Markisic & Anor v Vizza & Ors

[2001] NSWSC 1155

CITATION:	Markisic & Anor v Vizza & Ors [2001] NSWSC 1155
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	SC 12583/01
HEARING DATE(S):	5 November 2001
JUDGMENT DATE:	14 December 2001
PARTIES :	Oliver Markisic (First Prosecutor) Dragan Markisic (Second Prosecutor) G Vizza (1st Def) D Muirhead (2nd Def) N Levett (3rd Def) J McGinness (4th Def) T McDonald (5th Def) C White (6th Def) L Anthony (7th Def) R Flohm (8th Def) M Twohill (9th Def) Centacare Pty Limited (10th Def) H O'Brien (11th Def) J Robertson (12th Def) C Robertson (13 Def) M Robertson (14th Def) J Hurst (15th Def) A Bareet (16th Def) Qantas Airways Limited (17th Def)
JUDGMENT OF:	McClellan J

COUNSEL :	1st & 2nd Prosecutors (in person) No appearance for 1st, 5th & 8th Defs V Hartstein (2nd, 6th, 7th, 9th Def) D P Robinson (3rd, 4th, 15th, 16th Defs) A Kohn (10th to 14th Defs) G Nell (17th Def)
SOLICITORS:	1st & 2nd Prosecutors (in person) I V Knight (2nd, 6th, 7th, 9th Defs) Australian Government Solicitor (3rd, 4th, 15th, 16th, Defs) Makinson & d'Apice (10th - 14th Defs) Blake Dawson Waldron (17th Def)
CATCHWORDS:	Application of Supreme Court (Summary Jurisdiction) Act - whether offences capable of prosecution in the summary jurisdiction of the Supreme Court - indictable offences - summary offences - exercise of Federal jurisdiction by State courts.
LEGISLATION CITED:	Supreme Court (Summary Jurisdiction) Act 1967 Judiciary Act 1903 (Cth) Family Law Act 1975 (Cth) Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Children (Care and Protection) Act 1987 (NSW) Family Law (Child Abduction Convention) Regulations 1996, reg 14 Acts Interpretation Act 1901 (Cth)
CASES CITED:	Oliver Markisic & Anor v Commonwealth (2000) 49 NSWLR 321 Solomons v District Court of New South Wales & Ors [2000] NSWCA 99 Maguire v Simpson (1977) 139 CLR 362 Munday v Gill (1930) 44 CLR 38 Re Colina; Ex Parte Torney (1999) 200 CLR 386 Porter v The King; Ex Parte Yee (1926) 37 CLR 432 R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 R v Mills [1986] VR 179
DECISION:	See para 71

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

FRIDAY, 14 DECEMBER 2001

125823/01 - MARKISIC & ANOR v VIZZA & ORS

Judgment

1 HIS HONOUR: The First and Second Prosecutors, Oliver and Dragan Markisic, (“the prosecutors”) by an amended summons, filed 7 September 2001, seek orders under the Supreme Court (Summary Jurisdiction) Act 1967, that the First to the Seventeenth Defendants be dealt with for various alleged offences. The offences include, but are not limited to, offences under the following Commonwealth and State statutes: the Family Law Act 1975 (Cth), the Crimes Act 1914 (Cth), the Crimes Act 1900 (NSW) and the Children (Care and Protection) Act 1987 (NSW).

2 The defendants named are: First Defendant Ms Gina Vizza, Second Defendant Ms Doreen Muirhead, Third Defendant Ms Nan Levett, Fourth Defendant Mr John McGinness, Fifth Defendant Mr Tim McDonald, Sixth Defendant Mr Charlie White, Seventh Defendant Mrs Lily Anthony, Eighth Defendant Ms Robbie Flohm, Ninth Defendant Mr Mark Twohill, Tenth Defendant Centacare P/L, Eleventh Defendant Ms Helen O’Brien, Twelfth Defendant Mr Jan Robertson, Thirteenth Defendant Mrs Christine Robertson, Fourteenth Defendant Mr Mike Robertson, Fifteenth Defendant Ms Jenny Hurst, Sixteenth Defendant Ms Alison Bareet, and the Seventeenth Defendant Qantas Airways Limited. They fall into the following categories: officers of the Department of Community Services, officers of the Commonwealth Attorney General’s Department, Centacare workers and foster carers, a barrister, officers of the Crown Solicitors, officers of the Australian Federal Police, and the airline corporation, Qantas.

3 The defendants are alleged to have played a part, at different times, in events associated with Family Court proceedings. A full history of those proceedings may be found in the judgment of Master Harrison in the matter of Oliver Markisic & Anor v Commonwealth [2001] NSWSC 533.

4 The second prosecutor, Dragan Markisic, brought his daughter, Elena Markisic (“the child”), from Macedonia to Australia in 1998. On 10 May 1998 the Republic of Macedonia requested that the Australian authorities take steps to have the child returned to her mother, the second prosecutor’s then wife, Katerina Markisic who was living in Macedonia. Proceedings were instituted by the Department of Community Services in the Family Court of Australia against the second prosecutor pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1996.

5 On 28 July 1998 the Family Court, in proceedings between the second prosecutor and the Department of Community Services, made various orders including that the child not be removed from Australia until further order of the Court; that the second prosecutor surrender passports relating to himself and the child to the Court, and that the names of the second prosecutor and the child be placed upon the Airport Watch List at all International Airport Terminals within Australia.

6 After the second prosecutor was served with these court orders, he appeared in the Family Court before Rowlands J and subsequently the Full Court. The court made an order that the child remain in the care of the Department of Community Services pending her return to Macedonia.

7 On 29 September 1998 the Full Court of the Family Court delivered judgment in the appeal. The Full Court issued a warrant to take possession of the child and dismissed the second prosecutor’s appeal against the decision of Rowlands J.

8 In order to protect the child from being removed from Australia by the second prosecutor, the court issued a warrant authorising and directing officers of the Australian Federal Police to take possession of the child and to deliver the child to the Department of Community Services. The order was to take effect forthwith. The Australian Federal Police executed the warrant on 29 September 1998. The child was delivered to an officer of the Department of Community Services who subsequently handed the child over to the case officer who took the child to the nominated foster parents.

9 On 13 October 1998 the plaintiff’s application for the stay of the decision of Rowlands J was dismissed by the High Court. On 14 October 1998, the child Elena Markisic and her mother returned to Macedonia on a Qantas flight.

10 By Notice of Motion, filed 5 November 2001, the Second, Sixth, Seventh and Ninth Defendants seek that the prosecutor’s Amended Summons be struck out on the grounds that it constitutes an abuse of process. It is submitted that this Court is not the appropriate forum for the proceedings. The Second, Sixth, Seventh and Ninth Defendants also seek that the prosecutors pay their costs. By Notice of Motion, filed 5 November 2001, the Third, Fourth, Fifteenth and Sixteenth Defendants also seek that the Amended Summons be struck out and that the prosecutors pay their costs. Also by Notice of Motion filed on 7 November 2001, the Tenth to Fourteenth Defendants inclusive seek that the Summons and the Amended Summons be struck out on the basis that this Court has no jurisdiction to hear the matters pleaded. Alternatively the Tenth to Fourteenth Defendants inclusive seek that the Summons and the Amended Summons be struck out under Part 15 Rule 26 of the Supreme Court Rules it being submitted that it discloses no cause of action; and has a tendency to cause embarrassment; and or that it is otherwise an abuse of process. The Tenth to the Fourteenth Defendants also seek that the prosecutors pay their costs.

11 By a further Notice of Motion the Seventeenth Defendant moved that the proceedings against it also be struck out. It submitted that this Court has no jurisdiction under the Supreme Court (Summary Jurisdiction) Act 1967 to entertain the charges against it alleged in paragraphs 1 (a), 1(b) and 1(n) of the summons.

The summary jurisdiction of the Supreme Court.

12 The summary jurisdiction of the Supreme Court is provided by the Supreme Court (Summary Jurisdiction) Act 1967.

13 Section 3 (1) of the Act provides:

“Where, under any Act, proceedings for an offence may be taken before the Court in its summary jurisdiction, the Court shall have jurisdiction to hear and determine those proceedings in a summary manner.”

14 Subsection 3 (2) provides:

“The summary jurisdiction conferred on the Court by subsection 1 of this section shall be exercised by a Judge sitting alone, and not otherwise.”

15 Section 4(1) of the Act provides:

“Upon an application being made by any person (in this Act referred to as the “prosecutor”) in accordance with the rules, a Judge shall make an order –
(a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or
(b) ordering the apprehension of any such person for the purpose of the person’s being brought before a Judge to answer to the offence charged in the order.

16 The proceedings that may be taken before this Court in its summary jurisdiction are provided by ss 475A and 475B together with Schedule 10 of the Crimes Act 1900 (NSW).

17 Section 475A provides:

(1) Subject to subsection (2) and section 475B but notwithstanding any other law, proceedings for any offence mentioned in the Tenth Schedule may, pursuant to an application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction.
(2) Proceedings for an offence mentioned in paragraph (f) of the Tenth Schedule may not be taken under subsection (1) unless, in the application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 in respect of the offence, the person against whom the offence is charged is also charged with an offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule.
(3) A person may be convicted of an offence mentioned in paragraph (f) of the Tenth Schedule notwithstanding that the person is not convicted of the offence mentioned in paragraph (a), (b), (c), (d), (d1) or (e) of that Schedule that was also charged in the application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 in respect of the offence mentioned in paragraph (e) of that Schedule.
(4) The penalty that may be imposed by the Supreme Court in its summary jurisdiction on a person convicted of an offence mentioned in the Tenth Schedule is the penalty provided by law (other than this subsection), except that any fine imposed shall not exceed 100 penalty units and any term of imprisonment imposed shall not exceed 10 years, whether the penalty imposed is either a fine or a term of imprisonment.
(5) Subsection (1) does not prevent proceedings for any offence referred to in that subsection from being taken otherwise than before the Supreme Court in its summary jurisdiction.
(6) The reference in subsection (1) to the Attorney-General or the Director of Public Prosecutions includes, in relation to any proceedings, a reference to any person who is authorised in writing by the Attorney-General or Director to act, for the purposes of that subsection, on behalf of the Attorney-General or Director in relation to those proceedings as in relation to proceedings for all offences mentioned in the Tenth Schedule.
(7) A document purporting to be signed:
(a) by the Attorney-General or the Director of Public Prosecutions and to authorise a person specified in the document to act as referred to in subsection (6) is, in any proceedings referred to in subsection (1), admissible in evidence as prima facie evidence that the person is authorised so to act, or
(b) by the Attorney-General or the Director of Public Prosecutions for the purpose of any proceedings referred to in subsection (1) is admissible in evidence as prima facie evidence that the Attorney-General or the Director of Public Prosecutions signed the document.

18 Section 475B provides:

(1) Section 475A (1) applies only if, upon the completion of the pre-trial procedures in any proceedings in respect of an offence to which an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relates, being procedures prescribed by rules made under that Act, the defendant makes an election to be tried for that offence in the Supreme Court in its summary jurisdiction.
(2) Notwithstanding subsection (1) where the defendant in any proceedings is the subject of an application (not being an application referred to in subsection (3)), under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relating to 2 or more offences, he or she is not entitled to make an election under subsection (1) unless he or she makes it in respect of every offence to which the application relates.
(3) Where 2 or more defendants are the subject of an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 , an election under subsection (1) made by one of the defendants in respect of any offence to which the application relates and alleged to have been committed by him or her has no effect for the purposes of this section unless such an election is made by that defendant in respect of every other offence to which the application relates and which is alleged to have been committed by him or her and by each of the other defendants in respect of every offence to which the application relates and which is alleged to have been committed by each of them.
(4) A reference in subsection (1), (2) or (3) to an offence to which an application under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 relates does not include a reference to such an offence to which the person charged with the offence has, upon such an application, pleaded guilty.
(5) Where the defendant does not make an election under subsection (1):
(a) the Supreme Court shall order that the proceedings for the offence to which the election relates shall be tried in the Supreme Court otherwise than in its summary jurisdiction, and
(b) the provisions of section 475A (1) shall cease to apply to or in respect of the proceedings for that offence.
(6) A person tried pursuant to an order under subsection (5) (a) shall for all purposes, be deemed to be tried on indictment and if convicted to have been convicted on indictment.
(7) A reference in this section to a plea of guilty does not include a reference to such a plea if the plea has been withdrawn or has not been accepted.

19 Schedule 10 of the Act provides:

1. Offences punishable by the Supreme Court in its summary jurisdiction
(a) any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under, section 173, 174, 175, 176, 176A or 179 of this Act; any offence arising under section 185A (1) or (2) of this Act; the common law offence of attempting to commit any offence arising under section 185A(1) of this Act.
(b) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 124, 374A (1) or (3), 374B, 374C (2), 374G, 375 (2), 375A or 376 (2) of the Companies Act 1961.
(c) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 14 (1), 27, 59 (7), 109 (1) or (2), 110, 111, 112 (1), (2), (3), (4), (5), (6) or 121 (1) of the Securities Industry Act 1975.
(d) Any offence arising under, or the common law offence of attempting, or conspiracy, to commit any offence arising under, section 70, 71 (1) or (3), 72 (1) or 73 of the Securities Industry Act 1970.
(d1) Any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under:
(i) section 37 (1), 73 (7), 124 (1) or (2), 125, 126, 128 (1), (2), (3), (4), (5) or (6) or 137 of the Securities Industry (New South Wales) Code, or
(ii) section 16(1) of the National Companies and Securities (State Provisions) Act 1981.
(e) The common law offence of conspiracy to cheat and defraud.
(f ) Subject to section 475A(2) of this Act, any offence arising under, or the common law offence of attempting, or of conspiracy, to commit any offence arising under:
(i) section 165, 168, 169, 170, 172, 178A, 178BA, 178BB, 178C, 184A, 185, 327, 330 or 335 of this Act,
(ii) section 47(1), 51 (3), 64 (10), 86 (1), 163 (1) (being an offence committed as referred to in section 163 (3)), 179A (1), 180J (1) or (1A),180W or 374F (1) or (2) of the Companies Act 1961,
(iii) section 12 (6), 25 (1), 54 (1) or 58 (1), (2), (3), or (4) of the Securities Industry Act 1975,
(iv) section 14(6), 34(1), 68 (1) or 72 (1), (2), (3) or (4) of the Securities Industry (New South Wales) Code,
(v) section 44 or 53 of the Companies (Acquisition of Shares) (New South Wales) Code, or
(vi) section 108 (1), 123 (11), 174 (1), 276 (1) (being an offence committed as referred to in section 276 (1)(b)), 310 (1, 559 or 560 of the Companies (New South Wales) Codes.

20 None of the offences alleged in the current proceedings are within Schedule 10. Furthermore no other legislation provides that these matters may be prosecuted summarily in the Supreme Court.

21 Provision is made in the Criminal Procedure Act 1986 (NSW) for offences to be disposed of summarily or by indictment. Certain offences must be dealt with on indictment unless they are permitted, or required, under the Act, or any other Act, to be dealt with summarily: ss 7, 10 and 11. An offence that is permitted, or required, to be dealt with summarily, is to be dealt with “by a Local Court constituted by a Magistrate sitting alone”: s 9. Various indictable offences are to be dealt with summarily unless the prosecutor, or the person charged, elect to have the offence dealt with on indictment, these offences are currently known as “Table 1” offences: s20 (1), Table 1 to Schedule 1. Various indictable offences are to be dealt with summarily unless the prosecutor elects to have the offence dealt with on indictment, these offences are currently known as “Table 2” offences: s 20 (2), Table 2 to Schedule 1.

22 Accordingly there is no jurisdiction in this Court to entertain the proceedings and the defendants are entitled to the relief they seek.

23 Some of the offences charged are alleged breaches of Commonwealth laws. Others are alleged breaches of State laws.

Commonwealth laws

24 Sections 39(2) and 68(2) of the Judiciary Act 1903 (Cth) provide for federal jurisdiction to be exercised by State courts. Presently relevant is s 68 (2) which provides:

“(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) a summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings concerned therewith, shall subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.”

25 Accordingly s 68(2) operates to confer on this Court, and other State and Territory Courts, “like jurisdiction” with respect to Commonwealth offences. Sections 68(1) and 79 of the Judiciary Act 1903 (Cth) “incorporate State enactments by reference and cause them to become, for the purpose of the exercise of federal jurisdiction,’ surrogate Commonwealth law’”: Mason P in Solomons v District Court of New South Wales & Ors (2000) 49 NSWLR 321 at 324 quoting Murphy J in Maguire v Simpson (1977) 139 CLR 362 at 408. Accordingly regard must be had to any provisions of the relevant Commonwealth Act creating the offence to ascertain whether it provides for summary disposal of the matter.

26 The Crimes Act 1914 (Cth) creates the framework for determining whether an offence against a Commonwealth law is either “summary” or “indictable”, and how indictable offences may be dealt with summarily: ss 4G, 4H and 4J. An offence against a Commonwealth law punishable by fine only, or by imprisonment for a period not exceeding 12 months, is a summary offence: s 4H. All other matters are indictable offences: s 4G. An indictable offence against a Commonwealth law, being punishable by imprisonment for a period not exceeding 10 years, may be heard and determined “by a court of summary jurisdiction” but only with the consent of the prosecutor and defendant: s 4J. The consequence of the framework provided by the Crimes Act 1914 is that unless the Act imposing the liability makes a specific provision to the contrary, an indictable offence against a law of the Commonwealth may only be heard and determined by a “court of summary jurisdiction” with the consent of the prosecutor and the defendant: s 4J. The Supreme Court is not relevantly a “court of summary jurisdiction,” a matter discussed below.

27 The significance of the different procedures for the prosecution and hearing of summary and indictable offences has long been recognised by the law. In Munday v Gill (1930) 44 CLR 38 at 86 Dixon J said:

“There is, however a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the bar of the Court ‘in his own proper person and being demanded concerning the premises in the indictment specified and charged upon him how he will acquit himself upon the Country and he who prosecutes for our Lord the King doth like.’ In the other the defendant is given sufficient opportunity to appear which (unless he be in custody because it is considered that he will abscond) he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is to dealt with by those assigned to keep the peace, who judge both law and fact. ‘There is’ says Blackstone, ‘no intervention of a jury, but the party accused is acquited or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice’ (4 Comm. 280).”

28 Unless provided for by statute an alleged offence may not be prosecuted summarily.

Breaches of the Family Law Act 1975 (Cth)

29 Section 65Z, Division 6 of Sub-Division E of Part VII of the Family Law Act provides:

“(1) If proceedings (the Part VII proceedings) for the making of a residence, contact or care order are pending, a person who is a party to the proceeding, or who is acting on behalf of, or at the request of a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).
Penalty: Imprisonment for 3 years.
(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each party to the Part VII proceedings; or
(b) it is done in accordance with an order of a court made, under this part or under a law of a State or Territory, after the institution of the part VII proceedings.”

30 Division 12 of Part VII of the Family Law Act provides for the jurisdiction of the court, the institution of proceedings, and relevant procedures. Under s 69B(1) proceedings that may be commenced under Part VII must not be instituted otherwise than under that Part.

31 Section 41 falls within Part V of the Act and provides for the establishment of State Family Courts. By s 69H jurisdiction is expressly conferred, in relation to matters arising under Part VII, on the Family Court, State Family Courts, and the Northern Territory Supreme Court.

32 When the Family Law Act commenced in 1976, jurisdiction was conferred on the Supreme Court, for transitional purposes, in respect of certain matters concerning “matrimonial causes.” This jurisdiction ended with proclamations made, in accordance with the Act, on 27 May 1976 and 23 November 1983: see ss 39(5) and 40(3).

33 By the operation of s 69J (1), “each court of summary jurisdiction” is invested with jurisdiction to entertain matters arising under Part VII of the Act. Section 26 of the Acts Interpretation Act 1901 (Cth), provides, for the purpose of Commonwealth legislation, that a “court of summary jurisdiction” shall mean:

“any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act.”


The Supreme Court is not relevantly a court of summary jurisdiction.

Contempt

34 Section 112AP, the contempt provision of the Family Law Act 1975 (Cth), provides:

“(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.”

35 As observed by Gleeson CJ and Gummow J in Re Colina; Ex Parte Torney (1999) 200 CLR 386 at 395, “The power to deal with contempt is, to use Isaac’s phrase ’inherent’ and is ‘a power of self-protection or a power incidental to the function of superintending the administration of justice [their Honours referring to Porter v the King; Ex parte Yee (1926) 37 CLR 432 at 443, and also R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 257].” As a superior court of record, the Supreme Court has supervisory jurisdiction to try, and to punish, contempts affecting inferior courts within this State: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351. Section 112AP (2) provides that “a court having jurisdiction under this Act may punish a person for contempt of that Court.” The Supreme Court does not have jurisdiction under the Family Law Act and accordingly does not have jurisdiction to deal with contempt of the Family Court.

The charges as set out in the amended summons

36 By paragraph (2) of the amended summons, the prosecutors seek an order that the defendants be dealt with for commission of the alleged offences set out in paragraphs (1) (a) through to 1(q) of the amended summons. As I have already indicated the proceedings cannot be brought in the Supreme Court unless a statute provides that the offence may be prosecuted in the Court’s summary jurisdiction.

Charge 1 (a)

37 Under charge 1 (a) the prosecutors seek an order that the first to the seventeenth defendants answer to the charge that they, “executed, aided, abetted, counselled, procured, incited or urged taking or sending of the child Elena Markisic…out of Australia, in commission of an offence under the Family Law Act Part VII Section 65Z. ”

38 The penalty for a breach of s 65Z is imprisonment for 3 years. Accordingly the offence may only be tried by indictment and may not be prosecuted summarily: s 4G Crimes Act 1914 (Cth). In any event only courts of summary jurisdiction in each State are provided with federal jurisdiction by s 69J of the Family Law Act. The Supreme Court does not have jurisdiction in this matter.

Charge 1 (b)

39 Under charge 1 (b) the prosecutors seek an order that the first to the seventeenth defendants answer to the charge that, “while the Part VII proceedings for final custody order were pending in the Family Court of Australia, [the defendants] conspired with each other to take or send the child…out of Australia.”

40 The prosecutors allege a “conspiracy” by reason of the removal of the child, but do not specify a conspiracy to commit a specific criminal act, and do not describe the alleged conspiracy as arising under a statute or at common law. At common law a criminal conspiracy cannot be tried summarily, even if the offence the subject of the conspiracy is a summary offence: R v Mills [1986] VR 179. It may be the alleged conspiracy is related to the offence alleged by way of a breach of s 65Z of the Family Law Act or contempt of the Family Court. Contempt of court is not, however, an offence against the law of the Commonwealth: see Re Colina at 395 per Gleeson CJ and Gummow J; at 428 - 429 per Hayne J.

41 Section 86 (1) of the Crimes Act 1914 (Cth) provides that a person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. However as the offence carries a term of imprisonment of more than 12 months it is an indictable offence: s 4G. Furthermore pursuant to s 86 (9) proceedings for the offence of conspiracy “must not be commenced without the consent of the Director of Public Prosecutions”, and such consent is not apparent in these proceedings.

42 This Court has no jurisdiction to consider this charge.

Charge 1 (c)

43 Under charge 1 (c) the prosecutors seek an order that the first to the ninth defendants answer to charges pursuant to ss 42 and 43 and Crimes Act 1914 (Cth), and s 319 of the Crimes Act 1900 (NSW).

44 Section 42(1) of the Crimes Act 1914 (Cth) provides:

“Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence.”

45 Section 43(1) of the Crimes Act 1914 (Cth) provides:

“Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.”

46 Sections 42 and 43 each provide for a penalty of 5 years imprisonment. As already noted, under the Crimes Act 1914 (Cth), offences punishable by a period exceeding 12 months are indictable offences: s4G. Indictable offences, carrying a penalty of less than 10 years imprisonment, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction: s 4J. Accordingly the offences are indictable. Even if the Supreme Court was a “court of summary jurisdiction,” the defendants have not consented to summary determination of the allegations, and this Court does not have jurisdiction to consider the alleged offences under ss 42 and 43 of the Crimes Act 1914 (Cth).

47 Section 319 of the Crimes Act 1900 (NSW) provides that “a person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.” The offence is not included in Schedule 10 and accordingly may not be tried summarily in the Supreme Court.

Charge 1 (d)

48 Under charge 1 (d), the prosecutors seek an order that the first, third, fourth, fifteenth and sixteenth defendants answer to a charge for a breach of s 76C of the Crimes Act 1914 (Cth).

49 Section 76C provides:

“A person who intentionally and without authority:
(a) destroys, erases or alters data stored in, or inserts data into, a Commonwealth computer;
(b) interferes with, or interrupts or obstructs the lawful use of, a Commonwealth computer;
(c) destroys, erases, alters or adds to data stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer; or
(d) impedes or prevents access to, or impairs the usefulness or effectiveness of, data stored in a Commonwealth computer or data stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer;
is guilty of an offence.

50 The penalty provided by s 76C is 10 years imprisonment. Accordingly it is an indictable offence: s 4G Crimes Act 1914 (Cth). This

Court does not have jurisdiction to deal with the matter.

Charge 1 (e)

51 Under charge 1 (e) the prosecutors seek an order that the first, second, third, fourth, fifth, sixth, seventh, tenth, thirteenth, and fourteenth defendants answer to a charge under s 27(1)(a) and (b) of the Children (Care and Protection) Act 1987 (NSW) and s 91 Crimes Act 1900 (NSW).

52 There is no penalty expressly provided for a breach of s 27. However s 120 of the Act provides that a person who is guilty of an offence under the Act is “liable to a penalty not exceeding the penalty expressly imposed or, if no penalty is expressly imposed, to a penalty not exceeding 10 penalty units or imprisonment for a period not exceeding 12 months or both.” Under s 121(1) of the Act, except as provided for by subsection 121 (2), proceedings for an offence against that Act or its regulations, “shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.” Subsection 121(2) provides that Division 3 of Part 2 of the Criminal Procedure Act 1986 (which deals with the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under s 20B (1) of the Children (Care and Protection) Act 1987. As proceedings for offences against the Children (Care and Protection) Act 1987 are to be dealt with summarily by a magistrate in the Local Court (s 121), this Court has no jurisdiction to consider any offences alleged under that Act.

53 Section 91 of the Crimes Act 1900 provides:

“Whosoever:
by force or fraud, leads or takes away, entices away, or detains, any child under the age of twelve years, with intent to deprive any person having the lawful charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong, or receives or harbours any such child, knowing such child to have been so led, taken, enticed away, or detained,
shall be liable to imprisonment for ten years:

Provided that this section shall not extend to any person who shall, in good faith, have claimed a right to the possession of such child.”

54 Section 91 is not found within Schedule 10. A breach of s 91 is to be dealt with by the Local Court, unless an election is made, and ultimately tried by indictment: ss 20, 22 – 26 Criminal Procedure Act 1986 (NSW). This Court does not have summary jurisdiction to entertain this charge.

Charge 1 (f)

55 Under charge 1 (f) the prosecutors seek an order that the first to the fourteenth defendants answer to an alleged offence under s 25 of the Children (Care and Protection) Act 1987. As I have already indicated proceedings for offences against the Children (Care and Protection) Act 1987 are to be dealt with summarily by a magistrate in the Local Court: s 121. Accordingly this Court has no jurisdiction to consider this charge.

Charge 1 (g)

56 Under charge 1 (g) the prosecutors seek an order that the fifth, sixth, seventh, eleventh, twelfth, thirteenth and fourteenth defendants answer to the offence that they “aided, abetted, counseled, procured, incited, or urged the child to be neglected…in commission of offences under Children (Care and Protection) Act 1987, section 26 and Crimes Act 1900, section 44.”

57 As already indicated proceedings for offences against the Children (Care and Protection) Act 1987 are to be dealt with summarily by a magistrate in the Local Court (s 121), and this Court has no jurisdiction to consider this charge.

58 Section 44 of the Crimes Act 1900 provides:

“Whosoever:
being legally liable to provide any wife, child, ward, apprentice, or servant or any insane person with necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or
maliciously does, or causes to be done, any bodily harm to any wife, child, ward, apprentice or servant, or to any insane person
so that, in any such case, his or her life is endangered, or his or her health becomes or is likely to be seriously injured,
shall be liable to imprisonment for five years.”

59 An offence against s 44 is a Table 1 offence, as such it is to be dealt with by the Local Court, unless an election is made for trial by indictment: s 20 Criminal Procedure Act 1986 (NSW). The offence is not listed in Schedule 10 and accordingly this Court is not conferred with summary jurisdiction to consider this charge.

Charges 1 (h), (i), (j), (k), (l) and (m)

60 Under charges 1(h), (i), (j) and (m) the prosecutors seek an order that the first to the fourteenth defendants inclusive answer to alleged offences under ss 117, 118, 119 and 22(4) of the Children (Care and Protection) Act 1987. Under charge 1 (k) the prosecutors seek an order that the first, second, third, fourth, fifth, sixth, seventh, and tenth defendants answer to the offence under “Children (Care and Protection) Regulation 1987, section 54(1)[sic].” Under charge 1 (l) the prosecutors seek an order that the first to the twelfth defendants answer an alleged offence under “Children (Care and Protection) Regulation 1987, section 58.”

61 It was submitted, correctly, by the second, sixth, seventh and ninth defendants that there is no “s 54 (1)” of the Children (Care and Protection) Regulation 1987. It may be that the prosecutors intended to make reference to clause 54 of the Children (Care and Protection) Regulation 1996, which is headed “Placement of children” and provides:

“(1) An agency [meaning an authorised private fostering agency, cl 4] must not place a child in foster care otherwise than:
(a) at the written request of a person who is entitled to the custody of the child, or
(b) at the written request of the Director-General, or
(c) in accordance with an order made by a court having jurisdiction to make orders with respect to the care and custody of children.

Maximum penalty: 5 penalty units. “

62 As with charge 1(k), it was submitted, correctly, by the second, sixth, seventh and ninth defendants that there is no “Children (Care and Protection) Regulation 1987, section 58.” It may be that the prosecutors intended to make reference to clause 58 of the Children (Care and Protection) Regulation 1996, which is headed “Visits and communication” and provides:

“ The principal officer of an agency must:
(a) encourage visits to each child by the child's parents, relatives and friends, and
(b) encourage communication (whether by letter, telephone or otherwise) between each child and the child's parents, relatives and friends,

except where to do so would be in contravention of any order of a court having jurisdiction to restrict or prohibit such visits or communications or would, in the opinion of the principal officer, be detrimental to the welfare and interests of the child.
Maximum penalty: 5 penalty units.”

63 As I have already indicated, proceedings for offences under the Children (Care and Protection) Act 1987, or its regulations, are to be dealt with summarily before a magistrate in the Local Court (s 121). This Court is not given jurisdiction to consider charges 1 (h), (i), (j), (k), (l) and (m).

Charges 1 (n), (o) and (p)

64 Under charges 1 (n), (o) and (p) the prosecutors seek an order that the first to the seventeenth defendants answer to alleged offences under ss 112AD and 112AP of the Family Law Act 1975 (Cth).

65 Section 112AD of the Family Law Act 1975 provides:

“(1) If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances. “

66 The power to make an order under ss 112AD and 112AP is confined to a court having jurisdiction under the Family Law Act. As the Supreme Court does not have jurisdiction under that Act this Court cannot entertain charges 1 (n), (o) and (p).

Charge 1 (q)

67 Under charge 1 (q) the Prosecutors seek an order that the seventh defendant answer to the offence being, “to mislead other public officers or users of the DOCS’s computer system made an entry in the DOC’s computer system, knowing the entry to be false or misleading in a material particular, in commission of an offence under the Crime Act 1900, section 336(2).”

68 Section 336(2) of the Crimes Act 1900 (NSW) is not referred to in Schedule 10 and a breach of it is to be dealt with summarily by a magistrate in the Local Court unless an election is made for trial by indictment: s 20 Criminal Procedure Act 1986. This Court does not have jurisdiction to consider this charge.

Conclusion

69 For the reasons stated above, the summary jurisdiction of the Supreme Court is not enlivened by any of the offences which the prosecutors have set out in the amended summons, paragraphs 1(a) through to 1(q). Accordingly the amended summons is struck out.

70 It is apparent that there may be a number of other defects in the charges sought to be brought. However these matters were not argued and it is not appropriate to deal with them.

71 The orders of the court are:

(1) The Amended Summons is struck out;
(2) Order the first and second prosecutors to pay the defendants costs.
**********

Last Modified: 12/24/2001