Gardner v Chief Magistrate Walker
[2023] ACTSC 96
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Gardner v Chief Magistrate Walker | ||
| Citation: | [2023] ACTSC 96 | ||
| Hearing Date: | 20 April 2023 | ||
| Decision Date: | 20 April 2023 | ||
| Before: | McCallum CJ | ||
| Decision: |
|
until further order.
(2) Stand the matter over to Friday 19 May 2023 at 9:30am before McCallum CJ.
Catchwords: | COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – Inferior courts – Judicial review of extradition order by a magistrate – application to quash extradition order – whether |
| arrest warrant is invalid because it does not disclose jurisdiction | |
| on its face – whether order made by the magistrate was infected | |
| by jurisdictional error because of the invalidity of the arrest | |
| warrant – whether the supervisory jurisdiction of the Supreme | |
| Court is excluded by the Service and Execution Process Act 1992 (Cth) | |
| Legislation Cited: | Bail Act 1992 (ACT) ss 8A, 20B Constitution (Cth) s 109 Court Procedures Act 2004 (ACT) s 27 Court Procedures Rules 2006 (ACT) rr 3550, 3557 Crimes (Sentence Administration) Act 2005 (ACT) s 107 Crimes Act 1900 (ACT) s 25 Criminal Procedure Act 1986 (NSW) ss 54, 181, 236 Service and Execution of Process Act 1992 (Cth) ss 83, 86 |
| Supreme Court Act 1933 (ACT) s 34B | |
| Cases Cited: | Burns v Romeo [2018] SASC 34; 331 FLR 270 |
| Kirk v Industrial Relations Commission of New South Wales | |
| [2010] HCA 1; 239 CLR 531 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v Tillett, ex parte Newton (1969) 14 FLR 101 Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305; 263 FLR 263 Zeltner v Deputy Registrar of the Supreme Court (No 2) [2022] ACTCA 30 | |
| Parties: | Jaiden Dale Gardner (Plaintiff) Chief Magistrate Lorraine Walker (First Defendant) The Commissioner of Police, New South Wales Police Force (Second Defendant) Attorney-General of the Australian Capital Territory (Intervenor) |
| Representation: | Counsel |
| P Edmonds (Plaintiff) K Zielinski (Second Defendant) | |
| M Hassall (Intervenor) | |
| Solicitors | |
| Paul Edmonds & Associates (Plaintiff) | |
| Crown Solicitor’s Office (NSW) (Second Defendant) | |
| ACT Government Solicitor (Intervenor) | |
| File Number: | SC 141 of 2023 |
| McCALLUM CJ: |
1. Jaiden Gardner is before the Court today in two sets of proceedings. First, on 6
December 2022, he was committed to this Court to be dealt with for breach of his good
behaviour obligations entered into on 12 October 2020 in accordance with a sentence
imposed by Elkaim J. I will refer to those proceedings as the breach proceedings.
2. Those proceedings first came before me on 27 February 2023. At that time, I
foreshadowed dealing with the breach in a manner that would include a form of
supervision with a residential rehabilitation condition. I adjourned the proceedings to
enable Mr Gardner’s solicitor, Mr Edmonds, to attempt to obtain a placement in a suitable
program.
3. In the meantime, it was ascertained that an extradition order had been made at an earlier
point in time which, if executed at the time of Mr Gardner’s release from gaol, would have
the effect of interfering with the determination of the breach proceedings because Mr
Gardner would be taken into custody in New South Wales. The extradition order is the
subject of the second proceedings. By originating application dated 14 February 2023,
Mr Gardner seeks an order in the nature of certiorari quashing the extradition order. I
will refer to those proceedings as the judicial review proceedings.
4. In order to understand how the two proceedings have unfolded and my reasons for
dealing with them in the manner I propose, it is helpful to explain their history in more
detail.
5. On 7 February 2020, Mr Gardner committed an offence in the ACT of occasioning
grievous bodily harm contrary to s 25 of the Crimes Act 1900 (ACT). That offence carries
a maximum penalty of imprisonment for five years. On 28 March 2020, whilst in custody
at the Alexander Maconochie Centre on remand for that offence, he committed the more
serious offence of intentionally inflicting grievous bodily harm contrary to s 19 of the
Crimes Act. That offence carries a maximum penalty of imprisonment for 20 years.
6. On 12 October 2020, Mr Gardner was sentenced for the first offence by Elkaim J: see
R v Gardner [2020] ACTSC 278. His Honour imposed a sentence of imprisonment for a
period of 12 months backdated to commence on 12 July 2020 and ending on 11 July
2021. His Honour suspended that sentence with immediate effect on condition that the
offender enter into a good behaviour order for a period of 12 months on certain
conditions. That 12-month period accordingly commenced on 12 October 2020 and
expired on 11 October 2021.
7. On 4 September 2021, shortly before the expiration of the good behaviour order, Mr
Gardner committed an offence of possessing a prohibited weapon. The commission of
that offence constituted a breach of the good behaviour order imposed by Elkaim J.
8. On 24 November 2021, the offender pleaded guilty to the offence of intentionally inflicting
grievous bodily harm. He was sentenced for that offence on 4 March 2022 by Norrish
AJ: see R v Gardner [2022] ACTSC 36. His Honour imposed a sentence of
imprisonment for a period of three years backdated to commence on 21 October 2021,
reduced from three years and six months to reflect the utilitarian value of the plea. His
Honour suspended that sentence from 21 April 2023 upon the offender's entering into a
good behaviour order for a period of 18 months commencing on 21 April 2023 and
expiring on 20 October 2024.
9. It follows that, but for the outstanding breach proceedings, Mr Gardner is otherwise
entitled to be released from custody tomorrow having served the unsuspended portion
of the sentence imposed by Norrish AJ.
10. However, at the time Norrish AJ imposed that sentence, Mr Gardner had still not been
dealt with for the prohibited weapon offence. He was sentenced for that offence by
Magistrate Taylor on 6 December 2022. Her Honour imposed a term of imprisonment
for three months wholly backdated and accordingly wholly concurrent with the sentence
imposed by Norrish AJ. At the same time, as required by s 107(2) of the Crimes
(Sentence Administration) Act 2005 (ACT), her Honour committed Mr Gardner to this
Court to be dealt with for the breach; that is, the breach of the good behaviour order
entered into in accordance with the sentence imposed by Elkaim J constituted in the
commission of the weapon offence.
11. As I have indicated, the breach proceedings came before me on 27 February 2023. By
then, Mr Gardner had served the whole of the sentence imposed for the possession of a
prohibited weapon (being a taser) and most of the sentence for the intentional infliction
of grievous bodily harm. As I have already indicated, I adjourned the proceedings to
enable Mr Edmonds to explore rehabilitation options for Mr Gardner.
12. In the meantime, Mr Edmonds learned of the extradition order. That order was made on
7 March 2022, shortly after Norrish AJ imposed the sentence to which I have referred.
At that time, it was known that Mr Gardner was otherwise due for release tomorrow.
What may not have been known is that he was yet to be dealt with for breach of the
earlier good behaviour order entered into as an aspect of the sentence imposed by
Elkaim J. In any event, Chief Magistrate Walker, made the following order:
I order that Jaiden Dale Gardner be taken in the custody of an officer of the New South Wales Police Force to the Local Court of New South Wales at Cooma by 4pm. Pursuant to s 83(ii) SEPA, this order is suspended until 8am 21 April 2023.
13. As already explained, it was apprehended that if the extradition order was executed it
would interfere with the resolution of the breach proceedings due to be dealt with before
me earlier this week on 17 April 2023. It was in those circumstances that the judicial
review proceedings were commenced on an urgent basis on 14 April 2023.
14. In particular, Mr Edmonds apprehended that if, as anticipated, Mr Gardner was released
tomorrow on the good behaviour order requiring entry into a rehabilitation facility (the
order I had foreshadowed) he would instead be delivered into the custody of New South
Wales Police and taken to Cooma Local Court. In those circumstances, I listed both
proceedings before me today.
15. The judicial review proceedings raise an interesting question as to the validity of the New
South Wales warrant on the strength of which the extradition order was made.
16. Mr Edmonds accepted that the application requires leave because it is out of time. That
was on the premise that the application invokes this Court's supervisory jurisdiction,
proceedings in respect of which must be commenced within 60 days under r 3557 of the
Court Procedures Rules 2006 (ACT).
17. Mr Edmonds submitted that there is a presumption at common law that a warrant must
disclose its jurisdiction on its face, including here what was contended to be the
“jurisdictional fact” that the judicial officer in New South Wales who issued the warrant
was satisfied in the terms of the relevant provisions of the Criminal Procedure Act 1986
(NSW). In particular, ss 54(2) and 181(2) of the Criminal Procedure Act provide:
An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a Magistrate, issue a warrant to arrest the accused person if the authorised officer is satisfied that there are substantial reasons to do so and that it is in the interests of justice to do so.
18. As the submission was developed and in response to submissions put on behalf of the
defendants to the judicial review proceedings, Mr Edmonds made plain that he does not
contend the warrant must on its face record what were the reasons for issuing the
warrant. Rather, his submission was confined to the contention that the warrant must on
its face record the fact that the authorised officer was satisfied in the terms of the statute
by the inclusion, for example, of words to the effect: “I, [authorised officer], being satisfied
that there are substantial reasons to do so and that it is in the interests of justice to do
so, order…” et cetera.
19. Mr Edmonds submitted that, while the presumption of regularity might otherwise mean
that a person examining the warrant for validity could not go behind its terms, that
presumption does not apply to a subordinate authority; that is, anyone other than a
judicial officer of a superior court. In support of that submission, he cited the decision of
this Court in R v Tillett, ex parte Newton (1969) 14 FLR 101 and a decision of the
Supreme Court of South Australia in Burns v Romeo [2018] SASC 34; 331 FLR 270 at
[57].
20. In Burns v Romeo, an accused person was arrested by members of the South Australia
Police on a first instance warrant issued out of the Northern Territory and brought before
a magistrate in South Australia. There was a challenge to the validity of the warrant.
The magistrate determined that the warrant was valid and then granted bail to the
accused (rather than ordering that he be taken back to the Northern Territory in custody).
The prosecution sought review of the decision to grant bail. The Supreme Court of South
Australia (Nicholson J) found at [24] that the power to review the bail order was
predicated on the validity of the warrant. His Honour found that the warrant was invalid
on its face and that the accused was accordingly entitled to be released. The basis for
the invalidity was that the warrant did not disclose on its face the jurisdictional fact in
s 121(3)(c) of the Police Administration Act 1978 (NT) (that “a justice of the peace shall
not issue a warrant...unless…(c) the justice of the peace is satisfied that there are
reasonable grounds for issuing the warrant”): Burns v Romeo at [75]-[76]. Mr Edmonds
contended that requirement is cognate with the requirement under the New South Wales
legislation to which I have referred.
In summary, Mr Edmonds’ contentions were first, that the arrest warrant is invalid
because it does not disclose jurisdiction on its face; and secondly, that the Chief
Magistrate’s decision to accede to the application for an extradition order entailed either
error of law on the face of the record or jurisdictional error because of the invalidity of the
warrant on its face.
22. The defendants to the judicial review proceedings are, first, the Chief Magistrate (who
has filed a submitting appearance) as first defendant and the New South Wales
Commissioner of Police as second defendant. While the Chief Magistrate of course did
not appear, the Attorney-General of the Australian Capital Territory appeared as
intervenor in accordance with s 27 of the Court Procedures Act 2004 (ACT). The New
South Wales Commissioner of Police was represented by Ms Zielinski.
23. Mr Hassall, who appeared for the Attorney-General, submitted that the judicial review
proceedings are incompetent because s 86 of the Service and Execution of Process Act
1992 (Cth) evinces an intention to cover the field of avenues for review of a decision under that Act. He relied on a line of Victorian authority, the most recent of which being
Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305; 263 FLR 263 in which
Pagone J said at [3]:
In Re Dalton, Batt J (as he then was) said that s 86 provided a code for curial challenge and was intended to cover the field of remedies available. In Rose v Chief Commissioner of Police, Hedigan J also held that the provisions were enacted to provide an exclusive regime or legislative code in replacement of earlier provisions with wider considerations. In Berichon v Chief Commissioner, Victoria Police Mandie J (as he then was) considered that the
Supreme Court on a review under s 86 has “no greater power on a review, by way of rehearing”, than that expressly conferred upon a Magistrate by s 83. Those decisions were
based upon a consideration of the text of the provisions, the legislative history of the provisions and reference to the Second Reading Speech when introducing the substance of the current provisions into Parliament. I agree with the conclusions expressed in those decisions for the same reasons as expressed by their Honours in each case. The language of the section evinces a parliamentary intention to provide a mandatory and exclusive regime for applications under its provision and also upon subsequent review by this Court. The substitution of the current provisions for those which had previously been applicable with wider grounds for the release of an apprehended person supports that construction, as does reference to the Second Reading Speech, when the substantial terms of the current provisions were introduced into Parliament and were enacted. I would, in any event, follow those decisions unless they were shown to be clearly wrong which they are not shown to be.
24. Mr Hassall submitted, in reliance on those remarks, that to the extent that s 34B of the
Supreme Court Act 1933 (ACT) and r 3550 of the Court Procedures Rules are relied
upon by Mr Gardner as a source of power for the ACT Supreme Court to review the Chief
Magistrate’s decision made pursuant to s 83 of the Service and Execution of Process
Act, they are inconsistent with what he contended is a code for curial challenge provided
for specifically in the Commonwealth Act and are therefore invalid in accordance with
s 109 of the Constitution (Cth). So much may be accepted, for the purpose of argument.
25. However, as submitted by Mr Edmonds, following the decision of the High Court in
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531,
it would not follow that the supervisory jurisdiction of this Court is excluded by the Service
and Execution of Process Act if it be the case that the first instance warrant issued for
the arrest of Mr Gardner in New South Wales is invalid because it does not record the
existence of the state of satisfaction required to be reached by the person issuing the
warrant on the face of the warrant.
26. If it further be the case, as submitted by Mr Edmonds, that that state of satisfaction is a
jurisdictional fact, it would follow that the Chief Magistrate’s order pursuant to s 83 of the
Service and Execution of Process Act was made without authority. I am not persuaded
that the line of authority referred to in Rodgers precludes this Court’s jurisdiction to review
that decision for jurisdictional error.
27. Ms Zielinski submitted that the warrant does not need on its face to state the reasons the
person issuing the warrant reached the state of satisfaction required under ss 54 and
181 of the Criminal Procedure Act. She relied in that context on the decision of the ACT
Court of Appeal in Zeltner v Deputy Registrar of the Supreme Court (No 2) [2022]
ACTCA 30.
28. I think, however, Mr Edmonds’ argument made a narrower point. He did not contend
that there was any requirement for the reasons to be disclosed on the face of the warrant,
or indeed elsewhere on the record, but only that the jurisdictional fact of having reached
the relevant state of satisfaction be recorded on the face of the warrant.
29. Curiously, while s 236 of the Criminal Procedure Act states that “a warrant to arrest a
person must be in the form prescribed by the rules”, so far as the parties’ research
revealed, no form has been promulgated in New South Wales in any rule. The form of
the warrant in evidence before me does not include the formula of words to which I have
referred in the nature of a recording of the state of satisfaction of the decision-maker.
30. Ms Zielinski further submitted that there is no express requirement in the Act to record
that fact. So much may be accepted. However, Mr Edmonds’ argument, as I understood
it, was based rather on the combination of the common law principle to which he referred
(that the presumption of regularity does not apply to a subordinate authority) and the
proper construction of the sections authorising the issue of first instance warrants in New
South Wales.
31. It is undesirable for this Court to determine, on such an urgent basis and in circumstances
where the parties have not had a fair opportunity to fully address the Court, an issue of
such significance to another jurisdiction as the validity of its standard or ordinary form of
first instance warrant. The plaintiff’s arguments, however, have persuaded me that,
notwithstanding the different wording of the New South Wales statute, there is at least a
prima facie basis for staying the extradition order until the matter can be determined on
a final basis, if indeed that remains necessary in light of the way in which the argument
developed this morning.
32. Ms Zielinski informed me that the warrant is in the form in which warrants are ordinarily
issued in New South Wales and further that, in the way in which the JusticeLink electronic
record system operates, a warrant cannot be edited in the manner Mr Edmonds contends
it would need to be in order to be valid. The significance of that submission is that, if Mr
Edmonds' argument is correct, it would have extensive implications for the administration
of justice in New South Wales. That may be a cogent reason for these proceedings not
to be determined on a final basis if that is unnecessary. Certainly, if it is proposed by Mr Gardner to proceed with the judicial review application, it would seem appropriate for the
state of New South Wales to be represented and heard in circumstances where there
has been a full opportunity to prepare for the issue.
33. [Her Honour dealt separately with the issue of bail].
34. In all the circumstances, and for the reasons I have given, I make the following orders in
the judicial review proceedings:
(1) The order made by the Chief Magistrate on 7 March 2022 is stayed until further order.
(2) Stand the matter over to Friday 19 May 2023 at 9:30am before McCallum CJ. I certify that the preceding thirty-four [34] numbered
paragraphs are a true copy of the Reasons for
Judgment of her Honour Chief Justice McCallum
Associate:
Date: 8 May 2023
0
0