Gary Phillip Worthington-Eyre v District Court (SA) & SA Police No. Scgrg-97-475 Judgment No. 6307 Number of Pages 4 Criminal Law

[1997] SASC 6307

IN THE SUPREME COURT OF SOUTH AUSTRALIA

OLSSON J

Criminal law - jurisdiction, practice and procedure - jurisdiction - application for judicial review - plaintiff pleaded guilty to 23 counts on information before the Magistrates Court - matter was "committed" to the District Court for sentencing - plaintiff wished to change his pleas - District Court Judge ruled that the plaintiff could only change his pleas of guilty by leave - application to declare that ruling "wrong in law and therefore invalid" - consideration of procedural issues which arose before the magistrate - whether the plaintiff was lawfully committed for sentence pursuant to section 19 of the Criminal Law (Sentencing) Act - procedure adopted substantially inappropriate and matter not lawfully before District Court - consideration of the sentence that the Magistrate could have imposed - order that the ruling of the District Court and the purported Form 10 Committal of the plaintiff for sentence in the District Court be quashed - that the information be remitted to the learned Magistrate to be dealt with by him according to law - that the defendant pay to the plaintiff the costs of the present proceedings to be taxed, if not agreed. Criminal Law (Sentencing)Act 1988 s19(3); Summary Procedure Act 1921ss 111, 105, 103, referred to. Ticala and Ene v Police (Lander J, 16 July 1997, Judt No. S6262, unreported), applied. Rang v SA Police (Mullighan J, 12 November 1993, Judt No S4263, unreported); Canino v Venning (1993) 66 A Crim R 92; The Queen v Clayton
(1984) 35 SASR 232; Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; R v Roach (1990) 54 SASR 491, discussed.

ADELAIDE, 11 August 1997 (hearing and decision)

#DATE 11:8:1997

#ADD 4:9:1997

Plaintiff :

Counsel: Mr D Petracarro

Solicitors: Caldicott & Co

DefendantS: District Court of South Australia and South Australian Police:

Counsel: Mr K Soetratma

Solicitors: DPP (SA)

Order: publication of reasons for decision.

OLSSON J

These reasons are published pursuant to a right reserved by me on 11 August 1997.

This is an application for judicial review of a decision of a judge of the District Court, sitting in the criminal jurisdiction. The application seeks a declaration that a ruling made by the learned Judge that, in the relevant circumstances, the plaintiff may only change his plea of guilty to various offences by leave is "wrong in law and therefore invalid".

The facts giving rise to the application are of simple compass and not in dispute.

The plaintiff was originally charged, on information, with a total of 158 counts of false pretences and fraudulent conversion. Those offences are classified in the minor indictable category and, potentially, were susceptible of determination in the Magistrates Court.

When the matter came before the Magistrates Court on 12 July 1996 the plaintiff was represented by counsel and entered pleas of guilty to 23 counts. At the time the Court was informed that a list of other offences to be taken into consideration would be presented at a later remand date.

On 15 July the matter again came before the Magistrates Court, at which point certain statements of agreed facts and schedules were tendered. The matter was then adjourned to 7 August for disputed facts evidence to be taken.

The matter appears to have been called on again on 7 August, at which time, according to the endorsement on the file -

"H.H. is of the opinion that the possible penalty is beyond his jurisdiction and commits the deft. to the District Court for sentence on 9.9.96 @ 10"

A formal instrument of committal for sentence in Form 10 was later signed by the presiding Magistrate in respect of the 23 counts to which the pleas had been entered.

I pause at this juncture to note that the apparent view of the learned Magistrate that he was constrained by the provisions of section 19(3) of the Criminal Law (Sentencing) Act, 1988 ("the CLSA") in respect of the totality of the offences pleaded reflects a misapprehension, on his part, of the relevant statutory provisions on his part. I need do no more than advert to the recent decision of this Court in Ticala and Ene v Police (Lander J, 16 July 1997, Judt No S6262, unreported) ("Ticala") which followed the consistent line of reasoning in earlier cases such as Rang v SA Police (Mullighan J, 12 November 1993, Judt No S4263, unreported) and Canino v Venning (1993) 66 A Crim R 92 - albeit in relation to differing statutory provisions.

When the matter came before the District Court a date was initially fixed for a disputed facts hearing. However, this did not proceed, because counsel for the plaintiff indicated that his client desired to change his pleas. An issue then arose as to whether or not this could be done as of right, or required leave. If the latter was the situation then the plaintiff would have been required to run the gauntlet of authorities such as The Queen v Clayton
(1984) 35 SASR 232; Attorney-General v Kitchen and Roberts (1989) 51 SASR 54 and R v Roach (1990) 54 SASR 491.

Having heard submissions from the parties (which did not include the primary submission advanced before me) the learned Judge held that the facts did not fall within section 111 of the Summary Procedure Act, 1921 ("the SPA") and that, accordingly, leave to change pleas was required.

That ruling precipitated the present application.

In my opinion the proceedings before the learned Judge were a nullity; and he had no jurisdiction to entertain them, for reasons which were not placed in contention before him.

It seems to me that, in doing what he did, the learned Magistrate confused two quite distinct and separate procedural processes.

The committal procedure (and Form 10 associated with it) derive their genesis from section 105 of the SPA. That section constitutes a specific code as to what is to occur in the context of a preliminary examination conducted pursuant to Division II of Part V of that statute. In the case of a minor indictable offence such an examination takes place upon election for trial in a superior court, failing which the preliminary magistrate must proceed to deal with the matter "in the same way as a charge of a summary offence" - section 103(3).

If a preliminary examination is properly conducted, pursuant to section 108, in accordance with the statute, then, if -

* the defendant returns a written plea admitting the relevant charges in accordance with the Magistrates Court Rules; or
* the defendant appears at the preliminary hearing and pleads guilty to the relevant charges,

that defendant must be remanded to the appropriate superior court for sentence. However, pursuant to section 105(4), a plea may be withdrawn, as of right, before the conclusion of the preliminary examination.

It is in relation to the above process that the Form 10 committal procedure is activated.

Pursuant to section 111 of the SPA it remains open to a defendant, after a Form 10 committal for sentence, on appearing before the relevant superior court, to withdraw a plea of guilty. In that case, the superior court has a discretion to remit the case for a preliminary examination before trial.

In the instant case no preliminary examination, as such, was ever embarked on. No-one has ever suggested that the plaintiff made an election of the nature contemplated by section 103 and none is recorded by endorsement on the information. The endorsements on that document clearly indicate that the matter simply came before the learned Magistrate to be dealt with in conformity with section 103(3), that is each charge fell to be disposed of "in the same way as a charge of a summary offence".

In accordance with that procedure, and in the context of it, the pleas were entered by the plaintiff.

It followed, upon such scenario, that the only means by which the matter could then have been transmitted to a superior court was by an order, made pursuant to section 19(5) of the CLSA, remanding the plaintiff to appear for sentence in the District Court. Not only was such an order never made, but it is also impossible to perceive any logical basis whereby the learned Magistrate could have arrived at the opinion, required to activate section 19(5), that a sentence should be imposed on the plaintiff that exceeded a relevant upper limit binding on him. Having regard to the reasoning in Ticala (with which I respectfully agree) the learned Magistrate could have imposed a single, global term of imprisonment in respect of the 23 counts up to a maximum of 46 years or a single, global fine of up to $3,450,000. That a single global penalty was appropriate in the circumstances is self-evident.

This was, accordingly, a matter which ought to have been dealt with by the learned Magistrate.

Be that as it may, because the plaintiff was never lawfully committed for sentence in accordance with section 105 of the SPA and there never any remand for sentence pursuant to section 19 of the CLSA, the proceedings were not, at any stage, lawfully before the District Court.

It was on that basis that, when the plaintiff's application came before me, I ordered that -

(1) The ruling of the learned District Court Judge and the purported Form 10 Committal of the plaintiff for sentence in the District Court be quashed;

(2) The information be remitted to the learned Magistrate to be dealt with by him according to law; and that

(3) The defendant pay to the plaintiff the costs of the present proceedings to be taxed, if not agreed.