Preston-Stanley v ACT Magistrates Court
[2014] ACTSC 313
•25 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Preston-Stanley v ACT Magistrates Court & Anor |
Citation: | [2014] ACTSC 313 |
Hearing Date(s): | 26 September 2014 |
DecisionDate: | 25 November 2014 |
Before: | Mossop M |
Decision: | See [45] |
Category: | Principal Judgment |
Catchwords: | PRACTICE AND PROCEDURE – constitution of Magistrates Court – appointment of special magistrate ending after finding offence proved – whether different magistrate able to determine sentence |
Legislation Cited: | Magistrates Court Act 1930 (ACT) ss 4, 5A Justice and Community Safety Legislation Amendment Act 2013 (No 4) (ACT) |
Cases Cited: | Australian Securities and Investments Commission v Forge [2007] NSWSC 1489 Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390 |
Parties: | Sam Preston-Stanley (Plaintiff) ACT Magistrates Court (First Defendant) Alex Tove Matthew (Second Defendant) |
Representation: | Counsel: Mr M Reardon (Plaintiff) Mr M Toole (Second Defendant) |
| Solicitors: ACT Director of Public Prosecutions (Plaintiff) Legal Aid ACT (Second Defendant) | |
File Number(s): | SC 295 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 18 June 2013 Court File Number(s): CC2012/8820 |
Introduction
The second defendant was a defendant in criminal proceedings conducted in the Magistrates Court. After a contested hearing a special magistrate (”the Special Magistrate”) found an offence of damaging property contrary to s 403 of the Criminal Code 2002 (ACT) proven. Following that finding the proceedings were adjourned on several occasions for various reasons and, before the second defendant was sentenced for the offence, the Special Magistrate’s commission expired. The matter subsequently came before the Chief Magistrate who ruled that it was not open to sentence the second respondent on the basis of the finding of guilt earlier recorded. Because of that conclusion the Chief Magistrate directed that the matter be reheard. The issue on this application for judicial review is whether or not that conclusion was correct. Is it open for the Magistrates Court to sentence the second defendant when it is constituted by a different magistrate to the magistrate that constituted the Court when the finding of guilt was made?
Background
On 6 November 2012 the second defendant appeared in the Magistrates Court in relation to two charges of damaging property contrary to s 403(1) of the Criminal Code (charge numbers 8820 and 8821). Pleas of not guilty were entered on that date.
On 10 April 2013, the second defendant consented to the proceedings being dealt with summarily under s 375 of the Crimes Act 1900 (ACT). She pleaded guilty to charge 8821 but disputed the facts.
Charge 8820 proceeded to a contested hearing before the Special Magistrate on 14 June 2013. It continued on 17 June 2013 and the Special Magistrate found the charge proved.
Charge 8820 was then adjourned until 18 June 2013, a date upon which the disputed facts hearing for the purposes of sentencing on charge 8821 was listed. On that date an amended statement of facts was tendered in relation to charge 8821 with the effect that a disputed facts hearing was no longer required.
The second defendant appealed to the Supreme Court in relation to the finding of guilt made in relation to charge 8820. Notwithstanding the capacity of such an appeal to fragment the proceedings in the Magistrates Court such a course was compelled because time starts running for the purposes of an appeal from the finding of guilt: see R v Meyboom (2012) 256 FLR 450. The appeal was dismissed for want of prosecution on 20 February 2014. Between July 2013 and 15 May 2014 the proceedings were before the Magistrates Court on nine occasions, the details of which are not necessary to record except for the fact that the proceedings were not finalised.
On 15 May 2014 the term for which the Special Magistrate had been appointed ended.
On 21 May 2014 the proceedings came before the Chief Magistrate. During the course of the hearing her Honour said:
Noting that charge number 8820 of 2012 is a matter in which former Special Magistrate Lunney was part-heard, I understand that the authority of the High Court is that it is not appropriate then that matters be finalised by another magistrate. However, in the light of the history of the matter, I would invite your client to indicate whether or not in the circumstances, she is prepared to enter a late plea of guilty, or would wish to have the matter reheard.
The solicitor for the second defendant indicated that his client was not willing to enter a plea of guilty.
The Chief Magistrate then said:
That was proved by Magistrate Lunney, but not sentenced. Magistrate Lunney no longer holds commission as a magistrate. It’s my understanding that based on High Court authority another magistrate cannot sentence on that basis, and therefore that will need to be reheard.
The bench sheet from 21 May 2014 recorded:
Cannot proceed to sentence – Lunney M [part heard] – no longer appointed
On 27 May 2014 the matter was again before the Chief Magistrate. In a discussion with the prosecutor then appearing her Honour made it clear that she had already made a ruling on the issue and that in her view there was no power in the Magistrates Court to continue the proceedings on the basis of the earlier finding of the Special Magistrate but instead that the matter would need to be reheard. Her Honour pointed to the fact that any power exercised by the Court had to be legislatively granted and that s 5A, which allows the continuation of civil matters before a different magistrate, had no equivalent in relation to criminal matters. Her Honour referred to the decisions of the High Court in Brennan v Brennan (1953) 89 CLR 129, The Queen v Lewis (1988) 165 CLR 12, and of the Court of Appeal in Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390. In the light of these authorities her Honour considered that the Court was bound to have the particular matter reheard.
Having regard to what she said on 27 May 2014 and the terms of the bench sheet from 21 May 2014 it is apparent that her Honour considered that on 21 May 2014 she had made a formal ruling to the effect that she could not proceed to sentence on the basis of the finding of Special Magistrate that the offence was proved. If this ruling was incorrect then it amounted to a refusal to exercise the jurisdiction of the Court. To mistakenly deny jurisdiction is a jurisdictional error attracting a writ of certiorari: Edwards v Santos Ltd (2011) 242 CLR 421 at [46].
Authorities
It is important at the outset to distinguish between the question of whether a judicial officer constituting a court has jurisdiction to hear a matter which has, in part, been heard by another judicial officer and the question whether or not doing so is appropriate or involves appellable error. In the present case it is necessary to decide the former issue not the latter. That is because the Chief Magistrate refused to exercise jurisdiction because the Court had no jurisdiction to sentence the second defendant on the basis of the finding of guilt made by the Special Magistrate. It was not a question of considering whether, having regard to all the circumstances of the case, it was appropriate for that course to be adopted but rather, simply, whether there was power to do so.
The distinction between the existence of power or jurisdiction on the one hand and the appropriateness of a reconstitution on the other is made clear by the decision of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390 at [34]-[49]. In that case the Court of Appeal surveyed the authorities in relation to the circumstances in which it was permissible for one first-instance judge or tribunal to make a decision concerning proceedings that another judge or tribunal had commenced to hear but had been unable to continue to hear. Even though Bakarich involved the reconstitution of the Court of Appeal, their Honours considered that the decisions surveyed could illuminate what, if any, limitations on reconstitution there were simply by virtue of being a court. The Court recognised that if a statute specifically required the same judges to be present during the whole of the proceedings then that provision must be complied with. Conversely, if the statute expressly permitted substitution then a different judge could complete the case in the circumstances permitted by the statute: [35]. Having surveyed the authorities their Honours concluded at [49]:
These cases concerning reconstitution of a first instance Tribunal show that there are circumstances in which it could sometimes be irregular, to an extent of justifying setting aside on appeal, for a first instance decision to be reached by one judge completing a proceeding that had been begun by another judge … However, what is of particular relevance for the present decision is that those cases also show that, except when there is a statutory prohibition on adopting such a course, it is not inherently impossible for one judge of a superior court to complete a legal proceeding that has been begun by another judge of that court.
For present purposes, the important qualification in that statement is that it is limited to superior courts. The Magistrates Court is an inferior court in relation to which different considerations may apply.
In performing the survey of the authorities the Court in Bakarich referred to the decision in R v Pepper [1921] 3 KB 167. The decision, which is a refreshingly brief one, involved circumstances analogous to the present case. A prisoner was convicted at Borough Quarter Sessions but sentence was postponed pending the hearing of an appeal to the Court of Criminal Appeal. The appeal was dismissed. The Recorder having died before the next Quarter Sessions, the Court of Criminal Appeal was called upon to decide whether there was jurisdiction to pass sentence. Chief Justice Lawrence said:
With regard to the sentence upon Pepper, that was put off till the next Quarter Sessions. It is a matter of great regret that the learned Recorder who presided at the trial has died in the interval, but in our view the next court of Quarter Sessions presided over by his successor is entitled to pass sentence upon Pepper. We think that a copy of the shorthand note of the trial which has been before us should be supplied to him, and that Pepper or his counsel should have an opportunity of being heard before the sentence is pronounced.
Courts of Quarter Sessions were held in counties or boroughs having a separate Court of Quarter Sessions: see generally Halsbury’s Laws of England (3rd ed) volume 9 at [1032]-[1036]. The establishment of Borough Quarter Sessions was authorised by the Municipal Corporations Act 1882. Courts of Quarter Sessions were inferior courts of record: Ex parte Pater (1864) 5 B&S 299, 122 ER 842; R v Judge, ex parte Isle of Ely Justices [1931] 2 KB 442. In so far as the court was an inferior court it is analogous to the Magistrates Court.
Thus, the decision in Pepper is authority for the proposition that, subject to any statutory provision indicating otherwise, an inferior court exercising criminal jurisdiction has jurisdiction to pass sentence upon a person convicted at a trial before a different judicial officer.
The decision in Pepper has been followed in Australia. In Australian Securities and Investments Commission v Forge [2007] NSWSC 1489 at [31] White J found that it was open to impose civil penalty orders following declarations of contraventions of certain provisions of the Corporations Law by an acting judge whose commission had expired. His Honour referred to the decision in Pepper as follows:
In the same way, where a judge dies after an accused is convicted but before sentence is passed, sentence may be passed by a new judge on the basis of the materials at the trial with such further materials as might be adduced at the hearing on sentence, and with the accused being entitled to be heard before sentence is pronounced (R v Pepper [1921] 3 KB 167 at 168).
In Martinuzzi v Fair Work Ombudsman (2012) 205 FCR 106, Logan J was dealing with a situation analogous to the present. In that case a federal magistrate had found that the appellant had breached an industrial award. That federal magistrate then resigned. A different federal magistrate then imposed penalties and made ancillary orders despite the appellant’s request for a re-trial. In doing so the second federal magistrate rejected the submission that it was not open in the circumstances to proceed to determine the penalty on the basis of earlier findings by a different magistrate: Workplace Ombudsman v Queensland Marine & General Insurance Management Pty Ltd (2010) 245 FLR 369. On appeal the question was therefore raised as to whether different magistrates were able to determine liability and penalty in a proceeding upon the death, retirement or incapacity of the magistrate presiding over the first stage, despite the objection of one of the parties. Justice Logan’s reasons on this point were obiter dicta because his Honour allowed the appeal for a different reason that indicated that the second federal magistrate did not in fact need to determine any penalty. However, his Honour gave full reasons on the reconstitution point which, in my view, are of significant persuasive value.
Justice Logan identified the fact that the Federal Magistrates Act 1999 (Cth) was silent as to whether the Court must be constituted by the same magistrate throughout all stages of the exercise of its jurisdiction in respect of a matter. He therefore concluded that if there was any requirement that the court be constituted by the same federal magistrate throughout all stages of the proceeding in relation to a matter that must be found in some necessary implication relating to the exercise of judicial power. His Honour referred to the decision in Brennan v Brennan (1953) 89 CLR 129 at 136-137 in which the judges indicated that they thought in most cases there were “grave objections” to a judge taking over the case and, even with the consent of the parties, reading the transcript and considering the evidence already given. His Honour reviewed the authorities including Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649, 653; Coleshill v Manchester Corporation [1928] 1 KB 776 at 785-786, Bagshawv Scott [2005] FCA 104, Australian Competition and Consumer Commission v Australian Communications Network Pty Ltd [2005] FCA 988, Educang Ltd the Brisbane City Council [2002] QSC 374 and Carolyn v Hamilton (2001) 3 VR 114 at [61].
His Honour summarised his view as follows:
No “grave objection” of the kind mentioned in Brennan v Brennan was present because such evidentiary controversies as there were had already been resolved and declarations as to contraventions made by Wilson FM in his judgment. Subject only to the contingency of being set aside on appeal, those contravention declarations finally determined, as between the parties, whether or not the Award had been breached in the manner alleged by the Fair Work Ombudsman. They did not depend for their efficacy in law upon the subsequent determination by the Federal Magistrates Court, by whosoever constituted, of the penalties to be imposed or upon the making of any ancillary orders. No such result was expressly dictated by the FMC Act. Nor was it implicit in the exercise of judicial power, as a matter of procedural fairness, that the same judicial officer determine penalty. Declarations as to contraventions already having been pronounced in open court, it would be subversive of the quality of finality which attends an exercise of judicial power for there to be anything provisional about those declarations, derived from a need for the subsequent continuance in office by the Federal Magistrate who had constituted the court for the purpose of deciding whether the contraventions had occurred.
He then referred to the decisions in Pepper and Forge and lastly to the decision in O’Brien v Macskimin (1994) 75 A Crim R 348 in which Martin CJ said at 351:
The distinction that is made is between matters where the proceedings before the court are part-heard and not determined, and there is a change in the constitution of the court, and where a hearing has been completed and a determination made and a separate issue arises, which, although it could be said arise from the earlier proceedings, are based upon a separate set of facts, or in respect of which different considerations are brought to bear.
Logan J concluded by saying that:
[H]owever desirable it may be that the same judicial officer constitutes the court for the purposes of determining both liability and penalty, this course is not mandated either by the terms of the FMC Act or by implications flowing from a need that judicial power be exercised in a procedurally fair way. There are separate, distinct stages in the proceeding.
He identified the situation as being akin to the third proposition summarised by Kirby P in Wentworth v Rogers (No 3), the passage from O’Brien referred to above and the decision of Dixon J in Orr v Holmes (1948) 76 CLR 632 at 637-638.
In R v Smith Ex parte Stellino [1952] QWN 37 a full court of the Supreme Court of Queensland held that a magistrate of the Fair Rents Court could not continue with a hearing relying upon an earlier magistrate’s finding that the Court had jurisdiction because the relationship between the parties was that of landlord and tenant. Macrossan CJ said:
It is clear in law that without some express statutory authority it could not be competent for a hearing of an application of this sort to be made in the piecemeal fashion in which the stipendiary magistrate has ruled it could be heard … If for some reason it was impossible for [the first magistrate] to complete the hearing, then the proper course would have been to have a new hearing before some other magistrate.
The decision in Stellino appears to be inconsistent with the decision in Pepper and Martinuzzi. The conclusion as to whether or not there is in fact an inconsistency may depend upon the degree to which the hearing before the first magistrate could be characterised as a separate and distinct part of the hearing.
Having regard to its closely analogous circumstances and the fact that it has been followed or referred to with approval in the Australian authorities to which I have referred above, I consider that I should follow the decision in Pepper.
Provisions of the Magistrates Court Act
The Magistrates Court Act1930 (ACT) provides, relevantly, that the jurisdiction of the Court may be exercised by a magistrate or by one or more special magistrates: s 4. The rules may permit the jurisdiction of the Court that is exercisable by a magistrate to be exercised by the registrar: s 4(4). Apart from the terms of the s 5A, which I will come in a moment, there is nothing in the Act which states that the Court must be constituted by the same magistrate throughout all stages of the exercise of its jurisdiction in relation to a matter (cf the position of the Tenancy Tribunal considered in Kintella v Scotte [1999] ACTSC 100). Indeed, the situation is that jurisdiction in respect of both civil and criminal matters is exercised by different magistrates or by the registrar during the interlocutory stages of proceedings. Any requirement that all aspects of a final hearing be dealt with by the same magistrate must be one derived by implication either from the statute or from the nature of judicial power.
Section 5A could be the source of such an implication. It provides a specific power, applicable only to civil proceedings, that requires the Chief Magistrate to arrange another magistrate to constitute the Court for the matter if, before the magistrate finishes dealing with the matter he or she “ceases to hold office as a magistrate, or ceases to be available”. Section 5A(4) defines “ceases to be available” as including circumstances where the magistrate is unable to act because of “illness, absence or an inability or unwillingness to deal with the matter”.
It can be argued that because the legislature has inserted this specific provision in the Act in relation to civil matters that there is a negative implication that where there is no such provision, as is the case for criminal matters, there would be no power for a magistrate to continue hearing a matter which had been commenced by another magistrate.
Section 5A was inserted by the Justice and Community Safety Legislation Amendment Act 2013 (No 4). The explanatory statement for the bill indicated that the insertion of clause 5A was a similar amendment to that made to the Coroners Act 1997 (ACT) by the same bill. The statement indicates that the Chief Magistrate had identified the need for the Coroners Act to make express provision for part heard matters where the coroner hearing the matter had ceased to be a coroner. The debates in the Legislative Assembly indicate that the amendment was uncontroversial. The Attorney General, Mr Corbell, leader of the opposition, Mr Hanson, and Mr Rattenbury, member for Molonglo all spoke in favour of the provision (see 8 August 2013 page 2680, 4097, 31 October 2013 4098-4099). The Attorney General said:
... the bill will also improve the operation of the courts by making an amendment to clarify the procedure for the hearing of part-heard matters in the event that a magistrate or coroner becomes unavailable. This is an issue which has been brought to my attention by the Chief Magistrate. Where a magistrate or coroner ceases to hold a position as magistrate or coroner or becomes unavailable to complete the hearing, there is currently no explicit provision dealing with how the matter should proceed.
…
The second magistrate or coroner can then deal with the matter as he or she considers appropriate. This may include hearing the matter part-heard if the magistrate or coroner considers that this is in the interests of justice. This will help to minimise the potential time, expense and stress to the parties, and will assist in the efficient management of the court.
In my view the terms of s 5A, understood in the light of the legislative intention as expressed in the explanatory statement and the speeches of members of the Legislative Assembly, do not give rise to an implication that there is no power in the Court to be reconstituted during the hearing of a matter. Section 5A is a facultative provision designed to provide additional powers and flexibility to the Court and does not take away any power that existed prior to its enactment for the Court to be constituted by a different magistrate for the purposes of part of a final hearing. Section 5A puts beyond doubt the capacity of the Court to be reconstituted at any stage and provides an expansive power to the magistrate who takes over the matter to deal with it in any way that he or she thinks fit. It applies whether or not a discrete portion of the proceedings is being dealt with. Because it expressly gives the power to the magistrate to deal with the matter as he or she considers appropriate, it limits the grounds upon which a case so conducted may be overturned on appeal. Thus, it addresses both the question of jurisdiction as well as how that jurisdiction may be exercised.
My conclusion is therefore that no implication should be drawn from the existence of s 5A that would prevent the Magistrates Court being constituted by a different magistrate at different stages of a criminal proceeding.
Therefore the position is:
(a)there is nothing in the Magistrates Court Act which expressly or impliedly prevents it being constituted by a different magistrate for a distinct and severable part of a final hearing;
(b)the decision in Pepper and those decisions which have followed it are authority for the proposition that, subject to any express provisions in the statute creating it, an inferior court has power to sentence a person following a finding of guilt by the court constituted differently;
(c)I am therefore satisfied that the Magistrates Court did have jurisdiction to sentence the second defendant following the finding by the Special Magistrate that the offence was proved, notwithstanding the Special Magistrate was no longer available to hear the matter;
(d)therefore the Chief Magistrate wrongly denied her jurisdiction to sentence the second defendant.
Discretion
The conclusion that I have reached addresses the question of the jurisdiction or power of the Court to continue dealing with a matter notwithstanding that it is differently constituted. It does not address whether proceeding to sentence on the basis of the Special Magistrate’s finding of guilt may involve an appellable error. That appears to me to be a distinct issue and not one which was addressed when the Magistrates Court declined to exercise the jurisdiction to sentence the second defendant.
It is only necessary to consider the issue because if it was clear in the circumstances of this case that the Court could not complete the sentencing without there being an appellable error by reason of the reconstitution of the Court for the purposes of that exercise, then that would provide a discretionary reason to refuse relief.
The present case does involve a separate part of the hearing process. Sentencing has been accepted as a separate and discrete part of the hearing corresponding to Justice Kirby’s third category in Wentworth v Rogers (No 3). In Pepper the Court considered it a discrete exercise which could be undertaken so long as the sentencing judge had access to the shorthand notes of the trial and counsel had the opportunity to be heard. This approach was followed in Martinuzzi. In Forge, White J dealt with the imposition of penalties following declarations of breaches based on the findings of fact made by the first judge, subject to consideration of the Court of Appeal’s reasons for partially allowing an appeal against the first judge’s decision.
In the present case the transcript of the proceedings before the Special Magistrate is available. The issue in the case was a relatively straightforward contest over different versions of the facts. The issue was whether or not the second defendant had scratched the side of a car. A Mr Storey gave evidence that the second defendant scratched the vehicle with her keys. The second defendant denied that. The Special Magistrate found that there was no challenge to the fact that the scratch was not there earlier and that there was “no explanation at all or even hypothesis of how the scratch could have got there” apart from the evidence given by Mr Storey. For that reason he was satisfied beyond a reasonable doubt that the defendant was guilty. The reasons were brief and did not include comprehensive findings of fact. However, only brief reasons were required in the circumstances because there was only a very narrow issue in dispute.
Having regard to the confined nature of the case, the availability of the transcript for the purposes of sentencing and the capacity for the second defendant to make submissions and, if necessary, lead evidence for the purposes of the sentencing hearing I am not satisfied at this stage that there would necessarily be an appellable error arising out of a sentence imposed by a magistrate who did not make the finding of guilt. As a consequence this does not provide a proper discretionary reason for refusing to grant prerogative relief.
Other arguments
Mr Reardon, who appeared for the plaintiff, advanced a number of additional arguments in support of his submission that the decision of the Magistrates Court should be quashed. In the light of the conclusions reached above, it is unnecessary to address those arguments.
Orders
The plaintiff seeks an order to quash the decision on 21 May 2014 to refuse to proceed to sentencing. The plaintiff also seeks an order under s 16 of the Magistrates Court Act. That section allows the Court, instead of making an order of mandamus, to make an order absolute directed to the magistrate to do an act which the magistrate has refused to do. Having regard to the constitution of this case in which, pursuant to r 3556(5) of the Court Procedures Rules 2006 (ACT), the “ACT Magistrates Court” is the first defendant and the Chief Magistrate, who made the decision to be quashed, is not joined as a party, I think it is more appropriate to make a general prerogative order rather than an order under s 16 directed to a particular magistrate.
No orders as to costs were sought.
The orders of the Court therefore are:
1. The ruling made by the Magistrates Court on 21 May 2014 that the Magistrates Court did not have jurisdiction or power to sentence the second defendant is quashed.
2. Liberty is granted to the plaintiff to apply within 28 days of the date of this order for any further order necessary to give effect to the decision of the Court.
| I certify that the preceding fourty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 25 November 2014 |
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