R v Gregory Dean Hill (No 2) - [2010] ACTSC 24

R v GREGORY DEAN HILL (NO 2)
[2010] ACTSC 24 (25 March 2010)

CRIMINAL LAW AND PROCEDURE – summary jurisdiction of the Supreme Court – summary offences improperly “transferred” to Supreme Court – power to remit – consequential orders.

Prohibited Weapons Act 1996 (ACT), s 5(1)
Legislation Act 2000 (ACT), s 190
Magistrates Court Act 1930 (ACT), Pt 3.6, s 114
Criminal Procedure Act 1986 (NSW), s 246
Supreme Court Act 1933 (ACT), ss 68D, 68F

Court Procedure Rules 2006 (ACT), r 4732

Kelly v Apps (2000) 98 FCR 101
Sleiman v Murray (2009) 231 FLR 224
W v The Queen (2001) 115 FCR 41

R v Kingston (1904) 24 NZLR 431
R v Hill [2010] ACTSC 18

No. SCC 275 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 25 March 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 275 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R

v
GREGORY DEAN HILL

ORDER

Judge:  Refshauge J
Date:  25 March 2010
Place:  Canberra

THE COURT ORDERS THAT:

The ACT Director of Public Prosecutions file in the Registry a draft of the order of the Honourable Justice Gray made on 4 February 2010.

The Registrar is requested to write to the Registrar of the Magistrates Court enclosing a copy of the sealed order of 4 February 2010 and of the reasons for this order and advising that the charges with Magistrates Court numbers CC 2008/6440 and CC 2008/4414 have, if transferred to the Supreme Court, been remitted to the Magistrates Court and they may now be heard and determined in accordance with law.

On 16 July 2008, Gregory Dean Hill was committed by the ACT Magistrates Court for trial in this Court on a charge that he attempted to receive certain stolen property on 1 April 2008, he then knowing or believing that the property was stolen property.

On the same day, the Learned Magistrate purported to “transfer[]” to the Supreme Court two additional charges. These were that on 1 April 2008, Mr Hill possessed a prohibited weapon, namely Oleoresin Capsicum Spray, while not authorised to do so, a charge said to be in contravention of s 5(1) of the Prohibited Weapons Act 1996 (ACT) and a charge of possessing on the same day a prohibited weapon, namely a knuckleduster type dual blade knife while not authorised to do so, a charge also under that same provision, that is the same offence (unauthorised possession of a prohibited weapon).

Though the present penalties for the offence of unauthorised possession of a prohibited weapon is 500 penalty units or imprisonment for five years or both, at the time that Mr Hill was alleged to have committed the offences, the penalty for that offence was 100 penalty units or imprisonment for one year or both. As a result, s 190 of the Legislation Act 2000 (ACT) then provided that it was a summary offence.

The Supreme Court has ordinarily no jurisdiction in respect of purely summary offences. It might be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] ACTSC 24
Decision Date

CaseChat Overview and Summary

Gregory Dean Hill was committed to the Supreme Court of the Australian Capital Territory (ACT) for trial on a charge of attempted receipt of stolen property. Additionally, the ACT Magistrates Court purported to transfer two summary charges of unauthorised possession of prohibited weapons to the Supreme Court. The Supreme Court considered whether it had jurisdiction to hear the summary charges, given that it ordinarily lacks jurisdiction over such matters. The court examined the relevant statutes, including the Magistrates Court Act 1930 (ACT) and the Supreme Court Act 1933 (ACT), and found that there was no statutory basis for the Magistrate's purported transfer of the summary charges to the Supreme Court. The Supreme Court concluded that it lacked jurisdiction to hear the summary charges and ordered that they be remitted back to the Magistrates Court for proper hearing and determination.

The court examined the legal framework governing the jurisdiction of the Supreme Court and the Magistrates Court in relation to summary offences. It found that the Magistrates Court Act provided for the completion of proceedings for summary offences within the Magistrates Court, and that the Supreme Court Act required criminal proceedings to be commenced by indictment, which was not possible for summary offences. The court also noted that while some jurisdictions granted the Supreme Court jurisdiction over summary offences, this was not the case in the ACT except under limited circumstances. The Supreme Court held that the Magistrate had no power to transfer the summary charges to the Supreme Court, and that the purported transfer was a nullity.

Following the trial, on 4 February 2010, the trial judge ordered that the summary charges be remitted to the Magistrates Court as the accused did not consent to their hearing in the Supreme Court. The trial judge exercised his power under section 68F of the Supreme Court Act to remit the summary charges. The matter was brought before the court to ensure that the trial judge's order was given effect, as no formal order had been made. The court issued directions to ensure that the summary charges were returned to the Magistrates Court for proper hearing and determination.

The court ordered that the ACT Director of Public Prosecutions file a draft of the order made by the trial judge on 4 February 2010. The Registrar was also requested to write to the Registrar of the Magistrates Court, enclosing a copy of the sealed order and the reasons for the order, and advising that the charges had been remitted to the Magistrates Court and could now be heard and determined in accordance with law.

Orders