Stanton v The Queen

[1992] HCATrans 49

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S25 of 1991

B e t w e e n -

ANTHONY JAMES STANTON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Stanton 1 13/2/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992, AT 11.57 AM

Copyright in the High Court of Australia

MR J. PARNELL: If Your Honours please, I appear for the

applicant with my learned friend, MR J.J. CAUCHI.

(instructed by Nikola Velcic & Associates)

MR R.O. BLANCH, QC: If the Court pleases, I apper with my

learned friend, MR A.M. BLACKMORE, for the Crown.

(instructed by the Director of Public Prosecutions

(New South Wales))

BRENNAN J: Yes, Mr Parnell.

MR PARNELL:  If I might just open briefly and then if I

might be permitted to reply to the Crown's

response. It is a case where the applicant has

lost a right given to him by law in these

circumstances, to summarize. He was arres~ed when

he was 20 for matters alleged to have occ' rred when

he was 20 and before he turned 18. By mistake or

otherwise, he was bailed to the local court on all

matters, a court which did not have jurisdiction in

relation to the matters under 18. Eventually the

Director of Public Prosecutions conducted committal

proceedings in that court in respect of those

matters.

The magistrate purported to commit him for

trial to the district court in respect of all

matters. That was a procedure which was void in

relation to the matters in respect of which he was

under 18, and certainly invalid and, I would

submit, void in respect of the stage after

committal following the other matters, and I will

develop that argument later on in the second

argument.

Eventually, after a period of about 15 months,

and at a time when he was 21 and when any

children's court jurisdiction was no longer extant,

he was notified to appear for trial before any

indictments were presented - and in this respect

the indictments did differ slightly from the

committal charges - and before any indictments were

presented the applications which form the subject

of this appeal were made, the application to the

district court for a stay of proceedings and,

subsequently, the appeal to the Court of Criminal

Appeal.

In respect of the actual indictments which

were to be presented, it would be my submission

that in view of the invalidity of the earlier

proceedings - and there may be no argument about

this - they were ex officio indictments in the true

sense; that is to say in respect of the matters

which occurred before he was 18, in no different

situation, in view of the voidness of the

Stanton 2 13/2/92

proceedings, in no different situation than if a
person had been just plucked off the street and

notified to appear for trial and indicted next

Monday morning at Darlinghurst.

BRENNAN J:  I suppose there is this difference, is there

not, and that is that in such a case, having regard

to the decision in the Barton case, it would be

necessary to stay the proceedings until such time

as committal proceedings were held.

MR PARNELL:  I mentioned that, Your Honour, because that is

a factor in respect of these under 18 ones which

takes it right outside the ambit of the matters

which were argued in Barton's case because, as

Your Honours will recall in Barton's case, that was

a case where there had been committal proceedings and for certain reasons they were terminated when

almost complete and the indictments were filed.

This, notwithstanding the proceedings which were void, it is in no different situation, I suggest,

to somebody just being notified off the street to

appear at Darlinghurst next Monday morning for

trial.

In respect of the single matter which is

alleged to have occurred when the applicant was 20,
well, my submission is that the proceedings are

severable there and the application of course goes

to that end, that the proceedings ought to be

stayed and sent back to the court for proper
consideration, having regard to the opportunities

for summary trial.

BRENNAN J:  Now the local court had jurisdiction to commit

the applicant for trial on the count of sexual

intercourse with a child between the ages of 10 and

16, is that right?

MR PARNELL:  The matter which is alleged to have occurred

when the applicant was 20 years of age, that is to

say over 18, was within the jurisdiction of the

local court.

BRENNAN J: That is the count of sexual intercourse with a

child between the age of 10 and 16?

MR PARNELL:	Yes, that is the matter under section 66C.
BRENNAN J:	So the committal in that respect was valid?

MR PARNELL: Well, not in the applicant's submission. In

the applicant's submission, that was a matter in

respect of which there was an option of summary

trial.

MCHUGH J:  Was that the 476 point?

',

Stanton	13/2/92
MR PARNELL: The 476 matter, yes.	It is a little bit

different to the first one. It is a matter in

which the applicant's argument is that the

magistrate ought to have committed his mind to the

course he was going to adopt, or possible courses,

at the outset of proceedings, notwithstanding that

he could have changed his mind during the course of

proceedings.

BRENNAN J: Could you explain that to me. I am not familiar

with the legislation to which you are referring.

MR PARNELL: It is legislation which enables a defendant to

be dealt with summarily, with his consent and the
leader of the court, in respect of matters which
previously could only be dealt with by way of trial

before a judge and jury.

BRENNAN J:  What is the relevant provision?

MR PARNELL: Section 476 of the Crimes Act. It is a matter

which has not escaped the attention of this Court

over the years. It is not a matter which I

respect of similar Victorian legislation, the matter of Hall v Braybrook.

intended to argue today, but back in the 1930s this

McHUGH J: But the accused was legally represented and

nobody seems to have raised the point before the

magistrate.

MR PARNELL: That is the 476 point, Your Honour?

McHUGH J: Yes, the 476 point.

MR PARNELL:  Yes, that is so. In neither case was either

point raised before the magistrate. But I would

like to direct Your Honours' attention to one

aspect of that matter in which I would be

suggesting that the Court of Criminal Appeal fell

into error.

BRENNAN J: But in terms of jurisdiction, did the local

court have jurisdiction to commit the applicant for

trial on the count of sexual intercourse with a

child between the ages of 10 and 16?

MR PARNELL: That is the matter under section 476, yes,

Your Honour. Whereas the applicant could have

requested summary trial, the court could have

refused.

BRENNAN J:  In other words, the committal order is valid in

that respect, but invalid in respect of the 61E - - --

Stanton	13/2/92
MR PARNELL:	No, it is the applicant's submission that the

committal order was not valid because the court did not turn its mind to the opportunity which was open to the accused to obtain a summary trial. What the

applicant's submission is is that the law in New

South Wales at the time required the court to turn

its mind to that point at the outset of

proceedings. That is a matter which is referred

to - - -

BRENNAN J: But section 476(1) says:

the magistrate may require the person to

state -

et cetera, not that he shall.

MR PARNELL:  But notwithstanding, Your Honour, it is a

right.

BRENNAN J: What is a right?

MR PARNELL:  The applicant's submission is it is a right

available to the applicant, a right to be tried

summarily, if he consents and if the court

concedes.

BRENNAN J: It is not a right; at most it is a case where,

if the magistrate asks the question and the person

charged states that he intends to plead not guilty,

and it appears to the magistrate that the case may

be properly disposed of and there is a consent, the

magistrate shall have jurisdiction.

MR PARNELL:  That is a proceeding which can occur at any

time during the course of proceedings, Your Honour.

BRENNAN J: But it did not.

MR PARNELL:  It did not occur, and that is the applicant's

case, that the magistrate at no time applied his

mind to the opportunity of trying this applicant summarily.

BRENNAN J: Yes.

MR PARNELL:  The matter is referred to on page 7 of the

affidavit of Mr Velcic in support of the

application, page 30 of the application book,

Your Honours.

BRENNAN J:  In that respect you say that the local court

exercised by the local court of jurisdiction

miscarried and it had no jurisdiction with respect

to the other charges.

MR PARNELL: That is so, Your Honour, yes.

Stanton	13/2/92
BRENNAN J:	We tl' ~ have a situation where, taking your

argument to the maximum, the orders for committal

were invalid.

MR PARNELL: That is so, Your Honour, yes.

BRENNAN J: What effect does that have upon the jurisdiction

of the district court?

MR PARNELL:  There is no question of the right of the Crown

to indict. That is not in issue. But the

applicant says that it is not an indictment which

proceeded in the ordinary course of events.	In the
ordinary course of events a person would be

committed, in New South Wales the papers would be

considered by the Director of Public Prosecutions,

the Cr-)wn prosecutor would find a bill, and then

some f:esentment would be made at a trial. Now,

that presentment may vary from the actual committal

charge and in that respect it would amount to what

is called an ex officio indictment, as set out in

the Barton case.

But in this case, this is in respect of the

first matter, there were in effect no committal

proceedings. Committal proceedings never took

place because there was just no jurisdiction for

what occurred.

McHUGH J: That is true in a technical sense, but if the

purpose of committal proceedings before the

presentment of an indictment is to enable the

accused to know what case he has to meet, then that requirement has been satisfied in this case, has it

not, as a practical matter?

MR PARNELL:  I would submit, Your Honour, that this is not a

matter for consideration of practicalities. It is

a matter of consideration of legalistics.

McHUGH J: But once you concede that the Crown has got the

right to present an ex officio indictment, then the

question is whether it is an abuse of process for

the court to allow it to be filed. If you have, in

effect, had a committal proceedings, what is the

abuse?

MR PARNELL:  See, the matter goes further than that. The

abuse occurred - one aspect of the abuse occurs in

this respect, that the Crown had this matter for

15 months before any intention or presentment was

made. Now, during the course of that 15 months

this applicant turned 21 and lost forever any

entitlement to be dealt with in the children's
court, with its different range of disposal, one

might say. Now, on that aspect, and it is not a matter which has been pleaded, I concede, but on

Stanton 6 13/2/92

that aspect there is an underlying theme that young

persons be dealt with promptly. It has been an

underlying theme in New South Wales for over

100 years. In (1850) 13 Vic 2, before any

situation of children's courts existed, there was a

Speedy Trial of Juveniles Act passed in this State

which required the speedy trial of all juveniles
and, for the purpose of this appeal, this applicant

was a juvenile between the ages of 18 and 21. That

Act was repealed by the Criminal Law Amendment Act

1883 purely, it seems, because a wide range of

summary trials were offered in that Act. A wide

range of summary trials which eventually it

extended by sections such as 476.

So there is an underlying theme, a palimpsest,

as you might put it, of a requirement for speedy

trials of juveniles. See, it did not occur in this
case. This young person was held without knowing

what might occur until he was over 21. Thereafter

he is denied all access to children's court.

TOOHEY J:  You describe the children's court in terms of a

right to have the matter dealt with summarily, but

is that really the way in which the section is

framed?

MR PARNELL:  I will read the section to you, Your Honour.

Section 31 of the Children (Criminal Proceedings)

Act 1987.

TOOHEY J:  No, I am sorry, I was asking really in relation

to section 476, which you spoke of a right to

summary hearing.

MR PARNELL: That is a right to a summary hearing which is

afforded to adults.

TOOHEY J:  I appreciate that. My question is, is it a

right? I mean the section is structured in terms

that the court may exercise its jurisdiction

summarily if the defendant consents and if the

court thinks that it is appropriate to do so.

MR PARNELL:  I see Your Honour's point there. Perhaps I

might put it it is a right to seek a summary

disposal.

TOOHEY J: Ordinarily these matters arise because someone

complains that they have been dealt with summarily

and that they were not properly informed as to the alternatives available to them, but this is an odd

situation in which the complaint is that the person

was not told that the court had jurisdiction to

deal with the matter summarily.

Stanton 7 13/2/92

MR PARNELL: That is so. See the thrust of all the

decisions in this regard on this particular section

and in the other matter I referred to in relation

to the Victorian case earlier have been as to at

what stage might the court change its mind. That

is as I understand their decisions, that there may
be some indication that a court is dealing with a

matter summarily right up to the time of, perhaps, addresses and then the court can say, no, I am not

going to do this.

TOOHEY J: That is right. They are the sort of problems

that can arise, but you are posing it, Mr Parnell,

in terms of jurisdiction. Why did not the court

have jurisdiction in this case to do what it did?

MR PARNELL:  The court did have jurisdiction to deal with

this matter pursuant to section 476.

TOOHEY J: Notwithstanding its failure to alert the

defendant to the fact that he might consent to
summary trial and the court might thereafter agree

that it was appropriate to deal with the matter in

that way.

MR PARNELL: That is so, Your Honour, but my submission is

that the court did not turn its mind to what

procedure it might adopt at the outset, as required

in the matter to which I earlier referred on

page 30, Grech v Drake. I apologise to

Your Honours, but I hand up copies of that decision which has not been reported anywhere else than in the Petty Sessions Review, notwithstanding that it

appears to be a matter of great public importance

in New South Wales. In my submission it is

important that the inferior courts deal with

matters, a fortiori criminal matters, with some

system.

TOOHEY J: Could I just interrupt you. Is this not the

converse of the situation with which we are

concerned?

MR PARNELL:  No, the situation with which we are concerned

is a case where, in my submission, the magistrate

never turned his mind to offering summary

jurisdiction to this applicant.

TOOHEY J:	I have not had a chance to read this case, but is it a case in which the complaint was that the court exercised jurisdiction summarily without alerting
the defendant to - - -

MR PARNELL:  No, it is the other way round. It is a court

committed for trial without alerting the defendant

to the possibility or the opportunity that he might

be dealt with summarily. Your Honours were - - -

Stanton	13/2/92
TOOHEY J:	I must confess it does not look like that, unless

I am misreading it

MR PARNELL:  I was referring to the passage there:

It is important, however, that the

magistrate apply his mind to that matter at

the commencement of the proceedings.

TOOHEY J: Yes, but what I am putting to you, Mr Parnell, is

that it may be one situation to say that a court

lacks jurisdiction to deal with a matter summarily
without getting from the defendant the requisite

consent and an understanding that the defendant has

alternatives available to him; but the situation we

are concerned with is the court has jurisdiction to

deal with the matter in the way in which it did,

although it might have dealt with the matter

summarily had it obtained the consent of the

defendant and had the court thought it appropriate

to deal with it in that way.

MR PARNELL: Yes, I agree with that, Your Honour.

TOOHEY J: But it is not Grech v Drake, is it? It is the

other side of the coin.

MR PARNELL: That is as I saw Grech v Drake, Your Honour.

It is a matter that requires the magistrate to

"apply his mind ..... at the commencement of the

proceedings". It is the only authority I have been
able to find on that aspect because all the other
authorities are concerned with later stages of the

proceedings.

TOOHEY J:  You can understand that. If the magistrate

purports to act summarily, that he must not do so

without making clear that that is what he is doing

and that the defendant consents to him doing it.

But that is not the situation that we are concerned

with here.

MR PARNELL: That is so, Your Honour, yes.
BRENNAN J:	One thing that perhaps emerges from Grech v

Drake is that it is conceivable that the magistrate

here did turn his mind to the subject and concluded

that it was not a matter that should be disposed of

summarily.

MR PARNELL:  The difficulty there is one cannot reproduce

the judicial mind; it can only be reproduced by

looking at objective facts and, in my submission,

there is nothing in the record which indicates that

the magistrate did turn his mind to it.

Stanton 9 13/2/92

BRENNAN J: But if the magistrate did turn his mind to it,

you would not expect to see anything in the record

if he decided he should not deal with it summarily.

It would only be if he decided he might deal with it summarily that he should go through the

procedure, is it not?

MR PARNELL:  No, my argument on system, in relation to

inferior courts, is this, Your Honour, that - see

it was touched on in one of the earlier arguments

before Your Honours this morning when it was

suggested there ought not to be a summing up by

numbers, if Your Honours might recall. Now, on the

contrary, my submission would be that in the

inferior courts where important procedural matters

are involved courts ought to proceed by way, in

effect, of a check list - something like the judge

does summing up to a jury or counsel do when they

are checking it - and at least enter some details

of that check list on the record. So that an

aggrieved person will have some avenue of

redressing his aggrievement. It just did not

happen in this case. As I say, you cannot

reproduce the mind, only by looking at objective

facts. If they are not there, the inference in my

submission is that the mind was not turned to it.

BRENNAN J:  Mr Parnell, we have your argument that there was

no jurisdiction in the local court in respect of

some of these counts and that in respect of the

last of these counts there may have been

jurisdiction, but subject to 476. So we then come

to the stage of the presentation of the indictment,

which is an ex officio, in your submission. Then

there is an application for stay. Now, if the

indictment was regularly presented, in the sense

that there was power to present it, there was then jurisdiction in the district court to try it. The application for stay was to ensure that no trial

took place. Now, the question then is, was the

decision in exercise of a power not to stay rightly

taken?

MR PARNELL:  In my submission it was not for these reasons,

Your Honour. The reasons given for the refusal to

stay are on page 9 of the judgment of the Court of

Criminal Appeal, which is on page 17 of the

application book. As Your Honours can see, it is

stated to be "the combined effect of the following

considerations". Now, the most important of those

considerations, and the one most relied upon by

references in the judgment, is at the bottom of the

page, point 9, that in effect the accused was

legally represented and no point having been taken,

he is bound by the failure of his legal

representative not to take the point.

Stanton 10 13/2/92

In my submission, that may well be the case in

some forensic or tactical situation; it certainly

would be the case in civil law. I do not back away

from the fact that there are criminal law

authorities that say it is the case in criminal law in forensic situations, but this was not a forensic

situation, this was a jurisdictional situation and

really the situation would not have been any

different whether the defendant there had been

represented or not; the same thing would have

happened. Whether the point was taken or not, he

would have lost this right. This question of the

forensic application was dealt with by Your Honours

in the case of Crown v De Jesus. I hand

Your Honours copies of that judgment. Your Honours

will be familiar with that judgment. It is fairly

recent, I think.

BRENNAN J:  I just wonder whether it really touches the

problem here, though, Mr Parnell. Here the

question was whether the power permanently to stay

should be exercised with the result that there

would never be any curial proceeding with respect

to these alleged offences or whether there should

not, and for the reasons which were set out by the

Chief Justice about this page of the judgment,

about page 17, the Court of Criminal Appeal decided

that there should be a trial. Your argument, if I

understand it, is because he had lost the statutory

benefits to which he was entitled under the

children's Courts Act and under section 476, there

should not be a trial.

MR PARNELL: There should not be a trial. In respect of the

children's court matters, that there should be a

permanent stay because it cannot be retrieved, it

is lost forever - - -

BRENNAN J: Yes, I appreciate you say that is so, and you

say one of two things, I gather: one is that that

is conclusive of whether there should be a trial;

the second is it is an extremely important factor
to take into account in determining whether there

should be a trial or not.

MR PARNELL: That is so, Your Honour. Going back to the

case of De Jesus, Your Honour, that was a matter in
which the intervention of counsel, or the failure

of counsel to take a point was a matter for

judgment, as distinct from jurisdiction. It is

referred to in the last sentence of

Mr Justice Deane's judgment when he refers to

forensic reasons. De Jesus was quite a different

situation to this. This is a matter of

jurisdiction. You cannot concede jurisdiction.

That also is referred to in one of the earlier

arguments this morning.

Stanton 11 13/2/92

BRENNAN J:  We are not really concerned here with

jurisdiction, are we? We are concerned with the

exercise of a power to stay a proceeding in the

district court and the ground on which you say that

power should be exercised is that there was a want

of jurisdiction in the court which purported to

commit.

MR PARNELL: Because that and the actions of the Director in

not indicting until he was over 21 caused a loss

which cannot be retrieved.

McHUGH J: But the Court of Criminal Appeal recognised that

but they weighed against it other factors,
principally the public interest in the prosecution

of the appellant and also the consideration that

even if the applicant had been charged in the

children's court, in all likelihood he woula ;1ave

been committed for trial in any event, and the

court came to the conclusion that there was no

unfairness sufficient to stay the proceedings

permanently. Well, that is a value judgment, is it

not? Does it raise any special leave point?

MR PARNELL:  I submit it is not a value judgment,

Your Honour. Firstly, in relation to the public

interest in the prosecution of the appellant for

crimes alleged to have been committed, that is just

a bald statement, relied upon as a reason. True it

is that earlier in the judgment there was some

discussion on the matter but the discussion did not

go to the balancing required, the balancing of the

societal interest in the prosecution of offenders

and the societal interest in the avoidance of

criminal trials. I am plagiarizing there from a

judgment of Your Honours' Court in Marie some years

ago. But that is what had to be weighed by the

court and it is just stated here as a bald
assertion, "There is a public interest in

prosecution of a crime. If his argument succeeds,

there is no available means now for such

prosecution." Well, that would apply to every case

in this situation. Any time anything like this

occurs in the future, you would not have to go any

further than that. That would apply.

McHUGH J: They are not saying that though, really, are

they? They consider that there has been unfairness

to your client in the sense that he has been

deprived of an opportunity to be dealt with by the

children's court, but then they put other reasons
for coming to the conclusion that there is no

relevant unfairness.

BRENNAN J: At the end of the day your special leave point

has got to be that the Court of Criminal Appeal

Stanton 12 13/2/92

failed to give sufficient weight to the

considerations on which you rely.

MR PARNELL: That is so.

BRENNAN J: That is a fact problem.

MR PARNELL:  My principal point is that it made three errors in relation to the three reasons it gave.

McHUGH J: But that does not make it a special leave point.

MR PARNELL: It indicates, then, that - it goes back then

to - perhaps after I finish this point if I could

just answer the second point that Your Honour made

after that. What happens then is we go back to the

situation this appellant was in at the presentment

of the indictments; being indicted following

invalid proceedings, conducted by the Crown, no

less. There was the intervention of police

authorities, the Crown, a magistrate exercising

local court jurisdiction; it goes back there with a

right to summary trial which he has lost forever.

MCHUGH J:  I do not know that it is a right. He has got a

privilege, has he not? He has a privilege perhaps

to seek such an order, but that is about all, and

he can give his consent to a 476 order.

Mr Parnell, no one probably knows better than you,

but this 476 is something before magistrates every

day or every other day of the week. Every

experienced magistrate would have it in his mind.

The fact that he does not say anything about it

itself is fairly strong evidence that he had

considered it and just did not think it was an

applicable case.

MR PARNELL: See, my submission is it is a matter of public

importance that the inferior courts be directed to

do things with some system and in this case a

system means a check sheet which goes on to the

record. See, otherwise the uninitiated - - -

McHUGH J:  It might equally be said that the profession

should, if they rely on 476, a submission should be

made about it and submit it is a case that should

be dealt with.

BRENNAN J:  It may be that magistrates should be so

directed, but if they should be, it should be done

by the Court of Criminal Appeal of the State.

MR PARNELL:  The Court of Criminal Appeal has failed in this

case.

BRENNAN J: They have taken that into account, the

procedures into account, in exercising a different

Stanton 13 13/2/92-

power which was not one of disciplining of the

magistracy but one of determining whether or not a

case should proceed in the district court, and that

is the nature of the problem.

MR PARNELL:  I wonder if, just before I forget that point,

we could just turn back to the second point of

His Honour Justice McHugh. See, the second point

made, that proceeds on the basis that both matters

would have been heard together whereas there was no

jurisdiction. They would have been heard

separately. The children's court matters would not

have been heard at the same time as proceedings in

the local court. So that point, in my submission,

is completely invalid. True it is, I must concede

this, that in relation to matters in the children's

court, as with 476 matters - and this is the

children's court matter I am talking about - there

is always the opportunity of the prosecuting

authority to present extraordinary material to a
bench to suggest perhaps there ought to be a

committal in this case rather than a summary trial,

but this was not one of those cases. All that

could have been said was, "Oh, this defendant has

been charged with other matters." That would just

be a possibility too far away with which to

endeavour to convince a court to commit for trial.

TOOHEY J: But ordinarily a court grants a stay - let us say

a temporary stay, at any rate - because it feels

that the weight of publicity, for instance, surrounding a particular trial warrants its

postponement for a time or it is conceivable,
although this has not been resolved, that it may be possible to grant a stay where the proceedings have
been so long delayed that the accused is deprived
of the opportunity to get witnesses and the like,

but these things bear upon the fairness of the

trial that is facing the accused. You do not make

any complaint about the fairness of the trial that

is facing the accused, do you? You really complain

about matters that led to the bringing of the

trial.

MR PARNELL:	Only in that - - -
TOOHEY J:	I am not suggesting that that makes the stay

completely inappropriate; I am just questioning the

basis upon which you suggest the stay might have

been granted.

MR PARNELL:  That any future trial will be unfair, in my

submission, because this applicant, if convicted,

will be denied rights to which he was entitled,

that is to say rights to be dealt with under the

children's court legislation.

Stanton 14 13/2/92

BRENNAN J: That is right, and that is a very important

factor in the exercise of the power. But is it

conclusive?

MR PARNELL:	In my submission it is, Your Honour, because, see, there is a question here; this is a matter of
human rights.  The rules to the International
Covenant on the Treatment of Children, it has been
in the news lately, clearly set out that persons to whom juvenile jurisdiction is available,
notwithstanding their age, still fall within the
covenant. It reinforces the children's court
legislation in New South Wales, that children are
not to be sent to prison.  It is now too late, this
applicant having turned 21, for any of the provisions of the Children's Court Act which might
have allowed another court to send this applicant,
if convicted, back to the children's court for sentencing. It is a very important human right.
It is a human right which, in my submission, has
not been seen by the Court of Criminal Appeal
and -
McHUGH J:	You do not seem to put your case in an Attorney-

General v De Keyser's-type point where you say that the prerogative right of the Crown to ex officio indict or the Attorney's has been taken away by implication by the statutory scheme in the Children

(Criminal Proceedings) Act, in other words that

that lays down a statutory regime under which all

children should be dealt with initially under that,

and it is only if the magistrate exercises his

power under section 31(3) that you can deal with

him by way of indictment.

MR PARNELL:  I had not really turned my mind to that

proposition, Your Honour.

McHUGH J:  It just suddenly passed through my mind. I do

not know; there may be no substance in it at all.

special children's court and, subject to an It seems odd that the legislature should set up a	argument about discretion, the Crown could
nevertheless ex officio indict a child.

MR PARNELL: That is certainly a matter which, on

reflection, one might well persuade the Court of

Criminal Appeal to interfere in an appropriate

case.

TOOHEY J: But that is not an argument that was run - - -

MR PARNELL:  No, it is not an argument

BRENNAN J: There has been no motion thus far to quash an

indictment.

Stanton 15 13/2/92

MR PARNELL: That is a matter which could attract some

Barton-type argument.

BRENNAN J:  I do not know whether it is Barton-type, but at

all events, there has been no application to quash

the indictment thus far, has there?

MR PARNELL:	Thus far, no. At this stage no indictment has been presented. This applicant has never been
indicted. He has never been charged, validly,
before a court and never been indicted.

BRENNAN J: It raises interesting problems of jurisdiction

to make any order at all.

MR PARNELL: That is in relation to the children's court

matters. He has certainly been validly charged

before the local court in respect of the 476

matters. That is one of the reasons - and also

having attained 21 - that - - -

BRENNAN J: Under what provision was this application made

then?

MR PARNELL: This application?

BRENNAN J: Yes.

MR PARNELL:  It is in response to the judgment of the Court

of Criminal Appeal.

BRENNAN J:  I do not mean the application to this Court; I

mean the application that was first made to the

district court.

MR PARNELL:  The application first made to the district

court was prior to presentment of the indictment.

BRENNAN J: Under what provision of the relevant

legislation?

MR PARNELL:  I am not aware of that, Your Honour. If

Your Honour would pardon me a moment. It related

to a proposal by the Crown, I am reminded, to

present indictments and I am further reminded that

in recent years, since the introduction of the

District Court Act 1973, it has been conceded that,

contrary to the previous situation in the old

quarter session courts, there is some right in the

district court to entertain applications before any

indictment is presented. These are applications

other than stays or objections or demurrers to an

indictment.

BRENNAN J: Interesting point, interesting practice.

Stanton 16 13/2/92

MR PARNELL: If the first of these applications were

successful, or even the second, it has certainly

crossed my mind as to what particular orders might
be appropriate if, say, a successful appeal
occurred, in view of the indictment not having been

presented.

BRENNAN J:  It is one of the mysteries of New South Wales

criminal practice, I must confess.

MR PARNELL:  I was going to reply in some little detail to

the summary of arguments presented by the Crown.

BRENNAN J:  We do not need to hear you in response to the

Crown unless we are going to call on the Crown,

Mr Parnell.

MR PARNELL: All right, Your Honour. If Your Honours

please.

BRENNAN J:  We need not trouble you, Mr Blanch.

The applicant sought a stay of proceedings in

the District Court on an indictment charging him

with seven counts of sexual assault involving

indecency and one count of sexual intercourse with

a child between the ages of 10 and 16 years. The

assumption on which the application for stay was

necessarily based is that, if an indictment were

presented, the District Court would have had

jurisdiction to hear and determine the issues
raised on a plea to the indictment.

The order of the Local Court committing the

applicant for trial on some of the counts of sexual
assault involving indecency was made without

jurisdiction. The want of jurisdiction arose from

the fact that the applicant was under 18 when the

alleged offences were committed and was under 21

when the committal proceedings were before the

Local Court.

By force of section 7 and 28 of the Children

(Criminal Proceedings) Act 1987 (NSW) proceedings

in relation to these offences ought to have been

brought in the Children's Court which would have

dealt with them summarily, unless the Court was of
opinion that the charges might not properly have
been disposed of in a summary manner: see
sections 28 and 31(3).

No objection to the jurisdiction of the Local Court was taken on behalf of the applicant who was

then legally represented. Nor was any submission

made that the matter should be dealt with by the Children's Court. Subject to section 476 of the

Crimes Act, the Local Court had jurisdiction to

Stanton 17 13/2/92

commit the applicant for trial on the count of

sexual intercourse with a child between the ages of

10 and 16.

The applicant contends that he was deprived of

his statutory right to have the charges under
section 61E of the Crimes Act - that is the
offences of sexual assault involving indecency -

brought first before the Children's Court and was

thus deprived of the prima facie entitlement to

have those charges disposed of summarily. He

submits that a permanent stay of proceedings
against him should have been ordered. This
submission failed before the Court of Appeal.
Chief Justice Gleeson, who correctly appreciated

Children (Criminal Proceedings) submitted by both the applicant and the Crown bearing on the making of an order for a permanent

the effect of the

stay and concluded that "considerations of fairness
to the applicant did not require or justify a
permanent stay of the proceedings against him in

relation to the section 61E offences".

It would be untenable to argue that the defect

of the jurisdiction of the Local Court is

conclusive of the applicant's entitlement to a stay

order. Once that argument is rejected, the case

turns simply on the evaluation by the Court of

Criminal Appeal of the various factors to which

Chief Justice Gleeson referred in dismissing the
appeal against the District Court's refusal to stay

proceedings. That raises no issue justifying the

grant of special leave to this Court. We should

add that the applicant has not satisfied us in any

event that there is sufficient reason to doubt the

correctness of the order of the Court of Criminal

Appeal to justify the grant of special to appeal.

Accordingly, special leave is refused.

AT 12.49 PM THE MATTER WAS ADJOURNED SINE DIE

Stanton 18 13/2/92