appropriately reflects matters relevant to jurisdiction where the offences involve interference with proprietary rights.
Neither party contended for an interpretation which lacked an underlying general principle. The parties correctly sought a generally applicable approach to the connection required by the expression “relates to” and impliedly disavowed an offence by offence determination of what was sufficient to amount to sufficient connection between the offence and the property.
When applied to a range of different offence provisions both the Director’s and Mr Whittle’s interpretations generate outcomes which might be considered to be anomalous. However, ultimately the application of the competing interpretations to a range of different provisions illustrates that the more restrictive interpretation of the scope of the expression “relates to” contended for by the Director cannot be accepted. The examples given below will illustrate why this is so.
One example is the provision in question in the present case, s 42 of the Firearms Act. If Mr Whittle’s argument is correct, then if the up to nine prohibited firearms covered by the provision exceeded $30,000 in value, the Magistrates Court would have no jurisdiction to deal with the charge of their possession. This may seem to be an arbitrary basis upon which to determine jurisdiction as the value of the items has no relevance to the reason for the offence existing. The offence relates to the control of potentially dangerous weapons and it is not relevant to the offence how expensive those weapons happen to be.
A second example is the drug trafficking offences referred to earlier. The drug trafficking offences are not defined by reference to acts which involve interference with proprietary rights and hence would not be captured by the Director’s conception of “relates to … property”. However, if a broad interpretation of “relates to” is adopted as contended for by Mr Whittle then the offence clearly “relates to … property” because trafficking involves dealing with the property in the ways contemplated in the definition in s 602 of the Criminal Code.
A third example is the offence of trading in child exploitation material contrary to s 64A of the Crimes Act or possessing child exploitation material contrary to s 65 of that Act. The content of these offences is defined by reference to trading or possessing material that is property. Having regard to the definition of child exploitation material in s 64(5), that material may be tangible or intangible property. A broad interpretation of the expression “relates to” would mean that these offences related to property. The consideration of the value of the material which would be required to be considered for the purposes of s 375(4) might be seen to be at least unusual and perhaps anomalous. However, the value of such material is possibly relevant to the assessment of the gravity of the trading offence in the same way that the value of the drugs trafficked may be relevant to the gravity of a drug trafficking offence. As a consequence, it cannot be said that the existence of a jurisdictional limit based on value of the property concerned would be clearly anomalous. The same may be said of those offences relating to distribution of intimate images in ss 72C and 72D of the Crimes Act.
A fourth example is the money laundering offences in ss 114B and 114C of the Crimes Act. Significantly, these offences pick up the expression “money or other property”. Section 114B makes it an offence to “deal” with “money or other property” if the property is the proceeds of crime and the person is reckless about that fact. Section 114C is a strict liability offence which makes it an offence to deal with “money or other property” if it is the proceeds of crime. In neither case will there necessarily be an interference with a proprietary right in order for the offence to be made out. That is because the definition of proceeds of crime is so broad as to cover property directly or indirectly derived from the commission of other offences. Not only may the underlying crime be remote from the money or other property that constitutes its proceeds, but the underlying crime may not be one that involves money or other property as an element of the offence. Yet there can be no doubt, having regard to the use of the phrase “money or other property” that this offence is within the purview of s 375(4)(b). It would be unusual for a distinctive expression such as this to have a different meaning in different parts of the same Act. Thus, the existence of and terms of these offences appear to be directly inconsistent with the formulation of the scope of the expression “relates to” contended for by the Director. Given that these offences by their terms relate to “money or other property” yet do not incorporate as part of the offence an interference with a proprietary right of anybody, it is not possible to sustain as a general proposition that such an interference must be implied into the concept of “relates to” in s 375.
The picture is therefore a mixed one. The terms of ss 114B and 114C of the Crimes Act appeared directly contrary to the contention propounded for by the Director. So far as other offence provisions referred to in the examples above are concerned, the plausible utility of considering the value of drugs possessed or child exploitation material sold undermines the contention that s 375(4) would only be consistent with its context if it applied in circumstances where there was an interference with proprietary rights. The historical fact that the originally enacted Crimes Act contained a relatively coherently organised collection of offences relating to property is not of much significance when the coherence of that scheme has broken down over time and the jurisdictional provisions have been amended on as many occasions as they have.
Because the general interpretive principle proposed by the Director to inform the content of the connecting phrase “relates to” cannot be supported across the range of different offence provisions and there is at least a plausible justification for the use of a monetary value of property as tool for determining the appropriate jurisdiction, it is not possible to determine the question of law in the manner contended for by the Director.
Application to s 42
Section 42 refers to the possession of items which are within the definition of property, that is, prohibited firearms. The offence does not involve or arise from any interference with a proprietary right in relation to that property. The rejection of the Director’s contention as to what is required in order to establish that an offence “relates to … other property” means that s 42 is not excluded from the scope of s 375(1)(b)(i) because it does not involve or arise from any such interference. The offence is one that arises from possession of property of a particular type. That is sufficient for it to be within the scope of the expression “relates to… other property” in s 375(1)(b)(i).
Answers to questions
As reformulated the answers to the questions of law will be as follows:
Question (a): Is an offence under s 42(1)(a)(ii) of the Firearms Act 1996 (ACT) an offence that “relates to … other property” within the meaning of s 375(1)(b)(i) of the Crimes Act 1900 (ACT).
Answer: Yes.
Question (b): Does an offence “[relate] to … other property” only where it is of a nature, type or class which involves conduct intending to, or resulting in, the interference of a proprietary right (as distinct from any offence alleged to have involved, or otherwise relate to property)?
Answer: It is not appropriate to answer this question.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 March 2023 |
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