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 said that s 20 of the Supreme Court Act 1933 (ACT) gives the Supreme Court jurisdiction, on the principle in Kelly v Apps (2000) 98 FCR 101. For the reasons set out in Sleiman v Murray (2009) 231 FLR 224 (at 230), I would respectfully not follow that decision.
Part 3.6 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), especially s 114, provides for the whole of such proceedings to be completed in the Magistrates Court. In the Supreme Court, criminal proceedings must be commenced by indictment: W v The Queen (2001) 115 FCR 41, esp (at 63-4) per Whitlam J (with whom Madgwick J agreed). There can be no indictment charging a summary offence. See, for example, R v Kingston (1904) 24 NZLR 431 (at 438).
In some jurisdictions, the Supreme Court is given by statute jurisdiction over summary offences: see Criminal Procedure Act 1986 (NSW) s 246. In this Territory, that has been done to a very limited extent where s 68D of the Supreme Court Act provides:
68D(1) The court may, at the conclusion of the trial of an accused person for an indictable offence, deal with any related summary offence with which the accused person has been charged, if the court considers that it is in the interests of justice.
(2)The court shall only deal with a related summary offence with the consent of the accused person.
(3)The court may deal with a related summary offence –
(a)on its own initiative; or
(b)on the application of the accused person; or
(c)on the application of the prosecutor.
(4)The court may deal with a related summary offence with which an accused person has been charged even though it is not doing so in relation to a related summary offence with which another accused person in the same proceedings is charged.
It appears, by reference to his Honour’s annotations on the Magistrates Court bench sheets, that the Learned Magistrate purported to rely on this provision to “transfer[]” the charges to the Supreme Court. In my view, his Honour had no power to do so. There was no provision in either the Magistrates Court Act nor the Supreme Court Act empowering such a transfer. Certainly the Learned Magistrate did not refer to any source of power for this purported order. As a nullity, the “transfer[]” probably did not remove these charges from the Magistrates Court.
Quite properly and understandably, when the Director of Public Prosecutions came to file a draft indictment and case statement (in accordance with directions made under s 4732 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules)) the only charge on the indictment was the charge on which Mr Hill was committed for trial set out at [1] above.
The trial came on for hearing on 2 February 2010. Mr Hill had elected for trial by judge alone. On 2 March 2010 he was convicted of the offence: R v Hill [2010] ACTSC 18.
On the last day of the trial, 4 February 2010, the issue of the summary charges was raised. As was mandated by s 68D(2) of the Supreme Court Act, the Learned Trial Judge announced that he would only deal with the matters with the consent of the accused. The accused did not consent. His Honour then ordered that the charges be remitted to the Magistrates Court. If they were validly before his Honour, about which there must be considerable doubt, then he was merely exercising a power given under s 68F of the Supreme Court Act which provides:
The Court may at any time, remit a related summary offence being dealt with under this Part to the Magistrates Court.
If they were not validly before his Honour, then there was no power for them to be dealt with in the Supreme Court and it would appear that his Honour had an inherent power to remove them from his list and, insofar as necessary, refer them back to the Magistrates Court for hearing and determination, from where they should never have been removed and quite probably never were removed.
The matter has now been agitated before me because Mr Hill has been committed to this Court on other matters and when they came before me at the usual directions hearing under r 4732 of the Court Procedures Rules, this file was also before me and I was asked to cause such steps to be taken as may be necessary to have the summary matters returned to the Magistrates Court so that they could be heard and determined as was required. I adjourned to consider the position.
It is clear that on 4 February 2010, Gray J made an order remitting the summary matters to the Magistrates Court. It appears, however, that no party considered it necessary to take out a formal order. A prescribed form of order is available: Form 4.2 (AF2006-376). I cannot find on the Court file a bench sheet which may have recorded the order.
Accordingly, it is not surprising that no action has been taken to resolve this issue since there was nothing on which the Supreme Court Registry would rely to take action and since the Magistrates Court may well not know that it has had the charges remitted to it, or that they have had them all along, and must, therefore, re-list them or otherwise proceed so that they may be heard and determined.
I will, therefore, give directions to ensure that effect is given to his Honour’s order.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 25 March 2010
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the Accused: Mr S Gill
Solicitor for the Accused: Kamy Saeedi Lawyers
Date of hearing: 18 March 2010
Date of judgment: 25 March 2010
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