Pearce v Cocchiaro

[1977] HCA 31

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Jacobs, Murphy and Aickin JJ.

PEARCE v. COCCHIARO

(1977) 137 CLR 600

22 June 1977

Bankruptcy

Bankruptcy—Offences—Jurisdiction and powers of courts—Court of summary jurisdiction in South Australia—Application of South Australian laws governing procedure—"Court of summary jurisdiction"—Powers of the Commonwealth Parliament—Investment of State courts with power to hear and determine bankruptcy offences—Investment also of power to commit for trial—The Constitution (63 &64 Vict. c. 12), ss. 51 (xvii.)), 77 (iii.)—Bankruptcy Act 1966 (Cth), s. 273—Judiciary Act 1903 (Cth), s. 68—Acts Interpretation Act 1901 (Cth), ss. 26 (d), 42—Justices Act, 1921 (S.A.), ss. 106a, 120.

Decisions

June 22. The following written judgments were delivered:-
GIBBS J. The respondent was charged on the information of the appellant with a number of offences against ss. 269 (a), 269 (b) and 270 (1) (a) respectively of the Bankruptcy Act 1966 (Cth), as amended. He appeared before a special magistrate sitting in Adelaide to answer those charges. Seven of the counts in the information were then read, and the respondent consented to those counts being heard and determined in a summary manner, and pleaded guilty to them. The special magistrate remanded the respondent for sentence, and subsequently recorded convictions in respect of the seven counts and imposed a sentence of thirteen weeks' imprisonment on each of three counts and of one month's imprisonment on each of the other counts and ordered that the sentences be served concurrently. (at p602)

2. The respondent then appealed to a single judge of the Supreme Court of South Australia on the following grounds:

"(1) The sentences were manifestly excessive.

(2) The learned special magistrate failed to use the provisions of s. 19B and/or s. 20 of the Crimes Act."

Although the notice of appeal did not raise the question whether the special magistrate had jurisdiction to hear and determine the information, the learned judge to whom the appeal was brought entertained doubt on that point, and reserved for the consideration of the Full Court of the Supreme Court a number of questions, including the following:

"(1) Has a Court of Summary Jurisdiction in South

Australia jurisdiction to hear and determine an information charging offences against the Bankruptcy Act 1966?"

The Full Court, by a majority, answered that question, "No". This Court has granted special leave to appeal from the decision of the Full Court. (at p603)

3. The maximum penalty provided for a breach of s. 269 of the Bankruptcy Act is imprisonment for three years. The maximum penalty provided for a breach of s. 270 (1) (a) is, in the case of certain persons, imprisonment for three years and, in the case of any other persons, imprisonment for one year. It is immaterial for present purposes into which of these classes the respondent fell. By s. 42 of the Acts Interpretation Act 1901 (Cth), as amended, offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary intention appears, be indictable offences. Notwithstanding this provision, it is clear that any offence against the Bankruptcy Act, other than an offence punishable by a fine only, may be tried either on indictment or summarily, and that summary proceedings for the trial of any such offence may be brought either in a court of summary jurisdiction or in a court having jurisdiction in bankruptcy. That is the effect of s. 273 of the Bankruptcy Act, which provides, inter alia, as follows:

"(1) Subject to this section, an offence against this Act, other than an offence that is punishable by a fine only, is punishable either on indictment or on summary conviction.

(2) Where proceedings for an offence that is punishable as provided by the last preceding sub-section are brought in a court of summary jurisdiction, the court may either determine the proceedings or commit the defendant for trial, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offence.

(3) Subject to the next succeeding sub-section, an offence against this Act that is punishable by a fine only is punishable by a court of summary jurisdiction."

The remaining sub-sections deal with the jurisdiction and procedure of courts having jurisdiction in bankruptcy, and it is unnecessary to quote them. (at p603)

4. If, when the special magistrate entered the convictions and imposed the sentences, he was sitting as a court of summary jurisdiction within the meaning of s. 273 (2) of the Bankruptcy Act, there can be no doubt that he was acting within the jurisdiction which that sub-section confers. The Bankruptcy Act contains, in s. 5 (1), a definition of "court of summary jurisdiction", but that definition is designed only to include within the expression certain courts of a Territory and it is of no application to the circumstances of the present case. However, by s. 26 of the Acts Interpretation Act, it is provided that in any Act, unless the contrary intention appears:

"(d) '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, sitting as a 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 a State or by virtue of his or their commission or commissions or any Imperial Act." (at p604)

5. It is quite clear that a special magistrate in South Australia may constitute a court of summary jurisdiction within the definition contained in s. 26 (d) of the Acts Interpretation Act, and within the ordinary meaning of the expression. Provision for the summary determination of offences in South Australia is made by the Justices Act, 1921 (S.A.), as amended, whose provisions are of the same general nature as those contained in similar statutes of the other States of the Commonwealth, although there are differences in detail from State to State. Under the Justices Act, proceedings against a person alleged to have committed a simple offence may be commenced by a complaint made to a justice: s. 49. Part IV of the Justices Act provides for the hearing and determination of such proceedings in a summary manner by a court of summary jurisdiction. The words "court of summary jurisdiction" and "court" are defined as follows in s. 4 (1) of the Justices Act:

"'court of summary jurisdiction' or 'court' means justices forming a court for the purposes of hearing and adjudicating upon any case or matter which they have power to determine in a summary manner, and whether they are acting under this Act, or under any other Act incorporated herewith, or by virtue of their commissions, or under the common law."

By the same sub-section, "justice" includes any magistrate who is authorized to act as a justice of the peace in and for the State, and "justices" includes a special magistrate, where a special magistrate has jurisdiction or authority to act in relation to the matter in question. A justice may be appointed to be a special magistrate, under the provisions of s. 11 of the Justices Act. By s. 13 of that Act it is provided as follows:

"So long as his commission remains in force and unrevoked, every special magistrate shall have jurisdiction, power, and authority to do alone whatsoever any one, two, or more justices may lawfully do under this Act, or under or by virtue of any other Act conferring jurisdiction, power, or authority upon justices ...";

the section is subject to a proviso which is immaterial in the present case. There can be thus no doubt that a special magistrate, sitting to hear and determine a complaint for a simple offence, would constitute a court of summary jurisdiction. (at p605)

6. However the Justices Act, like the corresponding statutes of other States, also gives justices power to conduct an examination for the purpose of deciding whether a person charged on information shall be committed for trial before a jury: see Pt V. By reason of the provisions of s. 13 and the definitions in s. 4 (1) this power is vested in a special magistrate. By s. 120 it is provided that "a court of summary jurisdiction constituted by a special magistrate or by any two or more justices" shall have jurisdiction to hear and determine in a summary way any charge in respect of any of the offences (referred to as "minor offences") specified in that section. A defendant charged on information with an offence cognizable by a special magistrate or justices under s. 120 may plead guilty, and if he does, one of the consequences is that "the magistrate or justices shall, in relation to that offence, be a court of summary jurisdiction within the meaning of this Act": s. 106a (2) (a). Even if the defendant does not plead guilty the special magistrate or justices may deal with the case in a summary way unless the defendant elects to be tried upon indictment: s. 122. That section throughout refers to the special magistrate or justices conducting the proceedings as a court. If the special magistrate or the justices proceed to dispose of the case as a minor offence, the defendant must be asked whether he is guilty or not guilty of the charge and "thereafter the justices or special magistrate shall be a court of summary jurisdiction within the meaning of this Act ...": s. 125 (2). (at p605)

7. The learned judges who constituted the majority in the Full Court held that a stipendiary magistrate who is conducting a preliminary examination under the provisions of Pt V of the Justices Act is not sitting as a court, or at least is not sitting as a court for the making of summary orders or the summary punishment of offences, and is therefore not a court of summary jurisdiction within the meaning of s. 273 (2) of the Bankruptcy Act. This conclusion was supported by a consideration of the nature of the function performed by the special magistrate, and by reference to the provisions of the Justices Act. First it was said that it is established by authority that a special magistrate, conducting a preliminary examination into the question whether an alleged offender should be committed for trial, is exercising an administrative and not a judicial function, and does not act as a court: see the cases cited in Ammann v. Wegener (1972) 129 CLR 415, at p 435 . In any case such a magistrate is not sitting for the summary punishment of offences, but to inquire whether the defendant ought to be committed for trial. For these reasons the magistrate does not come within the definition contained in s. 26 (d) of the Act Interpretation Act. Further, or in the alternative, it was said that the provisions of the Justices Act themselves show that a special magistrate conducting such an examination does not become a court of summary jurisdiction until either the defendant pleads guilty (s. 106a (2) (a)) or the special magistrate has decided to deal with the case in a summary way and the defendant has been asked whether he is guilty or not guilty of the charge (s. 125 (2) ). The provisions of ss. 120 and 122, which appear to treat a special magistrate as sitting as a court of summary jurisdiction even while he is still at the stage of conducting the preliminary examination, are "loose and inaccurate" and do not support a contrary view. Furthermore, even if the special magistrate were a court, he had no jurisdiction to proceed under s. 106a, because that section applies only to a defendant charged with an offence cognizable under s. 120, and an offence against the provisions of ss. 269 or 270 (1) (a) of the Bankruptcy Act is not within the description contained in s. 120. (at p606)

8. Bray C.J., who dissented, pointed out that on the argument which was accepted by the majority of the Full Court s. 273 (1), (2) and (3) of the Bankruptcy Act can never operate in South Australia at all, because the proceedings can never effectively be begun. The learned Chief Justice went on to explain why this would be so. He said (1977) 14 ALR, at p 344 :

"They cannot be begun by information in a court of summary jurisdiction because the magistrate is not a court of summary jurisdiction until he has decided to hear the case summarily: they cannot be begun by complaint in a court of summary jurisdiction because it was intended that the magistrate should have a discretion either to deal with the case summarily or to commit the defendant for trial and the law of South Australia does not envisage commitment for trial as a result of proceedings instituted by complaint and it is the law of South Australia which must be applied to the examination and commitment for trial of persons charged with offences against the laws of the Commonwealth (s. 68 (1) of the Judiciary Act 1903, as amended)."

It is impossible to suppose that such a result, which would probably follow in other States as well as in South Australia, and which would reduce s. 273 (2) to a futility, was intended by the Parliament when it enacted the section. The words of s. 273 (2) show clearly that a court of summary jurisdiction, in which proceedings for an offence against the Bankruptcy Act (other than an offence that is punishable by a fine only) may be brought, is a court which may either determine the proceedings or commit the defendant for trial. When the definition contained in s. 26 (d) of the Acts Interpretation Act is read into s. 273 (2), it appears that the "court of summary jurisdiction" to which s. 273 (2) refers includes a justice or justices of the peace or other magistrate of a State sitting "as a court" for the summary punishment of offences under the law of the State, and having power to commit the defendant for trial. A special magistrate in South Australia before whom there appears a defendant charged upon an information with an indictable offence answers this description. Such a magistrate is commonly, and not incorrectly, described as a court: cf. Ammann v. Wegener (1972) 129 CLR, at pp 436, 442 . A magistrate sitting to conduct a preliminary examination, and having power either to commit the defendant for trial or to determine the proceedings summarily, constitutes a "court of summary jurisdiction" within the meaning of s. 273 (2), whether or not he can be described as a "court of summary jurisdiction" within the meaning of the Justices Act at the time the proceedings are commenced and before the defendant has pleaded guilty, and whether or not at that time he is conducting an inquiry that can properly be called judicial. (at p607)

9. For these reasons the provisions of s. 273 (2) of the Bankruptcy Act conferred on the special magistrate jurisdiction to determine summarily the proceedings against the respondent. It is unnecessary to decide whether, if s. 273 (2) had not had this effect, ss. 39 (2) and 68 (2) of the Judiciary Act would have brought about the same result. It is equally unnecessary to consider the correctness of the decision of Wells J. in Smith v. Pearce (1971) SASR 230 which was given in relation to the Bankruptcy Act 1924-1965 (Cth); since that Act, now repealed, did not contain provisions corresponding to those of s. 273 (2), the case is distinguishable. (at p608)

10. On the view that I have taken it does not matter that the offences created by ss. 269 and 270 (1) (a) of the Bankruptcy Act are not "cognizable ... under section 120" within the meaning of s. 106a of the Justices Act. It is s. 273 (2) that empowers the special magistrate to determine those offences summarily. The laws of South Australia respecting the procedure to be followed will apply and be applied so far as they are applicable: see s. 68 (1) (a) and (b) of the Judiciary Act. The provisions of the Justices Act will, so far as they are applicable, therefore provide the procedure by which the preliminary examination is conducted and the defendant is either summarily dealt with or committed for trial, but it is not necessary to find in the Justices Act a provision giving a special magistrate power to deal summarily with offences against the Bankruptcy Act notwithstanding that the proceedings were commenced by information; that power is conferred by s. 273 (2). (at p608)

11. Counsel for the respondent in argument before us placed some reliance on s. 68 (3) of the Judiciary Act, which it was submitted supported the view that jurisdiction to determine the proceedings summarily was only conferred on a special magistrate who was acting judicially at the time when the proceedings first came before him. Section 68 (3) deals with the exercise of the jurisdiction mentioned in s. 68 (2). The latter sub-section confers certain federal jurisdiction upon the several courts of a State exercising jurisdiction with respect to:

"(a) the 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 ..."

Section 68 (3) then provides:

"Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Stipendiary or Police or Special Magistrate, or some Magistrate ... who is specially authorised by the Governor-General to exercise such jurisdiction."

It is unnecessary to decide whether s. 68 (3) governs an exercise of jurisdiction conferred, not by s. 68 (2), but by a provision of another Commonwealth Act, such as s. 273 (2) of the Bankruptcy Act, for if the sub-section does apply it was satisfied. The jurisdiction was exercised by a special magistrate. There can be no doubt that a special magistrate conducting an examination for the purpose of deciding whether an alleged offender should be committed for trial would come within the description of a court within s. 68 (2) and it appears that the Parliament, in enacting s. 68 (3), proceeded on the assumption that a magistrate exercising such a function would be exercising the jurisdiction judicially. It is immaterial whether this assumption was right or wrong, for the only substantive requirement of s. 68 (3) is that a person charged with an offence against a law of the Commonwealth shall not be summarily convicted, or examined and committed for trial, except by a magistrate of one of the kinds described. The intention was to preclude the exercise of this jurisdiction by justices of the peace who are not such magistrates. (at p609)

12. There can in my opinion be no doubt as to the validity of the provisions of s. 273 (2) of the Bankruptcy Act. In so far as the power with which the special magistrate is invested by that section is judicial power, the section is validly enacted under s. 77 (iii.) of the Constitution. In so far as the sub-section confers on the special magistrate power of a non-judicial kind (being the same sort of power that he already exercises in relation to offences against State law) it is a valid law with respect to those matters in relation to which the Parliament may create criminal offences - in the present case, bankruptcy (s. 51 (xvii.) of the Constitution). (at p609)

13. For the reasons I have given I consider that the special magistrate in the present case was acting within his jurisdiction in hearing and determining the information. I would allow the appeal, set aside the judgment of the Full Court of the Supreme Court, order that question (1) be answered "Yes", and remit the matter to the Supreme Court to proceed accordingly. (at p609)

STEPHEN J. I agree with the reasons for judgment of Gibbs J. and would accordingly allow this appeal. (at p609)

JACOBS J. I agree with the reasons for judgment which have been prepared by Gibbs J. and with his conclusion. (at p609)

MURPHY J. Section 273 (2) of the Bankruptcy Act 1966 (Cth), as amended, provides that where proceedings for an offence punishable either on indictment or on summary conviction"... are brought in a court of summary jurisdiction, the court may either determine the proceedings or commit the defendant for trial, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offence". Section 273 (2) discloses a legislative intent that a court of summary jurisdiction under the provisions of the Justices Act. 1921 (S.A.) (s. 4 (1) , (3) ) has power to determine summarily the proceedings against the respondent. It is irrelevant that the offences are not otherwise cognizable under the Justices Act (see s. 120; 106a). The provisions of the Justices Act bring a court constituted by the special magistrate within the description "court of summary jurisdiction" used in s. 273 (2). (at p610)

2. The respondent argued that neither of the procedures under the Justices Act can be used for the purposes of s. 273 (2) because the procedure by complaint is not available for indictable offences, and if the procedure by information is used, the court is then not a court of summary jurisdiction because, until the magistrate decides to determine the proceedings rather than commit for trial, the proceedings are administrative rather than judicial. This approach to s. 273 (2) would exclude the very tribunals it contemplates from the expression, "courts of summary jurisdiction". (at p610)

3. Whether federal laws which directly or indirectly provide for non-jury trial of serious offences against the laws of the Commonwealth can stand with s. 80 of the Constitution is, in my opinion, questionable (I referred to this in Beckwith v. The Queen (1976) 135 CLR 569 ). The offences in this case were indictable. The maximum punishment is three years' imprisonment (ss. 269, 270), although s. 273 (2) prohibits imposition of imprisonment for more than one year if the proceedings are determined summarily. No argument based on s. 80 of the Constitution was advanced. I decide this case without taking account of the section. (at p610)

4. The question "Has a court of a Summary Jurisdiction in South Australia jurisdiction to hear and determine on information charging offences against the Bankruptcy Act 1966?" should be answered, "Yes". (at p610)

AICKIN J. I agree with the reasons for judgment of Gibbs J. and would accordingly allow the appeal. (at p610)

Orders

Appeal allowed. No order as to the costs of the appeal.

Judgment of the Full Court of the Supreme Court of South Australia set aside. In lieu thereof order that the question numbered 1. reserved for the consideration of the said Full Court, viz. "Has a court of summary jurisdiction in South Australia jurisdiction to hear and determine an information charging offences against the Bankruptcy Act 1966?", be answered "Yes".

Remit the matter to the Supreme Court of South Australia