Plant (a pseudonym) v Steele
[2024] ACTSC 389
•9 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Plant (a pseudonym) v Steele |
Citation: | [2024] ACTSC 389 |
Hearing Date: | 2 December 2024 |
Decision Date: | 9 December 2024 |
Before: | McCallum CJ |
Decision: | (1) The appeal is dismissed. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Where Magistrate refused a stay of summary proceedings - whether appeal incompetent – whether leave should be granted to bring judicial review proceedings – impact of legislation increasing the age of criminal responsibility |
Legislation Cited: | Australian Capital Territory (Self-Government) Act1988 (Cth) s 48A |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 |
Texts Cited: | D Mossop, The Constitution of the Australian Capital Territory (The Federation Press, 2021) |
Parties: | Mary Plant (a pseudonym) ( Appellant) Katrina Steele ( Respondent) |
Representation: | Counsel G Le Couteur ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | CA 48 of 2024 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Stewart Date of Decision: 20 September 2024 Case Title: The Police v Plant Court File Number: CH2023/1357 |
McCALLUM CJ:
Introduction
1․The appellant is alleged to have committed an offence of common assault on 24 July 2023, when she was 13. Later that year, on 15 November 2023, the Legislative Assembly passed legislation that will increase the age of criminal responsibility in the Australian Capital Territory to 14. If that had been the law at the time of the alleged assault, the appellant would not have been liable to be charged. However, that part of the legislation does not come into force until 1 July 2025. The legislature’s reason for delaying the commencement of the provisions in question is to allow time for the necessary services to be put in place to support the new statutory regime.
2․The appellant contends that the prosecution of a 13-year-old child during the period between the notification (and commencement in part) of the legislation in November 2023 and the date on which the higher age of criminal responsibility comes into force amounts to an abuse of process. That is said to be because, so it is argued, the premise of the legislation is the recognition, based on empirical research, that children under 14 are incapable of forming criminal intent.
3․On the strength of those contentions, the appellant applied in the Children’s Court to have the proceedings against her permanently or temporarily stayed. On 20 September 2024, that application was dismissed by Magistrate Stewart.
4․The appellant appeals from that decision. The Director of Public Prosecutions contends that the appeal is incompetent. As the charge is due to be heard in the Children’s Court on 17 January 2025, the challenge to competency and the substantive appeal were listed for hearing at the same time with listing priority.
5․I have concluded that the appeal is incompetent and must accordingly be dismissed. Had it been necessary to determine the issue, I would have held that the decision of the Magistrate was within power and did not entail error. My reasons for those conclusions are as follows.
Statutory context in which the appeal is brought
6․As the law presently stands in the Territory, a child of or over the age of 12 years but under the age of 14 years can be held criminally responsible for an offence, provided the prosecution proves the child knows their conduct is wrong: s 26 of the Criminal Code 2002 (ACT). The amendment that comes into force on 1 July 2025 will provide that a child under the age of 14 years cannot be held criminally responsible for an offence other than one specified in a schedule to the Act: s 94 of the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT). The schedule is confined to very serious offences and does not include the offence of common assault.
7․In addition to increasing the age of criminal responsibility, the legislation also provides for the extinguishment of prior criminal convictions. That is achieved by amendments to the Spent Convictions Act 2000 (ACT) which also come into force on 1 July 2025. The effect of those amendments will be to extinguish any conviction for an offence committed by a child at a time when they were under the age of 14 years: s 125 of the Justice (Age of Criminal Responsibility) Legislation Amendment Act. It follows that any conviction in the proceedings against the appellant will be extinguished by force of statute within less than 6 months of its being entered. That is a further aspect of the appellant’s contention that the proceedings are an abuse of process.
No specific statutory appeal from the refusal of a stay
8․The appellant’s notice of appeal is unclear as to the jurisdiction sought to be invoked. It is framed as an appeal (“the appellant appeals from all of the order”) and uses the approved form for starting an appeal in the Supreme Court, form 5.4: see r 5100 of the Court Procedures Rules 2006 (ACT). These features suggest that it was intended to invoke the Court’s appellate jurisdiction by bringing one of the kinds of appeal from the Magistrates Court provided for under the Magistrates Court Act 1930 (ACT). However, the relief sought (“an order in the nature of certiorari”) is framed in terms apt to invoke the Court’s supervisory jurisdiction described in s 34B of the Supreme Court Act 1933 (ACT). That section recognises the Court’s power to grant prerogative relief, which falls within its original, not appellate jurisdiction. The orders that may be made by the Court in exercise of its appellate jurisdiction are those specified in the statute that creates the kind of appeal brought.
9․The Magistrates Court Act creates three kinds of appeal from the Magistrates Court to this Court: criminal appeals under Div 3.10.2, reference appeals under Div 3.10.2A and review appeals under Div 3.10.3. Reference appeals are irrelevant here as they may only be brought by specified officeholders.
10․The history and nature of the other two kinds of appeal, criminal appeals and review appeals, were considered recently by a Full Court of this Court in Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 at [45]-[71]. Importantly for present purposes, neither kind of appeal is available from an interlocutory order in summary proceedings: Satchithanantham v Folkes [2019] ACTSC 165 at [22] (Mossop J), applied in Evans v Dziubinski [2023] ACTSC 312 at [23]-[25] (Baker J).
11․The appellant did not contend otherwise, but submitted that the order appealed from here is not interlocutory because it finally determined her rights concerning the stay application, including the asserted rights on which the application is founded. It is important to understand in that context that, while the decisions in Satchithanantham and Dziubinski used the term “interlocutory”, that was by way of generic description of the kind of order not included in the list of decisions that can be the subject of appeal. In my opinion, the refusal of a stay is clearly an interlocutory order. However, for present purposes, it does not ultimately matter whether that is right. The critical question is whether an order refusing a stay application in a summary prosecution is included in any of the lists of decisions from which an appeal lies (ss 208, 219AB and 219B of the Magistrates Court Act). An order refusing a stay does not fall within any of those provisions. I note that the same has been held in respect of the grant of a stay: Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14; 9 ACTLR 84 at [49] (Penfold J).
12․For those reasons, to the extent that the appeal purports to invoke any of the specific statutory rights of appeal under the Magistrates Court Act, it is incompetent.
Whether there is an entrenched general right of appeal
13․The appellant contended alternatively that there is an entrenched right of appeal in s 48A of the Australian Capital Territory (Self-Government) Act1988 (Cth) or s 20 of the Supreme Court Act 1933 (ACT).
14․Section 48A of the Australian Capital Territory (Self-Government) Act provides:
48A Jurisdiction and powers of the Supreme Court
(1)The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.
(2)In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.
(3)The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.
15․There is an unresolved question as to whether that provision merely describes and entrenches the existence of the Court and its sources of jurisdiction or whether it also creates a general or complementary right of appeal where no specific statutory right of appeal exists. I will return to that question.
16․Section 20(1) of the Supreme Court Act provides:
20 Jurisdiction and powers of Supreme Court
(1)The court has the following jurisdiction:
(a)all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b)jurisdiction conferred by a Commonwealth Act or a law of the Territory.
17․The notion that s 20(1)(a) creates a general right of appeal has its origin in the decision of a Full Court of the Federal Court in Kelly v Apps [2000] FCA 687; 98 FCR 101. On appeal from the Magistrates Court to this Court, Miles CJ had held that the Court does not have power under s 219B of the Magistrates Court Act to review an order for costs made by the Magistrates Court upon the dismissal of an information.
18․The Federal Court (to which an appeal from this Court then lay) evidently agreed. However, without determining that question, the Court focused instead on what it considered to be “a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act”: at [21] (Wilcox J, Gallop and Marshall JJ agreeing at [28] and [29]).
19․Wilcox J said at [18]:
The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory. It cannot, I think, be disputed that the making of a costs order that ought not to have been made, or the failure to make a costs order that ought to have been made, is a wrong in the administration of justice in the Territory and that it is, therefore, appropriately the subject of the jurisdiction of the Supreme Court under s 20(1)(a).
20․His Honour further expressed the view at [21] that s 20(1)(a) “is obviously intended as a salutary provision to enable justice to be done by the Supreme Court” and continued at [22]:
If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of s 20(1)(a) of the Supreme Court Act.
21․Gallop J at [28] expressed gratitude to Wilcox J for his eloquent ex tempore reasons, agreed with them and had nothing to add.
22․Marshall J at [29] agreed “generally” with Wilcox J but anchored his conclusion in the proposition that s 20(1)(a) of the Supreme Court Act read together with s 207(2) of the Magistrates Court Act gave the Court “relevant jurisdiction”. The latter section provides, in relation to Part 3.10 of the Act dealing with criminal appeals:
This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.
23․In Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157, the Court of Appeal disapproved Kelly v Apps, holding at [40] (Penfold, Gilmour JJ and Walmsley AJ) that it was decided per incuriam (meaning through lack of care). Features of the decision pointing to that conclusion were that it was delivered ex tempore and included no discussion of the important proposition that appeals are “creatures of statute”. This phrase appears to have been coined by Windeyer J in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 and has been recited many times since. Windeyer J explained:
Appeal being a remedy given by statute, it is necessary to observe what powers are conferred upon the appeal court by the relevant statute, for all such courts are not in the same position. And the word ‘appeal’ has itself more than one sense for modern law.
24․A similar point was made by Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [29], where his Honour said:
As appeals are creatures of statutes, incidents of appeals can vary from statute to statute.
25․The text of s 20(1)(a) of the Supreme Court Act (“the court has all original and appellate jurisdiction that is necessary to administer justice in the Territory”) is not framed in terms apt to create an appeal. It does not articulate the incidents of the appeal or provide any guidance to the court as to how to discharge its appellate function. It does not specify the standard of review, the material by reference to which an appeal would fall to be determined or the orders the court would have power to make in determining an appeal.
26․Burow was an appeal from a different kind of order (a refusal to vary the default disqualification period of a licence after conviction for a driving offence) but the reasoning in that case has equal application here. I am satisfied that s 20(1)(a) of the Supreme Court Act does not entrench a right of appeal from the Magistrate’s decision in the present case.
27․The reasoning in Burow applies with equal force to s 48A of the Australian Capital Territory (Self-Government) Act. The appellant’s argument would hold that, notwithstanding the carefully articulated constraints on appeals from the Magistrates Court set out in the Magistrates Court Act, there remains in s 48A a separate, unguided and unconstrained right of appeal that enables this Court to “right any wrong” (cf Kelly v Apps at [18]). In addition to the force of the reasoning in Burow, a further reason for rejecting that argument is that, as noted by Mossop J extra curially in his text, The Constitution of the Australian Capital Territory (The Federation Press, 2021) at p 204, “whatever s 48A does, it is an entrenched provision not susceptible to amendment by the Legislative Assembly”: Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322 at [77].
28․The interpretation contended for by the appellant, which in effect holds that there is no decision from which an appeal does not lie to this Court, would tend to undermine the legislature’s prerogative to determine the scope of the Court’s appellate jurisdiction. I do not accept that interpretation. I am not persuaded that there is any right of appeal entrenched in s 48A of the Australian Capital Territory (Self-Government) Act or s 20 of the Supreme Court Act.
29․For those reasons, I am satisfied that the appeal is incompetent and must be dismissed.
Court’s supervisory jurisdiction
30․Absent any right of appeal, the only remedy available to the appellant is to invoke the Court’s supervisory jurisdiction. As already noted, the relief sought is framed in terms suggesting that is what the appellant intended to seek.
31․The Court’s power to grant relief by way of prerogative order is recognised in s 34B of the Supreme Court Act. The term “prerogative order” is defined to include “an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of mandamus, prohibition or certiorari”. The Court may also be taken to have inherent jurisdiction to grant declaratory relief in a proper case, in accordance with the principles stated by the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; and see DPP v Gorman [2024] ACTSC 233 at [8]. However, it is difficult to see how a declaration would afford any protection to the appellant in the present case over and above the prerogative orders available under s 34B. This is not really an Ainsworth case.
32․In any event, the important point made by the respondent is that relief of that kind would fall within the Court’s original, supervisory jurisdiction rather than its statutorily conferred appellate jurisdiction. The nature of the prerogative orders was explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 175:
[w]here available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made.
33․The distinction is fundamental. As submitted by the respondent, an application for a writ of certiorari is determined by reference to the legality of the order or decision. A prerogative order will only be made where the court is satisfied that the primary tribunal fell into jurisdictional error or error on the face of the record. While there can be overlap between a review of the legality of a decision and the correction of error on appeal, the different mechanisms of review invoke the exercise of fundamentally different kinds of jurisdiction.
34․At the hearing, I raised the question whether the appellant should be given an opportunity to cure the incompetency of the appeal by making an oral application for leave to commence judicial review proceedings, in effect converting the appeal to an application in the Court’s original jurisdiction. The respondent opposed that course for several reasons.
35․First, the respondent relied on the fact that they drew the appellant’s attention in advance of the hearing to the issues discussed in this judgment and the need to commence review proceedings but the appellant declined to adopt that course.
36․Secondly, again despite having the deficiency drawn to her attention, the appellant took no steps to join the ACT Children’s Court, which would be a necessary defendant to any such proceedings.
37․Thirdly, the respondent submitted that any such application would be without merit because the appellant has not identified any error that would amount to jurisdictional error or error on the face of the record.
38․Notwithstanding the force of the first two points, I would have been prepared to give the appellant an opportunity to rectify the process if there was merit in her central contentions concerning the Magistrate’s decision. Accordingly, it is appropriate to determine this issue by reference to the respondent’s third point, that is, by considering whether an arguable case for judicial review is disclosed.
Whether the decision entailed error of a relevant kind
39․As noted above, in order to obtain prerogative relief, the appellant would have to show jurisdictional error or error on the face of the record.
40․The errors specified in the notice of appeal are:
(a)the Learned Magistrate made an error of law in determining that the proceedings against the applicant were not doomed to fail;
(b)in finding that the proceedings against the appellant were not an abuse of process, the Learned Magistrate failed to exercise his jurisdiction; and
(c)the Learned Magistrate’s decision was otherwise contrary to law.
41․As to the first ground, the arguments put on behalf of the appellant do not establish that the proceedings are doomed to fail. On the law as it presently stands, the appellant is liable to be prosecuted. That is the law that governs the proceedings. The fact that the law is to change on a future date does not invalidate the law as it presently stands. The Magistrate was entitled and indeed obliged to apply the existing law.
42․An aspect of the appellant’s contention that the prosecution is an abuse of process is that the legislation that will raise the age of criminal responsibility reflects the recognition, based on empirical research, that children under 14 are incapable of forming criminal intent. That is not entirely correct. The new statutory regime will still allow for children between 12 and 14 to be prosecuted for a narrow range of very serious offences, provided it can be proved that the child knows their conduct is wrong. This indicates that the legislation does not make an unqualified concession to an empirical fact but rather reflects a policy decision. In any event, the determinative consideration is the fact that, until the new law comes into force, the courts are obliged to apply the existing law.
43․The complaint sought to be made by the second ground is unclear. The Magistrate had jurisdiction to determine the application for a stay and he exercised that jurisdiction. As the point was developed in oral argument, it came close to a complaint that his Honour failed to put an end to a prosecution that was unfair to the extent of amounting to an abuse of process. If that is the point that was sought to be made, it faces two difficulties.
44․First, for the reason already explained, the decision to prosecute the appellant cannot be characterised as an abuse of process. Like the Magistrate, the Director of Public Prosecutions is entitled and indeed obliged to make her decisions in accordance with existing law.
45․Secondly, to the extent that the submission invites judicial supervision of the decision to prosecute, it overlooks the prosecutorial discretion and the separation between the prosecutorial function and the judicial function. As stated by the High Court in Magaming v The Queen [2013] HCA 40; 252 CLR 381 at [20]:
It is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.
46․The third ground does not raise any separate issue.
47․Separately, the appellant relied on the decision of this Court in Hudson v ACT Magistrates Court [2014] ACTSC 192; 9 ACTLR 295 as an example of jurisdictional error in a decision concerning an application for a stay. In that case, Mossop J (then a Master) held at [75] that a Magistrate had exceeded his jurisdiction because he permanently stayed criminal charges when he had no power to do so. It was submitted that a refusal to grant a stay when a basis for granting a stay is established might equally amount to jurisdictional error. As a matter of logic, I do not accept that submission, but in any event, for the reasons I have explained, a basis for granting a stay is not established.
Orders
48․For those reasons, I make the following order:
(1)The appeal is dismissed.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 13 December 2024 |
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