PM v The Queen

Case [2007] HCA 49

HIGH COURT OF AUSTRALIA

GLEESON CJ
KIRBY, HAYNE, HEYDON AND CRENNAN JJ

PM   APPELLANT

AND

THE QUEEN  RESPONDENT

PM v The Queen
[2007] HCA 49
8 November 2007
S217/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

R F Sutherland SC for the appellant (instructed by Fox O'Brien)

L M B Lamprati SC with N F Noman for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

PM v The Queen

Criminal procedure – Crimes and offences by children – Jurisdiction – A child was charged with a "serious children's indictable offence" as well as lesser offences – The child's committal hearing was in the Children's Court of New South Wales, but the proceedings were remitted to the District Court because the Children's Court did not have jurisdiction to deal with the "serious children's indictable offence" – In the District Court the prosecutor did not proceed with the "serious children's indictable offence" – Whether the District Court was required to remit the proceedings back to the Children's Court for determination – Whether the District Court had jurisdiction to deal with charges against a child not involving a "serious children's indictable offence".

Criminal procedure – Crimes and offences by children – Powers of the New South Wales Director of Public Prosecutions with respect to filing an indictment against a child.

Words and phrases – "serious children's indictable offence".

Criminal Procedure Act 1986 (NSW), s 8.
Children (Criminal Proceedings) Act 1987 (NSW), ss 7, 8, 26, 28, 31, 44.

  1. GLEESON CJ, HAYNE, HEYDON AND CRENNAN JJ.   The Children (Criminal Proceedings) Act 1987 (NSW) ("the CCP Act") makes special provision with respect to the conduct of criminal proceedings against children. The CCP Act differentiates between a "serious children's indictable offence" and other indictable offences.

  2. The Children's Court of New South Wales, constituted by the Children's Court Act 1987 (NSW), has jurisdiction[1] to hear and determine proceedings in respect of any offence (whether indictable or otherwise) other than a serious children's indictable offence.  It has jurisdiction[2] to hear and determine committal proceedings in respect of any indictable offence, including a serious children's indictable offence. The CCP Act provides, as the conditions for the exercise of either species of its jurisdiction, that the offence is alleged to have been committed by a person who was a child when the offence was committed and who was under the age of 21 years when charged before the Children's Court with the offence. If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence are to be dealt with summarily[3].

    [1]Children (Criminal Proceedings) Act 1987 (NSW) ("the CCP Act"), s 28.

    [2]s 28.

    [3]CCP Act, s 31(1).

  3. If, as in the present matter, a child is…

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Details
AGLC
PM v The Queen [2007] HCA 49
Case
[2007] HCA 49
Decision Date

CaseChat Overview and Summary

The case of *PM v The Queen* concerned the jurisdiction of the District Court and the Children's Court of New South Wales, as well as the powers of the Director of Public Prosecutions (DPP) in relation to criminal proceedings against children. The appellant, who was 16 years old at the time of the alleged offence, faced two charges. One charge was not a "serious children's indictable offence," while the other was. Following a committal hearing in the Children's Court, the appellant was committed to the District Court for trial on the serious children's indictable offence.

The central legal issues before the High Court were whether the District Court was required to remit the proceedings back to the Children's Court for determination, and whether the District Court possessed jurisdiction to deal with charges against a child that did not involve a "serious children's indictable offence." The court also considered the DPP's authority to file an indictment against a child.

The High Court, in a joint judgment, reasoned that the Children (Criminal Proceedings) Act 1987 (NSW) did not explicitly exclude the District Court or the Supreme Court from exercising jurisdiction over children's matters, unlike the Local Court and the Drug Court. While acknowledging the potential legislative intent to favour trials in the Children's Court for non-serious indictable offences, the court found that the DPP had the power to file an indictment in the District Court, and that the District Court had jurisdiction to hear the charges. The court noted that the existing power to remit proceedings under section 44 of the Act was not engaged in this instance as it was framed in terms of a lack of jurisdiction.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed. (Gleeson CJ, Hayne, Heydon and Crennan JJ in a joint judgment, Kirby J agreeing with the orders in a separate judgment)

Background

Background to the litigation

As appears from the joint reasons in this case[30], the appeal concerns the jurisdiction of the District Court of New South Wales and of the Children's Court of New South Wales. It also concerns the powers of the New South Wales Director of Public Prosecutions ("the DPP") (and his or her delegates) to find indictments and to take proceedings in such courts in respect of criminal offences committed by children.[30]See joint reasons at [6]-[29] setting out the relevant facts and applicable legislation.The facts Initiation of the proceedings: The trial of the appellant arose out of criminal conduct alleged to have occurred in September 2004. At the time of the alleged offence, the appellant was aged 16 years and 9 months. He was therefore a "child" within the meaning of that term in the Children (Criminal Proceedings) Act 1987 (NSW) ("the CCP Act")[31]. The complainant was then a girl aged 14 years. The offence alleged was non-consensual sexual intercourse said to have occurred at a school that the two children attended. By the time the proceedings reached the District Court and the Court of Criminal Appeal, the appellant was 18 years of age[32].[31]See the CCP Act, s 3 (defining "child").[32](2006) 67 NSWLR 46 at 48 [3]. Following a complaint to police, two separate charges were brought in the Children's Court. Each was initiated by the issuance of a court attendance notice[33]. The first charge, dated 18 September 2004, alleged an offence comprising a form of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW). The aggravating feature specified was that the alleged victim was under the age of 16 years[34]. For the purposes of the CCP Act, the offence charged was not a "serious children's indictable offence"[35]. If it had been, a trial otherwise than in the Children's Court would have been required[36].[33]See the CCP Act, s 3 (defining "court attendance notice").[34]See Crimes Act 1900 (NSW), s 61J(2)(d).[35]See the CCP Act, s 3.[36]See the CCP Act, s 28. On 21 October 2004, a second court attendance notice was issued to the appellant in respect of a differently particularised offence under s 61J. It specified a serious circumstance of aggravation, namely, the malicious infliction of actual bodily harm on the alleged victim[37]. This offence fell within the definition of a "serious children's indictable offence". [37]See Crimes Act 1900 (NSW), s 61J(2)(a). A defect in the drafting of the actual notice is not relevant for present purposes: see (2006) 67 NSWLR 46 at 49 [10], 63-65 [71]-[77]. On 12 April 2005, a committal hearing commenced before the Children's Court. There, the DPP sought to withdraw the first charge. This course was permitted, and the Magistrate discharged the appellant with respect to that charge. So far as the second charge was concerned, the Magistrate committed the appellant to stand trial in the District Court. On 18 May 2005, the DPP filed a notice of readiness to proceed to trial in the District Court. Annexed to that notice was a draft indictment stating the offence intended to be tried. In effect, it was the same as the offence in respect of which the Magistrate had committed the appellant for trial.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ CJ, HAYNE, HEYDON AND CRENNAN JJ (dissent) KIRBY J
Had it been the purpose of Parliament to provide such an exclusion (and in particular one addressed to the Supreme Court as the constitutional court of the State) it would have been expected that such exclusion would have been made explicit (in, for instance, s 7 of the CCP Act). Yet no such exclusion is stated[60]. In this context, the exclusion of the Local Court and the Drug Court can be explained on the basis that their powers and status are in general equivalent to those of the Children's Court, whereas the District Court and the Supreme Court are courts of larger jurisdiction and powers.[60]See also joint reasons at [19].Conclusions and remedy The conclusions of McGuire DCJ and of Basten JA are not without a certain attractiveness. Their Honours were endeavouring to give effect to the principle that, save in respect of "serious children's indictable offences", children charged with criminal offences in New South Wales should be tried in the Children's Court. It is possible that this is what Parliament had in mind when it enacted the CCP Act. It is arguable that its general policy in this regard should be observed. It may be suggested that the policy should have been respected by the DPP in circumstances such as the present, even if not strictly obligatory. There would have been ways whereby the DPP could have upheld that policy and avoided depriving the appellant of the significant benefits and protections of a trial in the Children's Court in accordance with the CCP Act. However, in the circumstances of this case, the questions as to whether the District Court lacked jurisdiction and whether the DPP lacked the power to reformulate the charge must be answered in the negative. It would not be difficult for Parliament to provide the District Court with a more ample power to remit proceedings to another court for reasons of convenience and justice to a child offender if it wished to do so. For example, s 44 of the CCP Act could be amended to afford a power of remitter in more general terms, and to address attention to such considerations. But while that section is expressed in terms of a criterion of lack of jurisdiction, it is not engaged in a case such as the present.Orders I therefore agree that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, KIRBY J

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