Rigby v RD

[2022] NTCA 3

CITATION:Rigby v RD [2022] NTCA 3

PARTIES:RIGBY, Kerry Leanne

v

RD

TITLE OF COURT:  NORTHERN TERRITORY COURT OF APPEAL

JURISDICTION:  APPEAL from SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:No. AP 9 of 2021 (22010977)

DELIVERED:  26 May 2022

HEARING DATE:  26 May 2022

JUDGMENT OF:  Grant CJ, Barr and Burns JJ

REPRESENTATION:

Counsel:

Appellant:M Aust

Respondent:  A Abayasekara

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    C

Number of pages:  4

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Rigby v RD [2022] NTCA 3

No. AP 9 of 2021 (22010977)

BETWEEN:

KERRY LEANNE RIGBY

Appellant

AND:

RD

Respondent

CORAM:GRANT CJ, BARR and BURNS JJ

REASONS FOR JUDGMENT

(Delivered ex tempore on 26 May 2022)

THE COURT:

1. This is an appeal from a decision of the Supreme Court in answer to a special case stated for its opinion pursuant to s 60 of the Youth Justice Act 2005 (NT).

2. In broad terms, the questions of law reserved for the Supreme Court were whether s 67 of the Youth Justice Act confers power on the Youth Justice Court to dismiss a charge on the basis of unfitness to plead; or whether, in the alternative, s 64A empowers the Court to dismiss a charge on the basis of a report on the youth’s mental condition provided in pursuance of s 67 of the Youth Justice Act.

3. The Supreme Court answered the first question in the negative and the second in the affirmative.

4. This was not a matter in which the answers to the questions of law reserved would have determined the outcome of the prosecution action.  Rather, the answers to those questions did not, either as a practical matter or as a matter of legal effect, finally dispose of the rights of the parties. 

5. The statement of the case was directed to settling a preliminary point of law for guidance in the subsequent conduct of the hearing and the ultimate determination, and was not directed to creating or affecting immediate rights.  The answers were ‘advisory’ in that sense, but the Youth Justice Court was required by precedent and hierarchy to accept and apply those answers once given.

6. However, there is at this point in the proceedings an issue as to whether the appeal to this Court involves a purely advisory opinion and a purely hypothetical question.  If it does, discretionary considerations militate against the entertainment and determination of the appeal.  That is so even allowing for the fact that Territory courts are not constitutionally restricted to the exercise of exclusively judicial powers and functions.

7. The exercise of that discretion will depend largely on whether there remains a matter pending in the Youth Justice Court or the Supreme Court involving the rights and liabilities of the parties.

8. In the present matter, there is not. That is because the respondent ultimately pleaded guilty in the Youth Justice Court to the relevant charges prior to the delivery of the answers to the questions of law by the Supreme Court, and the matter was ultimately determined other than by the dismissal of the charges pursuant to s 64A of the Youth Justice Act. 

9. In addition, s 64A of the Youth Justice Act was amended after the reservation of the questions of law in a manner which bore on the answers to those questions, and the Supreme Court did not have the benefit of submissions from the parties concerning the effect of that amendment.

10. For these reasons, the appeal from the decision of the Supreme Court delivered on 10 December 2021 in answer to the special case stated for its opinion is dismissed.  This dismissal does not reflect any determination by this Court that the Supreme Court’s answer to the second question was correct in law, in relation to the operation of the legislation either at the time the questions were reserved or at the time the answer was given.

11. Although it is obviously a matter for the legislature, it is difficult to understand why, when the constructional issue had been squarely raised by the decision of the Youth Justice Court in Firth v DS (2020) NTYJC 18, the subsequent amendments to s 64A were not framed in a manner which clearly resolved the ambiguity and uncertainty in its scope and operation. It is also difficult to understand why the Youth Justice Act does not contain a clear and express regime for dealing with questions of fitness to plead when it is determining matters summarily.

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