R v Walker
[2011] ACTSC 184
•November 14, 2011
R v BRETT WALKER
[2011] ACTSC 184 (14 November 2011)
MAGISTRATES – jurisdiction and procedure generally – committal – power to commit – whether jurisdiction to commit – no jurisdiction – order for committal quashed.
PROCEDURE – Supreme Court procedure – judicial review – appropriate procedure for setting aside committal order made without jurisdiction.
Crimes Act 1900 (ACT), ss 24, 375A
Court Procedures Rules 2006 (ACT), rr 6, 3554, 4732
Crimes Legislation Amendment Act 2008 (ACT)
Magistrates Court Act 1930 (ACT), ss 90A, 114
Bail Act 1992 (ACT), s 20B
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Klobucar v Curtis and Anor [2009] ACTSC 17
R v Sagacio and Anor; Ex parte Katelaris (1990) 99 FLR 439
W v The Queen (2001) 115 FCR 41
Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342
No. SCC 363 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 November 2011
IN THE SUPREME COURT OF THE )
) No. SCC 363 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
BRETT WALKER
ORDER
Judge: Refshauge J
Date: 14 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The orders made on 10 November 2011 be vacated.
The order of committal made in the Magistrates Court on 31 October 2011 be removed into this Court and be quashed.
The proceedings numbered CC11/4383 in which Brett Walker is the defendant be remitted to the Magistrates Court to be continued in that Court in accordance with law.
Insofar as it is necessary or possible, I dismiss any proceedings in this Court that have been commenced by the purported committal order of 31 October 2011.
On 10 November 2011, I made certain orders in this matter giving effect to my conclusion that this Court had no jurisdiction in respect of the committal purportedly made to the Court in respect of the accused, Brett Walker, and that the Magistrates Court proceedings had not properly been terminated by the purported committal.
Mr Walker, was, on 22 April 2011, arrested and charged with assault occasioning actual bodily harm, a crime under s 24 of the Crimes Act 1900 (ACT).
He appeared in the Magistrates Court on 23 April 2011 and, it appears, bail was refused.
The matter was mentioned a number of times and, on 25 May 2011, Mr Walker entered a plea of not guilty in the Magistrates Court.
The matter was mentioned a further six times before it was listed for hearing on 31 October 2011.
I was informed by Mr C Todd, who appeared for the prosecution, that, on that date, Mr Walker consented to the jurisdiction of the Court at the beginning of the proceedings and the hearing commenced. Oral evidence was given by a prosecution witness. During that evidence, Mr Walker sought and was granted a short adjournment to confer with his lawyers.
Mr Todd informed me that, at the conclusion of the adjournment, Mr Walker indicated that he wished now to plead guilty but declined to consent to the jurisdiction of the Magistrates Court.
Thereupon, the Magistrate committed Mr Walker to this Court for sentence on his plea of guilty.
On committal, and, in accordance with r 4732 of the Court Procedures Rules 2006 (ACT), the matter was listed before me on 10 November 2011.
At that time, Mr Todd submitted that the Court had no jurisdiction to deal with the matter. He outlined the matters referred to above (at [6]) and drew my attention to s 375A of the Crimes Act (a provision inserted by the Crimes Legislation Amendment Act 2008 (ACT), which relevantly commenced on 30 May 2009).
As at the date of committal, that section provided as follows:
375A Withdrawal of consent to summary disposal of case
(1)A consent given by a defendant under section 375(8) to summary disposal of a case can be withdrawn only if the court grants leave under this section.
(2)The defendant may apply to the court for leave to withdraw the consent.
(3)However, an application may not be made if a prosecution witness has given evidence in person at the hearing.
(4)The court may grant leave only if satisfied on reasonable grounds that –
(a)a significant change in relation to the defendant or the case happened after the consent was given; and
(b)granting the leave is justified in all the circumstances.
There was no process issued by the Director of Public Prosecutions to raise this matter before the Court and, it appears, Mr D Perkins, who appeared for Mr Walker, had no notice of the application that was orally made. It was not entirely clear what order was being sought by the prosecution and on what legal basis.
Mr Perkins, however, did not object to the informal manner in which the issue was raised and, after some discussion, Mr Perkins agreed that s 375A applied and that the consequence was that no committal had legally been effected.
As there was no evidence before me, I indicated to Mr Perkins that I could only proceed to dispose of the matter on that day if he made formal admissions as to the facts stated by Mr Todd, namely that:
(a) there had been a consent to jurisdiction under s 375(8) of the Crimes Act;
(b) oral evidence had then been given by a prosecution witness;
(c) Mr Walker had purported thereafter to withdraw his consent to jurisdiction.
Mr Perkins indicated that those matters were admitted.
The consent given to the Magistrates Court by Mr Walker as referred to above (at [6]) had given that Court jurisdiction to hear and determine the charge summarily under s 375(9) of the Crimes Act. Thus, the hearing having commenced, the Court was obliged to proceed with the hearing. Having embarked on the hearing of evidence, s 114 of the Magistrates Court Act 1930 (ACT), required the Court to hear the evidence and convict Mr Walker, dismiss the information or make an order under s 114(3)(b) of that Act.
Of course, the Court could, at any time, accept a plea of guilty from Mr Walker and proceed to sentence him or proceed under s 90A(7) of the Magistrates Court Act.
Section 90A of the Magistrates Court Act, which applied in this case by virtue of s 375(13) of the Crimes Act, authorises a magistrate to commit a defendant to this Court for sentence. Section 90A(7)(b)(i), however, requires that it “not appear to the court that it is proper to deal with the case summarily”. In order to decide that, s 375(11) of the Crimes Act sets out particular matters to which the court must have regard.
In this case, however, the learned Magistrate did not consider and, indeed, was not asked to consider, whether it was proper that the charges be dealt with summarily. His Honour did not consider the matters set out in s 375(11) of the Crimes Act. These were, it seems to me, jurisdictional facts on which the power to commit depended. See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651.
Accordingly, there was no power for the Magistrates Court to commit Mr Walker to this Court for sentence, as it purported to do, or, indeed, for trial. Thus, the purported committal was not effective and, accordingly, did not give this Court jurisdiction to deal with the matter.
As the Court had no jurisdiction, it would have been undesirable for me to deal with the matter by, for example, making orders under s 4732 of the Court Procedures Rules 2006 (ACT), or, indeed, under the Bail Act 1992 (ACT), for the jurisdiction of the Court had not been enlivened under s 20B of the Bail Act 1992 (ACT).
The question, then, is what step I should take. In Klobucar v Curtis and Anor [2009] ACTSC 17, Higgins CJ remitted proceedings to the Magistrates Court which, his Honour held, had been “erroneously” committed. It is not clear that the committal order in that case was, as here, beyond jurisdiction or just made in error.
The distinction is important, as explained by Kelly J in R v Sagacio and Anor; Ex parte Katelaris (1990) 99 FLR 439, for here the learned Magistrate had no jurisdiction to commit Mr Walker, it was not that his Honour had made an error in the exercise of a jurisdiction that his Honour actually had.
The orders I made on 10 November 2011, however, may not have properly disposed of the matter. I first found that this Court had no jurisdiction as there had been no valid committal. That, it appears to me, is the correct position.
I then purported to dismiss the proceedings in this Court. That, however, is problematic for it is not at all clear what proceedings were before the Court. Presumably, some proceedings were before the Court for r 4732 of the Court Procedures Rules gave the Court power to make certain orders. Similarly, s 20B of the Bail Act also gives the Court certain powers in respect of bail, though that was not in issue in these proceedings. Ordinarily, however, the full jurisdiction of this Court otherwise is only enlivened, even after committal, by the filing or presentation of an indictment: W v The Queen (2001) 115 FCR 41. Accordingly, my dismissal may not have been effective. It does seem to me, however, that whatever proceedings were in this Court should be dismissed. I shall make an appropriate order. This matter could be resolved if this Territory had a criminal procedure act as is now common in other Australian jurisdictions.
I then noted that the proceedings in the Magistrates Court remained on foot and should continue. It is not clear what effect, if any, such a noting would have had.
I did what I did based on a view that the order of committal, being an order of an inferior court and beyond power, had no effect and that, logically, this meant that the proceedings were still on foot in the Magistrates Court.
As McHugh JA (as his Honour then was) said (at 357) in Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
Reflection has led me to the view that it is necessary for me, however, to quash the order for committal, which was beyond power. It has, for example, not been ignored, as McHugh JA suggested could be done, and, indeed, has been acted upon as Mr Walker’s appearance before me shows. I can quash the committal order on an application for an order in the nature of certiorari under r 3554 of the Court Procedures Rules.
Accordingly, I consider that it is appropriate for me to proceed under r 6 of the Court Procedures Rules to dispense with so much of the rules as would prevent me from proceeding to make an order in the nature of certiorari immediately to quash the committal order made by the learned Magistrate.
As a result, I will vacate the orders made on 10 November 2011 and make orders in the nature of an order of certiorari.
I note that the matters involving Mr Walker were listed before the Magistrates Court on 29 November 2011 and I expect the matters to be progressed at that time.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 14 November 2011
Counsel for the Crown: Mr C Todd
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr D Perkins
Solicitor for the defendant: Darryl Perkins & Associates
Date of hearing: 10, 14 November 2011
Date of judgment: 14 November 2011
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