Mattner v Director of Public Prosecutions (Cth)
[2011] SASC 89
•25 May 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MATTNER v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2011] SASC 89
Judgment of The Honourable Justice Kelly
25 May 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - STATE CONSTITUTIONS, POWERS AND LAWS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - SUBJECT MATTER - SUMMARY TRIAL OF INDICTABLE OFFENCES
JURY - ENTITLEMENT TO TRIAL BY JURY
Application for withdrawal of notice of discontinuance of appeal against conviction recorded in the Magistrates Court – applicant convicted of four counts of misuse of a carriage service contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) – applicant filed notice of appeal and subsequent notice of discontinuance on advice from senior counsel – applicant sought extension of time within which to file further grounds of appeal – s 4J of the Crimes Act 1914 (Cth) provides for summary disposition of indictable offences with the consent of prosecution and defendant – applicant unrepresented at the trial – whether s 4J of the Crimes Act 1914 (Cth) inconsistent with s 80 of the Constitution – whether applicant properly consented to summary determination.
Held: Applicant to withdraw notice of discontinuance allowed – extension of time to file amended grounds of appeal permitted – appeal allowed – constitutional validity of s 4J of the Crimes Act 1914 (Cth) has been settled by the High Court – indictable offences charged did not proceed to trial n indictment – no evidence that applicant made an informed choice about whether to consent to summary determination – applicant effectively deprived of her right to trial by jury –no substantial delay in applying for withdrawal of notice of discontinuance.
Criminal Code Act 1995 (Cth) s 474.17(1); Crimes Regulations 1990 (Cth); Supreme Court Civil Rules 2006 (SA) r 4 and r 117; Supreme Court Act 1935 (SA) s 39; Commonwealth of Australia Constitution Act (Cth) s 80; Crimes Act 1914 (Cth) s 4J, s 12, s 12A and s 30K, referred to.
R v Brain (1999) 74 SASR 92; R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 ; Kingswell v The Queen (1985) 159 CLR 264; Cheng v The Queen (2000) 203 CLR 248, discussed.
Garrett v Mildara Blass Ltd; Attorney-General for the State of South Australia v Garrett [2009] SASC 19; Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd (2009) 261 LSJS 434; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Attorney-General for the State of Victoria v Weston [2004] VSC 314; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v Attorney-General (Cth) (1954) 94 CLR 86; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182; Brown v The Queen (1986) 160 CLR 171, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"indictable offence", "trial on indictment"
MATTNER v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2011] SASC 89Magistrates Appeal
KELLY J.
In this matter the applicant Ms Mattner sought to withdraw a notice of discontinuance in respect of an appeal against a conviction recorded in the Elizabeth Magistrates Court on 26 August 2010. If successful in respect of the application to withdraw the notice of discontinuance, the applicant proposes to argue four grounds of appeal identified in a proposed amended notice of appeal filed in this Court on 7 March 2011.
The history of this matter is not without its complications. Since the applicant was arrested on 2 April 2009 she has, for significant periods of time, been unrepresented. That factor has not only added to the complications but is of central significance to my conclusion in this matter which is, that the applicant should be permitted to withdraw the notice of discontinuance and that the applicant succeeds in relation to one ground of appeal.
Background
On 2 April 2009 the applicant was arrested and charged with four counts of using a carriage service in such a way that a reasonable person would regard that use as being menacing, harassing or offensive contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).
The applicant was initially represented by Vadasz Lawyers who corresponded with the SAPOL Elizabeth Criminal Justice Section and the respondent on 9 April 2009 and 14 May 2009 respectively requesting information from the prosecution concerning the information and the allegations and requesting certain documents and video and audio material.
In the first of these letters the lawyers advised that since her arrest the applicant had been suspended from her employment and it was therefore a matter of concern that the charges be prosecuted without delay. In the second communication the lawyers reiterated that although the applicant had since returned to work under supervision it was a matter of concern that the charges be prosecuted without delay.
The matter first came before the Elizabeth Magistrates Court on 12 May 2009 when the matter appears to have been simply adjourned to 14 July 2009 for further hearing.
Meanwhile on 19 June 2009 Rosey Batt & Associates lawyers wrote to the respondent indicating that they now had instructions to represent the applicant and requested a copy of the information and apprehension report.
By correspondence dated 22 June 2009 the respondent replied by enclosing certain material that had been requested and indicated that the respondent would be laying a new information with respect to each victim before the next court date. That duly occurred and on 10 July 2009 the respondent sent the new information together with other material requested to the applicant’s then solicitors. The respondent says that attached to the three count information was a notice to the applicant in which the respondent advised that it consented to the matter being heard and determined by a court of summary jurisdiction. The terms of that notice are quite important and are set out in full below:
DPP
Commonwealth Director of Public Prosecutions
Adelaide Office
NOTICE TO DEFENDANT
MICHELLE MATTNER
THE PROSECUTION DOES CONSENT TO SUMMARY DETERMINATION
Section 4J of the Crimes Act (Commonwealth) provides:
“Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, 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.”
The Commonwealth Director of Public Prosecutions does consent to this matter being heard and determined by a Court of Summary Jurisdiction.
[Emphasis in original]
The notice was signed by Ms Propsting on behalf of the respondent.
On 13 July 2009 the new solicitors advised by telephone that they no longer had instructions to act and by the second court date on 14 July 2009 the applicant was unrepresented. Thereafter the applicant remained unrepresented until after conviction and sentence.
The matter was listed for mention in the Magistrates Court again on 8 September 2009 and on 13 October 2009 there was a pre‑trial conference by which the trial was listed to commence on 18 February 2010. It appears that all which occurred during the hearings on 14 July and 8 September was that the applicant informed the court that she was hoping to get another lawyer and trying to arrange one.
The applicant sent two letters on 16 October 2009 and 28 October 2009 requesting certain information. On 2 November 2009 the respondent filed a fresh information containing four counts. The respondent says that at a further hearing in the Magistrates Court on 4 November 2009, it provided that information to the applicant, together with another “Notice to Defendant” in which the respondent advised that it consented to the matter being heard and determined summarily.
At the 4 November 2009 hearing, the trial date of 18 February 2010 was vacated. That hearing was followed by the applicant’s request for further material. On the next mention date which was 12 January 2010 an amendment was made to the information. The amendment was minor and related to the timing of some calls alleged in counts 2 and 3 of the information.
Ms Propsting informed the Court on the hearing of the appeal that it has been the practice of the Adelaide office of the respondent for a considerable number of years to attach a “Notice to Defendant” to an information before the document is filed in court and serve it upon defendants. Although the document is not in any form prescribed by the Crimes Regulations 1990 (the Regulations do not prescribe any form), nevertheless the document advises the court and the defendant of the respondent’s intentions with respect to dealing with an indictable matter.
Neither the trial transcript nor any of the records of the Elizabeth Magistrates Court refer to any discussion regarding the election by the prosecution or the applicant for summary determination of the matter. Upon the hearing of this appeal I requested and received a detailed report from Mr Field SM. Mr Field was the Magistrate who ultimately heard the trial, however it should be noted that a number of other magistrates (five in all) presided at various stages throughout the pre‑trial process. There is no endorsement on the file which makes any reference to consent under s 4J of the Crimes Act 1914 (Cth). Mr Field, quite understandably, assumed in light of the pre‑trial conferences which had already been held in the matter, that all preliminary matters had been dealt with. There being no objection by either party to the Magistrate proceeding to hear and determine the matter that is what the Magistrate did.
The trial proceeded on 22 February 2010 and was adjourned to continue on 20 May, 21 May and then 27 May 2010. On 26 August 2010, at the time when the applicant was found guilty by Mr Field, she remained unrepresented. The Magistrate ordered a presentence report and on 8 October 2010 the matter was again listed for sentencing submissions before Mr Field. Mr Michael Woods appeared on that day and indicated he was now acting for the applicant. On that date Mr Woods obtained an adjournment in order to obtain a psychiatric report.
On 7 December 2010 sentencing submissions were heard and the Magistrate then imposed a sentence of imprisonment for 26 months to commence from 7 December 2010. The applicant was released on a bond to be of good behaviour for four years and ordered to pay counsel and court fees.
Meanwhile, on 22 September 2010 the applicant lodged a notice of appeal. In that notice of appeal was an application for an extension of time within which to appeal. The applicant stated that she had instructed solicitors to institute an appeal on 20 September 2010 but previously to that date had been unrepresented.
The initial notice of appeal contained five grounds of appeal however on 15 November 2010 the applicant filed a notice of discontinuance in respect of that appeal notice.
The notice of discontinuance was signed by the applicant and contained the following sentence:
My decision to discontinue with my Supreme Court Appeal has been made of my own free will, without any inducements or pressure, made to me and was made following the advice given to me by Mr. Michael Ronald WOODS and Mrs. Marie SHAW QC.
On 22 December 2010 the applicant, through her current solicitors, filed an interlocutory application in this Court seeking to withdraw the notice of discontinuance filed on 15 November 2010 and seeking to amend the notice of appeal to contain fresh grounds of appeal.
At the time the fresh application was filed, the applicant’s solicitor, Mr Turner, deposed to his belief and instructions that at the time when the applicant had instructed her previous solicitors to discontinue the appeal she was severely stressed, overcome and not coping.
That is a brief summary of the chronology of events which have led to the current application.
The first issue is whether I have the power to permit the applicant to withdraw the notice of discontinuance filed on her behalf on 15 November 2010.
The Court’s power to entertain the application is to be found in r 117 of the Supreme Court Civil Rules 2006 (SA). The rule relevantly states:
117—Power to make orders controlling conduct of litigation
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
Note—
In addition to the powers specifically mentioned in this rule, the Court's powers to enforce compliance with the rules (rule 12) and the Court's powers to penalise procedural irregularities in costs (rule 13) should be noted.
(2)The Court may (for example)—
(a) dispense with compliance with a rule;
(b) extend or reduce the time for taking any step in a proceeding;
(c) fix the time for taking a step in a proceeding if the time is not otherwise fixed;
(d) permit a party to withdraw a pleading or other document;
(e) strike out a document or proceeding if the Court considers it frivolous, vexatious or an abuse of the process of the Court;
(f) require the parties to state issues in a particular way;
Example—
In cases where there may be numerous issues for determination by the Court, the Court may require preparation of a schedule, in tabular form, listing each item for determination by the Court and the contentions of the plaintiff and the defendant in relation to each item (for example, the so-called Scott schedule used in cases of building disputes).
(g) require the parties to prepare a joint or separate statement of the issues in contention between them for the Court's use;
(h) require each party to file in the Court affidavits sworn by the witnesses the party proposes to call at the trial setting out the substance of the evidence the party proposes to adduce from each witness;
(i) require the parties to file in the Court statements of the documents they propose to tender at the trial;
(j) deal with the form in which evidence is to be taken at the trial;
(k) dispense with compliance with the rules of evidence in relation to a particular issue or range of issues;
(l) fix the time and place of trial.
(3)The Court may exercise its power to extend a time limit even though the relevant time limit has already expired.
(4)An order under this rule may vary or revoke an earlier order.
(5)An order under this rule prevails, to the extent of any inconsistency, over any rule relevant to the subject matter of the order.
Rule 117 allows the court to make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice. A “proceeding” is defined in r 4 of the Supreme Court Civil Rules 2006 (SA) to include:
(a)an action, interlocutory proceeding or appellate proceeding; and
(b)any step in an action, interlocutory proceeding or appellate proceeding;
“Appellate proceeding” means an appeal. The question arises whether, once a notice of discontinuance is filed, there is still an “appeal” on foot, in respect of which an order for the proper conduct of the proceeding under r 117(2) can be made.
The meaning of “proceeding” has been considered in the context of s 39 of the Supreme Court Act 1935 (SA). That section allows the court make an order prohibiting a vexatious litigant from instituting further proceedings, or further proceedings of a particular class, without permission of the court. Although the Supreme Court Act defines “proceedings” only as either civil or criminal proceedings, courts have had regard to the definition contained in r 4 of the Supreme Court Civil Rules 2006 (SA).[1] Although the construction of the rules will depend on the purpose of the rule in question,[2] in the context of s 39, “instituting proceedings” has been held to include “seeking to set aside a determination in a matter which is in substance an attempt to appeal or re-litigate a matter otherwise finally determined.”[3]
[1] See eg: Garrett v Mildara Blass Ltd; Attorney-General for the State of South Australia v Garrett [2009] SASC 19 at [119]-[124] (Layton J).
[2] Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd (2009) 261 LSJS 434 at [40]-[42] ( White J, with whom Duggan and Bleby JJ agreed).
[3] Garrett and Anor v Mildara Blass Ltd and Ors; Attorney-General for the State of South Australia v Garrett [2009] SASC 19 at [123]; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [47] (Bleby J), quoting Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [13] (Whelan J).
It could be argued that even if a notice of discontinuance effectively brings an end to the proceedings, its withdrawal is the first step in the revived appellate proceedings.
I do not consider that I need to resolve that question here as I consider it appropriate to proceed on the basis that I can make the order sought if it is necessary to do so in the interests of justice under the second limb of r 117(1).
I accept the respondent’s submission that the onus in this case rests with the applicant to demonstrate that she will suffer a real injustice if the application is refused. In this respect the remarks of Doyle CJ in R v Brain[4] are apposite:
I have come to the conclusion that as the merits of Mr Brain's appeal were not considered at all, and as the order dismissing the appeal is an order for summary dismissal, this Court has an inherent power to revoke that order and to resume the hearing of the appeal. It has power to do that even though the appeal by Mr Brain was finally disposed of. I consider that to recognise this limited exception is not inconsistent with the line of authority to which I have referred. As I have mentioned, I have not found any case dealing with the circumstances now before the Court. I consider that it is consistent with the interests of justice to conclude that the Court has an inherent power of the type identified by me. The power is available for exercise in very limited circumstances. I do not consider that to hold that such a power exists is likely to have consequences that are adverse to the public interest in the due administration of justice.
I do not consider that my conclusion is inconsistent with the cases that hold that an appellant will be permitted to withdraw an abandonment of an appeal only in quite exceptional circumstances. An abandonment of an appeal is, on its face, a deliberate decision by an appellant not to pursue the appeal. In a sense, it can be said to lead to a determination on the merits because the abandonment can be read as an acknowledgment by the appellant that the grounds lack any merit. That being so, it is appropriate that the Court should allow the withdrawal of an abandonment only when there are circumstances affecting the quality of the decision to abandon the appeal. In the present case, there was of course no deliberate decision to abandon the appeal, although the dismissal of the appeal flowed from Mr Brain's failure to attend at the hearing.
[4] R v Brain (1999) 74 SASR 92 at [76]–[77].
The question of whether the applicant will suffer a real injustice if she is not permitted to withdraw the notice of discontinuance, necessitates an examination of the proposed grounds of appeal. Prior to the hearing of the appeal, both parties agreed that the application to withdraw the notice of discontinuance and the appeal itself, if the applicant succeeds on the first application, should be heard together. Accordingly in considering whether the applicant will suffer a real injustice I have considered the merits of the proposed grounds of appeal. In my view it is appropriate to deal with the proposed grounds before deciding whether the applicant should be permitted to withdraw the notice of discontinuance.
Proposed Grounds of Appeal
The proposed grounds of appeal contain three grounds, two of which were not included as part of the five original grounds of appeal in respect of which the notice of discontinuance was filed. The two fresh grounds which were not included in the original grounds are grounds 1 and 2 set out below:
1.Section 80 of the Commonwealth of Australia Constitution Act precludes the Appellant from electing pursuant to section 4J of the Crimes Act (Cth) to have the offences against her to be determined by a Court of Summary Jurisdiction.
2.That the Appellant did not consent to the summary determination of the charges before the Court by a Court of Summary Jurisdiction or in the alternative the Learned Special Magistrate erred in failing to properly advise the Appellant of her rights and then obtain the specific consent of the Appellant to the summary determination of the charges by a Court of Summary Jurisdiction.
Ground 1
Section 80 of the Commonwealth of Australia Constitution Act states:
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Section 4J of the Crimes Act 1914 (Cth) relevantly states:
Certain indictable offences may be dealt with summarily
(1)Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, 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.
(2)Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3)Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a) where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4)A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5)Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):
(a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;
(b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or
(c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7)This section does not apply to an offence against:
(a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or
(b) Division 80 or section 91.1 of the Criminal Code.
The applicant submits that by virtue of s 80 trial by jury is mandatory for all trials on indictment and that is a right which cannot be waived. Accordingly, the applicant submitted that s 4J of the Crimes Act 1914 (Cth) is unconstitutional in that it purports to allow a defendant to waive trial by jury by consenting to an indictable offence being heard summarily.
In my view this proposed ground of appeal is fundamentally misconceived.
The constitutional validity of s 4J of the Crimes Act 1914 (Cth) has been settled by a number of High Court decisions dating back to R v Archdall and Roskruge; Ex parte Carrigan and Brown.[5]
[5] R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128.
In 1928, when Archdall was decided, s 12 of the Crimes Act 1914 (Cth) stated:
(1)Offences against this Act, other than indictable offences, shall be punishable either on indictment or on summary conviction.
(2)Where proceedings for an offence against this Act are brought in a Court of Summary Jurisdiction, the Court may either determine the proceedings, or commit the defendant to trial.
It was argued for the appellants in Archdall that if the Crimes Act did permit the relevant offences under s 30K to be determined summarily, it was ultra vires of Parliament by reason of s 80 of the Constitution. Knox CJ, Isaacs, Gavan Duffy and Powers JJ said:[6]
The suggestion that the Parliament, by reason of sec. 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition.
[6] R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 at 135.
Archdall may be distinguished to some extent from the present case in that the offence considered under s 30K of the Crimes Act was not expressed to be indictable. The only suggestion that the offence under s 30K was indictable arose from an inconsistency with the s 4 Acts Interpretation Act 1904 (Cth), which provided that an offence with a maximum penalty of greater than six months shall be an indictable offence, unless the contrary intention appears. The Court found that the Crimes Act did express a contrary intention and therefore the section did not apply in the circumstances.
On the other hand, even if the offence was declared to be indictable, s 12A of the Crimes Act provided:
(1)Any proceeding in respect of an offence against this Act, although declared indictable, may, with the consent of the defendant, be heard and determined by a Court of Summary Jurisdiction.
The constitutional validity of the former s 12A would therefore appear to be more relevant to the present appeal. In any case, Archdall has been confirmed on a number of occasions including in Kingswell v The Queen.[7]
[7] Kingswell v The Queen (1985) 159 CLR 264 at 276.
In Kingswell it was argued that ss 233B(1)(cb) and 235(2) of the Customs Act 1901 (Cth) were inconsistent with s 80 of the Constitution because under s 235(2) and (3) the Act allowed for a judge, rather than a jury, to make findings of fact affecting the maximum penalty to which the appellant could be sentenced. The appellant had been convicted by jury and sentenced. Gibbs CJ, Mason, Wilson and Dawson JJ (Brennan and Deane JJ dissenting) held that the provisions did not contravene s 80 of the Constitution because the additional matters in s 235(2) and (3) are not to be considered part of the offence. With regard to the effect of s 80 of the Constitution, Gibbs CJ, Wilson and Dawson JJ (Mason J concurring) said:[8]
Sections 233B(1)(cb) and 235(2) do not contravene s. 80 of the Constitution. Section 80 requires that if there is a trial on indictment of any offence against any law of the Commonwealth it shall be by jury. The sections now in question do not provide to the contrary. If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury. Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s. 80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that s. 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticised, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled …[9]
[8] Kingswell v The Queen (1985) 159 CLR 264 at 276.
[9] Their Honours cited R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v Attorney-General (Cth) (1954) 94 CLR 86 at 88; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182.
The decision in Kingswell continues to be the leading authority, notwithstanding criticism of the result in that case. More recently in Cheng v The Queen,[10] also a case involving ss 233B(1)(cb) and 235(2) of the Customs Act 1901 (Cth), it was agreed that the information containing the charges had the status of an indictment. However, the appellants in that case pleaded guilty before there was any issue to be tried by a jury. Gleeson CJ, Gummow and Hayne JJ refused to re-open Kingswell in order to air the argument that there is a constitutional requirement for trial by jury for all serious offences, stating:[11]
Therefore, on the face of it, no command in s 80 was disobeyed in the present case. The applicants were prosecuted on informations having the status of indictments. If s 80 were to be re-interpreted as a constitutional requirement for trial by jury in the case of all serious Commonwealth offences, the occasion for doing so will be in a case, unlike the present, where there was a legislative denial of trial by jury and there arose in the conduct of the prosecution issues susceptible of trial by jury.
[10] Cheng v The Queen (2000) 203 CLR 248.
[11] Cheng v The Queen (2000) 203 CLR 248 at [43].
McHugh and Callinan JJ also refused to reconsider Kingswell, on the basis that it was correctly decided. McHugh J stated:[12]
Whether one looks at text, history or purpose, the answer is the same: the approach to the construction of s 80 accepted by the majority in Kingswell and by this Court in earlier cases is correct. Section 80 is not a great guarantee of trial by jury for serious matters. It guarantees trial by jury only when the trial is on indictment. Whether the offence is tried or triable on indictment depends in the first instance on Parliament's classification of the offence. Such a conclusion is unlikely to be acceptable to many civil libertarians or those who believe that serious criminal offences should be tried by juries. But it is what our Constitution mandates. A contrary result can only be reached, in my respectful opinion, by disregarding the plain meaning of s 80, its drafting history and its purpose.
[12] Cheng v The Queen (2000) 203 CLR 248 at [143]; see also Callinan J at [283]; Gaudron J found it “unnecessary to consider the authorities which hold that it is for parliament to decide what offences are to be tried on indictment”; Kirby J dissented and would have allowed the appeals.
There is a significant difference between the cases of Kingswell and Cheng and the present case in that in the former two cases, there was no dispute that there was an indictment. Section 80 of the Constitution was clearly enlivened. The question was whether the relevant Act provided for a further offence, for which there had been a denial of a jury. In the present case there was simply no trial on indictment and therefore s 80 was not enlivened.
I accept the respondent’s submission that Brown v The Queen,[13] as relied upon by the applicant is not authority for what constitutes a “trial on indictment”. That was another case before the High Court where there was no question that there was an indictment. On the other hand, the applicant in the present case was confronted with the charge of an indictable offence, where mutual consent of the applicant and the prosecution was required for summary disposition (by judge alone) rather than trial on indictment (which would require a jury).
[13] Brown v The Queen (1986) 160 CLR 171.
In other words, the submissions made on behalf of the applicant mistakenly equate the word “indictable” in s 4J of the Crimes Act with “trial on indictment” as appears in s 80 of the Constitution. “Indictable” means capable of being tried on indictment. This is confirmed by the wording of s 4J(6) which contemplates the restrictions on sentencing should an indictable offence be determined summarily, rather than tried on indictment.
The difference between “indictable” and “tried on indictment” is also demonstrated by the drafting history of s 80 of the Constitution. In Cheng v The Queen,[14] Gleeson CJ, Gummow and Hayne JJ referred to commentary on that topic as follows:
In 1901 Quick and Garran's The Annotated Constitution of the Australian Commonwealth was published. In their commentary on s 80, the learned authors went directly to the point we are asked to re-examine. After referring to the drafting history they wrote:
The constitutional requirement of trial by jury only applies when the trial is “on indictment;” and there is no provision, corresponding to the Fifth Amendment of the United States Constitution, that all capital or infamous crimes must be tried on indictment. As was pointed out by Mr Isaacs (Conv Deb, Melb, p 1894), “it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.”
On 4 March 1898, immediately before Mr Isaacs made the statement quoted by Quick and Garran, Mr Barton referred to what was then cl 79, which began: “The trial of all indictable offences against any law of the Commonwealth shall be by jury ... ” He moved that the words “of all indictable offences” be struck out, and that the words “on indictment of any offence” be substituted. He explained the object of the amendment, which he said was “simple”. It was to avoid the consequence that all offences created by any Commonwealth enactment had to be tried by jury. He referred in particular to contempt, which although indictable, was often dealt with summarily. It was then that Mr Isaacs made his comment.
[Footnotes omitted]
[14] Cheng v The Queen (2000) 203 CLR 248 at [52]-[54], citing Quick and Garran (1901), The Annotated Constitution of the Australian Commonwealth at 808; Official Record of Debates of the Australasian Federal Convention (Melbourne), 4 March 1898, at 1894-1895.
Further, in Cheng McHugh J noted:[15]
Nor is there anything in the phrase "trial on indictment" which suggests a purpose other than that which the literal meaning suggests. No doubt that phrase indicates that the trial is the result of a decision of the Crown, a public authority such as a Director of Public Prosecutions, a magistrate or a grand jury to put the accused on trial by indictment. But that decision could not have been made unless the Parliament had made the offence an indictable one. So nothing is gained by identifying s 80 as having the purpose of requiring trial by jury when some public official has made a decision to put the accused on trial. It still allows the Parliament to avoid the operation of the section by refusing to classify the offence as indictable.
What, then, is the mischief at which s 80 is aimed? When the section is read in the light of its United States counterpart, its drafts and the discussion at the Constitution Conventions, it is plain that it took the form that it did to avoid the mischief that would result if Parliament could not determine which offences against the laws of the Commonwealth were to be tried by juries. The words of s 80 were deliberately and carefully chosen to give the Parliament the capacity to avoid trial by jury when it wished to do so. The current and traditional interpretation of s 80, therefore, gives effect to the purpose of the section.
[15] Cheng v The Queen (2000) 203 CLR 248 at [128]-[129].
Therefore the requirement for trial by jury in accordance with s 80 of the Constitution only arises when an indictable offence proceeds to a trial on indictment. That did not occur in the present case.
Ground 2
This ground is a complaint that the applicant did not consent to the summary determination of the charges as required by s 4J(1) of the Crimes Act.
It appears from the chronology of events that the issue of the applicant’s consent or otherwise to the summary determination of the trial was not part of any appeal grounds considered by the solicitors who prepared the original notice of appeal. The applicant therefore is in the same position as an unrepresented person who has fundamentally misconceived the legal position and in fact did not make any informed choice about whether to proceed to summary determination or trial by jury.
On the basis of the material before me in these proceedings it is not possible to conclude that the applicant was ever informed of her rights in relation to consent to summary jurisdiction. It is true that the Commonwealth Director of Public Prosecutions quite properly included the “Notice to Defendant” to which I have earlier referred, at the time when the information was served upon her then solicitors Rosey Batt & Associates on 10 July 2009. However very shortly thereafter those solicitors informed the Commonwealth Director on 13 and 14 July 2009 that they no longer acted for the applicant. Thereafter she remained unrepresented throughout all the pre‑trial hearings and the trial itself. It is true also that the Commonwealth Director again on 4 November 2009 included a further notice about s 4J of the Crimes Act when serving the applicant with the information on which the prosecution ultimately proceeded to trial. I do not consider that the sending of the notices by the Commonwealth Director consenting to the summary determination of the matter was sufficient in the circumstances here to convey to the applicant who was by then unrepresented, that she too had a choice in the matter. I accept the submission made on her behalf that she never ever turned her mind to the issue.
The respondent argued that the applicant effectively by her conduct throughout the proceedings consented to the summary determination of the matter. That submission was based on correspondence from the applicant’s first solicitors Vadasz Lawyers who indicated that the applicant sought an expeditious resolution to the matter and requested that the charges be prosecuted without delay. Ordinarily, where a defendant is represented, consent to summary determination might well be implied by the receipt of correspondence of the kind referred to in these proceedings. However, the matter was complicated by the fact that those solicitors withdrew from the matter very shortly after that correspondence, and at the date when the applicant was served with the information which proceeded to trial and the accompanying documentation, she was unrepresented and remained unrepresented throughout. There is no transcript available from the Magistrates Court which sheds light one way or another on whether the issue of consent to summary determination was raised with the applicant or at all, during any of the pre‑trial or other directions hearings in the matter. As I have remarked earlier the Magistrate presiding at the trial quite reasonably assumed that all pre-trial issues had been dealt with before the matter was listed for trial. Unfortunately because the applicant was unrepresented the applicant simply did not turn her mind to the issue. I do not think any criticism can be made of her for failing to do so. As there is no indication in the records of the Magistrates Court that any judicial officer who presided at the pre-trial hearings ever turned his/her mind to this matter I am forced to the conclusion that nobody apart from the Commonwealth Director of Public Prosecutions ever did address the issue.
This case illustrates the importance of recording in writing, perhaps in the same manner as the Commonwealth Director, the consent of a defendant to the summary determination in cases where consent is required. It is particularly important in the case of an unrepresented defendant that at the very least an endorsement to that effect is placed on the file by the presiding judicial officer at the pre‑trial conference.
This is not a minor matter. A defendant’s right to a trial by jury is a fundamental right unless that person consents to summary disposition. It is a right that the applicant ought to have been advised about. There is no evidence before me which indicates that she ever was informed about that right, other than by the sending of the notice by the Commonwealth Director that the prosecution consented to the summary determination of the matter.
Upon the hearing of this appeal, counsel now acting for the applicant, informed the Court that he has formal instructions that the applicant having now been informed of her right, will, if successful upon this appeal, seek a trial by jury.
It is true that the applicant instructed her solicitors to withdraw the original notice of appeal which contained five grounds of appeal and that she did so after obtaining advice from senior counsel. Consistent with the observations of the Chief Justice in Brain[16] it would only be in very unusual circumstances that a person who had filed a notice of discontinuance in the exercise of a deliberate choice based on legal advice by senior counsel, would ever be permitted to withdraw that notice. However I am satisfied that special circumstances do exist here. In my view the applicant having been effectively deprived of her right of a trial by jury has suffered an injustice which can only be remedied by setting aside the conviction and allowing the applicant to have a trial by jury.
[16] R v Brain (1999) 74 SASR 92.
An additional feature of the present case is that, unlike in Brain and the other cases referred to therein, here there was no substantial delay in applying to withdraw the notice of discontinuance. The application was made only five weeks and two days after the notice of discontinuance was filed. There having been no appeal heard on its merits, no prejudice arises in allowing the notice of discontinuance to be withdrawn.
Accordingly this ground of appeal must succeed.
In the light of this conclusion it is not necessary to deal in any detail with proposed ground 3 or the appeal against sentence. However I would add briefly in light of the fact that there is to be a retrial that I do not consider proposed ground 3 of the applicant’s appeal has any merit. The evidence of the uncharged acts led by the prosecution were, in my view, plainly admissible.
For these reasons the orders of the Court are:
1.The applicant be permitted to withdraw the notice of discontinuance of appeal filed on 15 November 2010.
2.The applicant have permission to extend the time within which to file the grounds of appeal until 7 March 2011.
3.The appeal against conviction is allowed.
4.The conviction and sentence recorded in the Elizabeth Magistrates Court be quashed.
5.The matter is to be remitted to the appropriate court for retrial.
I will hear counsel as to whether this matter should be transferred back to the Magistrates Court of whether it may be possible to expedite the committal of this matter to the District Court.
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