South Australia Police v Magistrates Court of South Australia - [2007] SASC 406

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
SOUTH AUSTRALIA POLICE v MAGISTRATES COURT OF SOUTH AUSTRALIA AND ANOR
[2007] SASC 406
Judgment of The Honourable Justice Gray
15 November 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION
Application for judicial review of sentence of imprisonment imposed upon second defendant - order in the nature of certiorari, setting aside the sentence of imprisonment sought - jurisdictional error of want of jurisdiction alleged - information laid against second defendant alleged 16 counts of offending - information included two charges of driving a motor vehicle in a manner likely to cause harm and intending or being reckless as to whether such harm was caused, contrary to section 29(3) of the Criminal Law Consolidation Act 1935 (SA) - these charges each alleged as a circumstance of aggravation, that the offence was committed against a police officer, who was known to be acting in the course of his or her duty - maximum penalty for each offence was seven years imprisonment - section 5(3)(b) of the Summary Procedure Act 1921 (SA) provides that offences for which the maximum term of imprisonment exceeds five years, and to which a category of exemption does not apply, are "major indictable" offences - information incorrectly asserted that these charges were "minor indictable" offences - second defendant pleaded guilty to all charges on the information - sentencing magistrate imposed one sentence of imprisonment of 14 months and fixed a non-parole period of 6 months - whether the sentencing magistrate was in want of jurisdiction when sentencing the second defendant - consideration of scope of jurisdiction of Magistrates Court prescribed by section 9 of the Magistrates Court Act 1991 (SA) - section 9 of the Magistrates Court Act does not provide the Magistrates Court with jurisdiction to hear and determine a charge of a major indictable offence - consideration of jurisdiction of Supreme Court, prescribed by Rule 199 of the Supreme Court Civil Rules 2006 (SA) to make an order for judicial review - consideration of scope of certiorari - whether invalid portions of sentence order were severable from valid portions.
Held: Application allowed - order in nature of certiorari granted, setting aside the sentence imposed on the second defendant - order remitting the matter to Magistrates Court - magistrate acted in want of jurisdiction when sentencing the second defendant - error of jurisdiction permeated whole sentencing process and impacted directly on the once sentence of imprisonment imposed - invalid portions of sentence order not severable from valid portions.
Supreme Court Civil Rules 2006 (SA) r 199 and r 200; Criminal Law Consolidation Act 1935 (SA) s 29(3) and s 5AA(1)(c); Summary Procedure Act 1921 (SA) s 5(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Magistrates Court Act 1991 (SA) s 9, referred to.
Craig v State of South Australia (1994) 184 CLR 163; Public Service Association of South Australia v Federated Clerks' Union of Australia South Australian Branch (1991) 173 CLR 132; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8; Olsen v City of Camberwell [1926] VLR 58, considered.

SOUTH AUSTRALIA POLICE v MAGISTRATES COURT OF SOUTH AUSTRALIA AND ANOR
[2007] SASC 406
Civil
GRAY J.

This is an application for judicial review pursuant to Rule 200 of the Supreme Court Civil Rules 2006 (SA).
The plaintiff, the South Australian Police, seeks an order in the nature of certiorari, setting aside a sentence of imprisonment imposed upon the second defendant, Lee William Colb, by the Adelaide Magistrates Court on 15 May 2007. The application is based on a suggested lack of jurisdiction on the part of the sentencing Magistrate. Mr Colb, through his counsel, consented to the granting of judicial review in the terms sought. The first defendant, the Magistrates Court of South Australia, advised that it would abide the order of the court and did not make submissions at the hearing.
The Evidence
Two affidavits, sworn by Andrew Peter Rodriquez, a solicitor employed by the Director of Public Prosecutions, were filed in support of the application and were received as evidence on the hearing. Those affidavits disclose the facts set out hereunder.
Magistrates Court Proceedings
On 13 December 2006, an information (“the first information”) was laid in the Adelaide Magistrates Court against Mr Colb. This information contained 16 counts alleging offences between 4 and 12 December 2006. Counts 5 and 6 alleged that Mr Colb drove a motor vehicle in a manner likely to cause harm and intending or being reckless as to whether such harm was caused, contrary to section 29(3) of the Criminal Law Consolidation Act 1935 (SA). That section relevantly provides as follows:
Where a person, without lawful excuse, does an act or makes an omission—
(a)     knowing that the act or omission is likely to cause harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
Maximum penalty:
(a)     for a basic offence – imprisonment for 5 years;
(b)     for an aggravated offence – imprisonment for 7 years.
The first information alleged circumstances of aggravation with respect to each of counts 5 and 6:
It is further alleged that the circumstances of aggravation are that the offender committed the offence against a police officer, knowing the victim to be acting in the course of his or her official duty.
This, in each count, appears to be a reference to section 5AA(1)(c)(i) of the Criminal Law Consolidation Act, which provides that an aggravated offence includes an offence committed against a “police officer, prison officer or other law enforcement officer,” in circumstances where the offender knows the victim to be acting in the course of his or her official duty.
The first information incorrectly asserted that counts 5 and 6 were “minor indictable” offences. These offences are properly “major indictable” offences. The maximum penalty in respect of an aggravated offence against section 29(3) of the Criminal Law Consolidation Act is seven years imprisonment. Pursuant to section 5(3)(b) of the Summary Procedure Act 1921 (SA), offences for which the maximum term of imprisonment exceeds five years, and to which a category of exemption does not apply, are major indictable offences. Accordingly, each of counts 5 and 6 involved alleged major indictable offences.
On 15 May 2007, Mr Colb pleaded guilty to all 16 counts on the first information and was sentenced that day. The Magistrate imposed the one sentence of imprisonment of 14 months and fixed a non-parole period of six months with respect to the total sentence. The sentence was backdated to commence on 18 April 2007. The Magistrate provided the following sentencing remarks:
These are serious offences. Parliament has increased the penalties substantially for various of these offences. You have driven in a way that has endangered police and endangered the public. You were on home detention on the first occasion. You have a prior record. You have been to gaol before. I have thought about whether I should suspend any sentence and it is clearly not appropriate for me to do so. I need to reflect the attitude of Parliament to people who endanger the police and others by driving vehicles really badly with a deterrent sentence, and that means actually serving something.
In imposing the sentence I have to note that you’ve been in custody since December for four months and that ran out on 18 April. So any sentence I impose should commence then. In addition you spent 6 days in custody before pleading guilty on 18 December. So the six days will be take[n] into account in sentencing and discounts that I will get to in a moment.
In relation to the gaol sentence, which is the bit you are most interested in, I proceed on this basis:
·For breaching home detention bail – one month;
·Driving at police – three months;
·Driving at police again – three months;
·Manner dangerous – two months;
·Dangerous escape police – three months;
·Illegal use – four months;
·Damage property – three months;
·Damage property again – two months.
The resist police can be the six days notionally you served before 18 December.
I added that up and I will just check my arithmetic; I add it up to 21 months. You get a credit for pleas of guilty of one quarter. When I look at totality no-one can argue that 14 months is too much, so I discount slightly more than a quarter.
You’re going to do 14 months, backdated from 18 April 2007. I imposed a six months non-parole period. I fix that unusually short non-parole period to give you the chance to come out and show that you can get your life together without re-offending having had the benefit – I use the word cautiously – of a substantial gaol sentence to bring home to you the alternative. The sentence started on 18 April, so in six months time from that you will be out, but you will then have a significant non-parole period to work through and if you re-offend, you get to do all the parole that you haven’t served out by the time you re-offend.
You are disqualified for five years, to commence forthwith, 12.58 p.m. today. Do not drive while disqualified, we gaol people for it.
As will be discussed later in these reasons, as a consequence of the misdescription of counts 5 and 6 on the first information, the sentencing Magistrate did not have jurisdiction to sentence Mr Colb on those two counts.
District Court Proceedings
On 13 December 2006, a separate information (“the second information”) was filed in the Adelaide Magistrates Court in respect of Mr Colb. The second information contained two charges, each alleging that on 12 December 2006, Mr Colb drove a motor vehicle in a manner likely to cause harm and intending or being reckless as to whether such harm was caused, contrary to section 29(3) of the Criminal Law Consolidation Act.The second information alleged circumstances of aggravation with respect to each of these counts as follows:
It is further alleged that the circumstances of aggravation are that the offender committed the offence against a police officer, knowing the victim to be acting in the course of his or her official duty.
The second information correctly asserted that each was a major indictable offence.
On 5 April 2007, Mr Colb pleaded guilty to both counts on the second information. He was committed to the District Court for sentence. A judge of the District Court has conducted preliminary hearings in respect of these charges on 7 May, 12, 13 and 26 June, 16 August and 4 September 2007. In the course of the District Court proceedings, the presiding Judge raised the question of the power of the Magistrate to sentence in respect of counts 5 and 6 of the first information.
Submissions of the Parties
Counsel for the Director submitted that having regard to the above circumstances, the appropriate course to be followed was for the entire sentence imposed by the Magistrate on 15 May 2007 be set aside, and the proceedings be remitted to the Magistrates Court. This would then allow an application to be made for the first information to be transferred to the District Court, to be heard before the Judge hearing the two counts on the second information presently before that Court. This would enable Mr Colb to be sentenced in respect of the totality of his offending, having regard to all relevant circumstances. The sentencing Judge, pursuant to his powers under the Criminal Law (Sentencing) Act 1988 (SA), should be obligated to bring to account the time spent by Mr Colb in custody prior to the date of sentence.
As earlier indicated, counsel for Mr Colb consented to the orders and to the proposed procedure set out above. Mr Colb acknowledged his offending, and wished to have all matters resolved at the one time. It might be expected that the fact of Mr Colb’s cooperation in the present proceedings would be put before the sentencing District Court Judge.
Legal Principles
Want of Jurisdiction
As earlier observed, the first information incorrectly asserted that counts 5 and 6 were minor indictable offences. Pursuant to section 9 of the Magistrates Court Act 1991 (SA), the jurisdiction of the Magistrates Court is prescribed as follows:
Subject to the Summary Procedure Act 1921 the Court has jurisdiction—
(a)     to conduct a preliminary examination of a charge of an indictable offence;
(b)     to hear and determine a charge of a minor indictable offence;
(c)     to hear and determine a charge of a summary offence.
Accordingly, the Magistrates Court Act, does not provide the Magistrates Court with jurisdiction to hear and determine a charge of a major indictable offence. Further, the Summary Procedure Act does not provide the Magistrates Court with jurisdiction to hear and determine a charge of a major indictable offence. It can be seen, therefore, that the sentencing Magistrate was in want of jurisdiction when he sentenced Mr Colb in respects of counts 5 and 6 on the first information. The consequences of the want of jurisdiction are discussed below.
Proceedings before magistrates are subject to review by the Supreme Court in the exercise of its general power to control inferior courts. This jurisdiction is prescribed in Rule 199 of the Supreme Court Civil Rules which relevantly provides:
(1)     The Court may make an order for judicial review.
(2)     An order for judicial review is an order of one of the following kinds—
(a)     an order preventing another court or a tribunal that has a duty to act judicially from acting beyond its jurisdiction or in contravention of the requirements of natural justice (prohibition);
(b)     an order setting aside the decision of another court or a tribunal that has a duty to act judicially because of error, absence of jurisdiction, failure to observe the requirements of natural justice or fraud (certioriari);
(c)     an order to compel the performance of a duty of a public nature that cannot be enforced by some other adequate legal remedy (mandamus);
(d)     an order to prevent a person from wrongfully exercising, or purporting to exercise, functions of a public character (quo warranto).
By Rule 199(2)(b), where an inferior court commits a jurisdictional error, including by acting in want or absence of jurisdiction, this Court has power to grant an order in the nature of certiorari.[1] In Public Service Association of South Australia v Federated Clerks’ Union of Australia South Australian Branch,[2] Brennan J, as he then was, observed:[3]
Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it.
[1]    See Craig v State of South Australia (1994) 184 CLR 163 at 175.
[2]    Public Service Association of South Australia v Federated Clerks’ Union of Australia South Australian Branch (1991) 173 CLR 132.
[3]    Public Service Association of South Australia v Federated Clerks’ Union of Australia South Australian Branch (1991) 173 CLR 132 at 142.
The consequence of quashing an order made in want of jurisdiction is that the impugned order is rendered “void” or “null”.[4]
[4] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
It was acknowledged by counsel for the plaintiff, that in cases of partial invalidity, certiorari lies only to quash the invalid part of a decision or order, provided that it is severable. In Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd,[5] Evans J, when summarising the effect of the authorities, observed:[6]
It is beyond question that in proceedings of the nature of certiorari where partial invalidity is established, it is open to quash only the invalid portion of the decision or order, provided it is severable: R v Marshall & Ors; Ex parte Baranor Nominees Pty Ltd [1986] VR 19; R v Hannan; Ex parte Abbott (1986) 41 NTR 37; R v Fenny Stratford Justices, ex parte Watney Mann (Midlands) Ltd (above); R v Elliott; ex parte Elliott (1974) 8 SASR 329; and Cheatley v R (1971-1972) 127 CLR 291 at 308.
[5] R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8.
[6] R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8 at [26].
In this case, the sentencing Magistrate’s want of jurisdiction relates only to counts 5 and 6 of the first information. The sentencing Magistrate had jurisdiction in relation to the other fourteen offences in respect of which he sentenced Mr Colb.
It can be seen that whilst the Magistrate indicated individual terms in respect of each offence, he imposed the one sentence, pursuant to section 18A of the Criminal Law (Sentencing) Act. For this reason, counsel for the plaintiff submitted that the order of the sentencing magistrate was not severable. Reliance was placed on the decision of Supreme Court of Victoria in Olsen v City of Camberwell[7] where the test for severability was articulated in the following terms:[8]
If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject-matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or, in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail.
Although this test refers to severability of legislation, the principle would appear to have equal application to the severability of sentence.
[7] Olsen v City of Camberwell [1926] VLR 58.
[8] Olsen v City of Camberwell [1926] VLR 58 at 68.
Applying this test, I accept counsel’s submission that should the order in the nature of certiorari be made, the sentence imposed by the sentencing Magistrate should be set aside in its entirety.
As a consequence of a setting aside order rendering an impugned order in want of jurisdiction null or void, it was further submitted that this may have the consequence that Mr Colb was falsely imprisoned from the effective commencement date of the sentence. However, counsel for the Director submitted that since Mr Colb’s arrest on 12 December 2006, he has remained legitimately in custody on remand on the second information. This issue is not required to be determined on these proceedings.
Conclusion
This is an appropriate case for granting judicial review. The sentencing Magistrate acted with a want of jurisdiction in respect of two of the 16 counts on the first information. That error of jurisdiction permeated the sentencing process and impacted directly on the one sentence of imprisonment imposed. In this circumstance, it is appropriate to set aside the entire sentence and remit all counts on the first information to the Magistrates Court.

I make the following orders:
-An order in the nature of certiorari setting aside the sentence imposed upon Lee William Colb on 15 May 2007 by the Adelaide Magistrates Court (on Magistrates Court File Number 06-19130).
-An order that all counts on the first information be remitted to the Magistrates Court for re-hearing.