Pinkstone v The Queen

[2000] WASCA 367

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION : PINKSTONE -v- THE QUEEN [2000] WASCA 367

CORAM : KENNEDY J

IPP J

OWEN J

HEARD	: 9 NOVEMBER 2000
DELIVERED	: 9 NOVEMBER 2000
PUBLISHED	: 22 NOVEMBER 2000
FILE NO/S	:  CCA 184 of 2000
BETWEEN	: ANTHONY JOHN PINKSTONE

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Appeal against convictions - Offences against Commonwealth law committed wholly in New South Wales - Operation of s 68 of Judiciary Act 1903 (Cth) - Jurisdiction of District Court of Western Australia to convict and sentence not enlivened without entry of guilty plea in Court of Petty Sessions

Legislation:

Judiciary Act 1903 (Cth), s 68

[2000] WASCA 367

Result:

Appeal allowed
Convictions quashed

Matter remitted to Court of Petty Sessions

Representation:

Counsel:

Appellant	:	Mr D P A Moen
Respondent	:	Mr H G Dembo

Solicitors:

Appellant	:	Cannon Bowden & Co
Respondent	:	Commonealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Ellis (1973) 57 Cr App R 571

R v Grant [1975] WAR 163

Case(s) also cited:

Adlem v The Queen [1999] WASCA 1
Bond v The Queen [2000] HCA 13
Byrnes v The Queen (1999) 73 ALJR 1292
Cheng v The Queen [2000] HCA 53
Lam v The Queen [2000] WASCA 115
Lipohar v The Queen [1999] HCA 65
Pinkstone v The Queen [2000] WASCA 228
R v Hughes [2000] HCA 22
Thompson v The Queen (1989) 169 CLR 1
Ward v The Queen (1980) 142 CLR 308

[2000] WASCA 367

JUDGMENT OF THE COURT

1. JUDGMENT OF THE COURT: This is an appeal against convictions following pleas of guilty entered by the appellant to two counts of knowingly making a false statement in writing for the purposes of obtaining an Australian Passport, contrary to s 10(1)(a) of the Passports Act 1938 (Cth).

2. At the conclusion of the hearing the Court announced that the appeal be allowed, the appeal and the convictions quashed and that brief reasons would be published later. These are those reasons.

Background

1. The appellant is ordinarily resident in New South Wales. During 1999 he was in custody in this State awaiting trial on offences against the Misuse of Drugs Act 1981 (WA). While he was in custody, the appellant was questioned about other matters. On 3 December 2000 he appeared in the Court of Petty Sessions at Perth charged on complaint with two counts alleging that he made a false statement in writing for the purpose of obtaining an Australian passport. Both offences were said to have been committed in New South Wales, one on 8 June 1998 and the other on 2 October 1998. The offences are, of course, against Commonwealth law. He was also charged with two counts alleging conduct contrary to s 29(b) of the Crimes Act 1914 (Cth). It is common ground that at the hearing in the Court of Petty Sessions the appellant was not required to enter a plea to the counts on the complaint. However, it appears that there may have been an indication given to the Court by his solicitor that the appellant would plead guilty to the two Passport Act offences. Without any pleas having been taken, he was remanded for trial in the District Court.

2. The Crown decided not to proceed in relation to the Crimes Act charges. On 8 February 2000 the appellant appeared in the District Court on an indictment containing the two Passport Act charges. He pleaded guilty and was sentenced to 12 months' imprisonment on each count. The sentencing Judge ordered that the sentences be served cumulatively. He appealed against those sentences and on 24 August 2000 the Court of Criminal Appeal reduced the total sentence from 2 years to 15 months.

3. Meanwhile, the appellant had taken further legal advice that cast some doubt on the legality of the convictions. On 9 August 2000 the appellant lodged a notice of appeal against conviction together with an application for an extension of time.

[2000] WASCA 367

JUDGMENT OF THE COURT

The Grounds of Appeal and the Proceedings on Appeal

1. The notice of appeal, in its original form, complained that the convictions were a nullity because of s 80 of the Commonwealth Constitution. The argument is that s 80 requires, among other things, that the trial on indictment of an offence against a law of the Commonwealth "shall be held in the State where the offence was committed". These offences were committed wholly in New South Wales. There was no territorial nexus between Western Australia and any element of the offences. Accordingly, the District Court had no jurisdiction to conduct the trial and the convictions were a nullity.

2. At the hearing the appellant sought leave to add a second ground of appeal. It is in these terms:

   "In the alternative, the proceedings were brought before the District Court of Western Australia in such a manner that they did not enliven the jurisdiction provided by Judiciary Act 1903, s 68."

3. The matter which is encompassed within the alternative ground had been raised by the Crown in its written submissions filed on the day before the appeal was due to be argued. In those submissions the Crown effectively conceded that, on the basis of the alternative ground, the appeal would have to succeed.

4. In our view, the concession was properly made. When the appeal came on for hearing, counsel for the appellant sought leave to amend by adding the alternative ground. Leave was granted and the Crown immediately conceded the appeal on that basis. This meant that it was unnecessary for the Court to consider whether the convictions were a nullity under s 80 of the Constitution and it has not done so. That may be a matter for another day.

The Judiciary Act Ground

1. We should say something very briefly about the challenge to the convictions on the alternative ground.

2. Sections 68(2), (5) and (7) of the Judiciary Act 1903 (Cth) confer jurisdiction on the District Court of Western Australia to sentence a person who commits an offence in New South Wales but pleads guilty in a court of summary jurisdiction in Western Australia and is committed on that plea. However, it is to be noted that s 68(7) requires that for the

[2000] WASCA 367

JUDGMENT OF THE COURT

jurisdiction in s 68(2) to be enlivened there must be a plea of guilty to the charge in the court of summary jurisdiction. Once that has occurred, then, if the charge is one for which the person could be prosecuted on indictment, the person can be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with by that court.

1. It is common ground that a plea of guilty was not entered to the charges in the Court of Petty Sessions. Even accepting that the appellant may have expressed (through his solicitor) an intention to plead guilty, the formal step of entering the plea was not taken. Under s 612 of the Criminal Code 1913 (WA) an accused must plead personally to the arraignment and the plea cannot be made through counsel or any other person on his or her behalf: R v Grant [1975] WAR 163 per Wickham J at 165; see also R v Ellis (1973) 57 Cr App R 571 at 574 - 75. Given the fundamental significance of a plea of guilty within the criminal justice system, we can see no reason why any different considerations should apply to a plea entered under or for the purposes of Pt V, Div 2 of the Justices Act 1902 (WA). The position may be slightly different under Pt VI of the Justices Act, dealing with simple offences rather than indictable offences: see, for example, s 135(1b). But that is not this case.

2. For these reasons, it seems to us that the proceedings in the District Court were fundamentally flawed. This explains why, at the conclusion of the hearing, the Court made orders to the following effect:

   1.          The time limited for lodging notice of appeal be extended to 9 August 2000.

   2.          The appeal be allowed.

   3.          The convictions be quashed.

   4.          The matter be remitted to the Court of Petty Sessions for further consideration.

   5.          There be liberty to apply in relation to the indictment that was presented to the District Court.