Staveley v Rowe - [2010] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: STAVELEY -v- ROWE [2010] WASC 35

CORAM: SIMMONDS J

HEARD: 18 JANUARY 2010

DELIVERED : 24 FEBRUARY 2010

FILE NO/S: SJA 1130 of 2009

BETWEEN: CHARLES GORDON STAVELEY
Appellant
AND
TODD COLIN ROWE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY CHIEF MAGISTRATE E A WOODS
File No  :PE 52804 of 2007, PE 52805 of 2007

Catchwords:

Criminal law and procedure - Appeal against decision made without jurisdiction - Convictions and sentence in the Magistrates Court for offences within the exclusive jurisdiction of Children's Court of Western Australia - Saving provision in Criminal Procedure Act 2004 s 169 - Whether power in s 169 to make order setting aside the convictions and sentence and sending the prosecutions to the Children's Court to be dealt with should be exercised - Order made

Criminal law and procedure - Power on appeal under Criminal Appeals Act 2004 s 7 to make orders under Criminal Procedure Act 2004 s 169

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 3, s 19, s 19B, s 19C, s 19D
Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 10, s 14
Criminal Code (WA), s 5, s 401, s 575, s 576,
Criminal Law and Evidence Amendment Act 2008 (WA), s 28
Criminal Procedure Act 2004 (WA), s 169
Young Offenders Act 1994 (WA), s 3, s 4, s 50B, s 55

Result:

Extension of time granted
Leave granted
Appeal allowed
Prosecutions sent to Children's Court to be dealt with

Category: A

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr A E H Putt

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Adlem v The Queen [1999] WASCA 1; (1999) 20 WAR 419
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v MPD [2008] WADC 98

SIMMONDS J:

Introduction

This appeal is about the application of the former provision of the Criminal Procedure Act 2004 (WA) (the CP Act) concerning courts dealing with charges outside their jurisdiction. There is no authority on that provision, or indeed on its successor, the current provision of the CP Act, which counsel or I have been able to find, save for a decision of the District Court, to which I will briefly return.
The application of that provision of the CP Act arises out of a prosecution in the Magistrates Court of a 23‑year‑old man who was 16 at the time of the alleged offending, and who thus ought to have been dealt with on the relevant charges in the Children's Court of Western Australia, at least initially.
I first set out the background to the appeal, before considering its basis, the relevant law and its application.

Background

Prosecution Notice 52804/07 dated 17 September 2007 charged the appellant, with the offence of burglary and commit offence in place contrary to Criminal Code (WA) (Code) s 401(2)(c). The alleged offence was committed over the period 16 ‑ 17 November 2000. The appellant was born on 24 February 1984. He was thus 16 at the time of the alleged offence.
Prosecution Notice 52805/07 also dated 17 September 2007 charged the appellant with another offence contrary to Code s 401(2)(c). This alleged offence was committed on 8 January 2001. He was thus 16 at the time of this alleged offence also.
On 17 September 2007 proceedings in respect of the prosecutions for these alleged offences were commenced in the Perth Magistrates Court. There were further hearings on 8 and 22 October 2007, and on the latter date the appellant was convicted on the two charges, one of which, under PE 0752805/07, had been amended to an offence of burglary and commit offence in a dwelling contrary to Code s 401(2)(b). The appellant was sentenced on the two charges to a fine of $1,000 in each case.

This appeal

By Criminal Appeals Act 2004 (WA) (CA Act) s 7(1), s 8(1)(a)(ii) and s 9(1) an appeal lies to this court by leave from a decision of the Magistrates Court on the ground the magistrate acted without or in excess of jurisdiction. This is such an appeal.
By appeal notice dated 18 November 2009 the appellant applied for leave to appeal against the convictions. An extension of time to appeal was also sought: see CA Act s 10(3).
There is only one ground of appeal assigned by the appeal notice. It is
1.At the time of conviction and sentencing, the Magistrates Court did not have jurisdiction to deal with the offences, which were committed when the Appellant was under 18. The offences should have been dealt with in the Children's Court.
On 26 November 2009 Jenkins J of this court ordered that the application for extension of time and the application for leave to appeal be heard at the same time as the appeal.
There is no opposition to the grant of an extension of time for the application for leave to appeal, or the grant of such leave, and I have concluded it should be granted.
As to granting leave to appeal, it will become apparent that leave should be granted in this case, on the test from Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] ‑ [61] (Steytler P, Wheeler and Roberts‑Smith JJA).
I turn then to the effect of the network of legislative provisions relevant to the appeal, beginning with the provisions relevant to the jurisdiction to hear and determine the charges the appellant faced.

The effect of the provisions relevant to jurisdiction

I should immediately note that the respondent does not contest that the effect of the network of legislative provisions relevant to jurisdiction is that the convictions appealed against were arrived at in the Magistrates Court without jurisdiction. However, the respondent says, those convictions were nonetheless of full force and effect, and the sentencing under them was lawful, because of a saving legislative provision which was relatively recently enacted. It appeared to be common ground that that provision overcame the effect of a decision of the Court of Criminal Appeal that would otherwise have required me to allow this appeal and set aside the convictions. I reach that provision after reviewing the effect of the network of legislative provisions relevant to jurisdiction.
My references to the legislative provisions are for the most part to those provisions as they were at the times material to this appeal. Those times fell over the period 17 September ‑ 22 October 2007.
The appellant at the time of the alleged offending, being a person under the age of 16 years, was a 'child' for the purposes of Children's Court of Western Australia Act 1988 (WA) (CCWA Act): see s 3 'child'.
As a consequence, the Children's Court had exclusive jurisdiction to hear and determine the charges of those alleged offences, and this was unaffected by the fact the appellant was no longer a 'child' at the time those charges were brought against him in the Magistrates Court: see CCWA Act s 19(1) read with s 19(2).
However, the CCWA Act permitted another court than the Children's Court to hear and determine the two charges. In a case involving no co-accused (for cases involving co-accused, see s 19C), the CCWA Act permitted this in only two sets of circumstances.
One set of circumstances was where a child was charged with an indictable offence, and, if the child were an adult, the charge could, by virtue of Code s 5, be tried on indictment or summarily, and the Children's Court, having complied with CP Act s 40(2), decided the charge should be tried on indictment. In those circumstances the child might elect to be tried on indictment in the Supreme Court or the District Court (as the case requires): see CCWA Act s 19B.
The other set of circumstances was where a person was charged with an offence alleged to have been committed when that person was under the age of 18 years and the person had attained the age of 18 years. In those circumstances the Children's Court might (s 19D):
having regard to ‑
(a)the seriousness of the offence;
(b)the existence of an adult co‑offender;
(c)the effluxion of time since the offence;
(d)the fact that the person is charged before the Magistrates Court with other offences; or
(e)any other good cause,
order the transfer of the prosecution notice to the Magistrates Court to be dealt with according to law and the Magistrates Court shall have jurisdiction accordingly.
It is not in contest that the two charges were never preferred in the Children's Court. This was notwithstanding the fact that the two prosecution notices both bore the legend 'Childrens Court of Western Australia Prosecution Notice', and indeed also bore the legend, in the box 'Details of alleged offence', 'J10'. It should be noted, however, that the Prosecution Notices bore a prefix 'PPE' which was not the prefix ('CCC') I understood to be associated with matters in the Children's Court.
Thus, s 19D was not applicable in this case, s 19B having no relevance in any event.
On the authority of Adlem v The Queen [1999] WASCA 1; (1999) 20 WAR 419, the two convictions would have to be set aside as determined without jurisdiction, unless there were a saving provision applicable.
Adlem was an appeal from convictions in the District Court on an indictment brought in that court. The indictment charged the appellant with four offences of unlawful and indecent dealing in relation to two children under 14 years old. Following his pleas of not guilty, and a trial, he was convicted and sentenced to three years imprisonment on each charge, to be served concurrently. At the time of the offences the appellant was no more than 16 years old. At the time of the presentment of the appellant in the District Court he was 30 years old.
The court reviewed all of the provisions of the CCWA Act to which I have referred. It concluded that on the basis of them, absent a saving provision, the verdicts had to be set aside, and the matter remitted to the Children's Court to be dealt with according to law.
The court considered whether former s 575 and s 576 of the Code were applicable so as to save the proceedings in the District Court. They concluded those provisions were not applicable.
However, after Adlem, a saving legislative provision was enacted which was applicable in at least some cases of a court acting in a criminal prosecution without jurisdiction. That provision in its current form is CP Act s 169, and has been taken as having overcome the effect of Adlem: see Criminal Law in Western Australia, as at 18 January 2010, [8535.1]. The respondent relies on that provision and counsel for the appellant does not dispute that it applies. However, counsel for the appellant relies on the provision in s 169 allowing for a court hearing an appeal in relation to a determination taken without jurisdiction, but given full force and effect by the provision, to make an order setting aside the determination and any sentence on it and remitting the matter to the Children's Court.
Neither counsel nor I have been able to find any other saving provision possibly applicable in this case.

The saving provision for determinations without jurisdiction

As originally enacted, and as in force between 17 September 2007 and 22 October 2007, CP Act s 169 read as follows:
169. Child, prosecution of in wrong court
(1)In this section, unless the contrary intention appears -
'child' means a person who is under 18 years of age.
(2)If a court that does not have jurisdiction to deal with a child for an offence determines a charge against a person who is, or at a time material to the court's jurisdiction was, a child in the belief that the person is, or at the material time was, not a child ‑
(a)the court's determination has full force and effect; and
(b)anything done as a result of the determination is lawful.
(3)If a court that does not have jurisdiction to deal with a child determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to ‑
(a)that court; or
(b)if the determination is subject to an appeal, the court dealing with the appeal,
for an order setting aside the determination.
(4)The court to which such an application is made may either ‑
(a)refuse the application;
(b)vary the determination and any sentence imposed or other order made as a result of the determination; or
(c)set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by the Children's Court,
and make any necessary consequential orders.
(5)If a court is dealing with an appeal in relation to the determination, subsection (4) is in addition to the court's powers on the appeal.
Effective 27 April 2008 the CP Act s 169 was by Criminal Law and Evidence Amendment Act 2008 (WA) s 28 replaced with the current form of s 169, which reads as follows:
169. Prosecution determined by court without jurisdiction
(1)In this section, unless the contrary intention appears -
'jurisdictional error', in relation to a charge against a person being dealt with by a court, means an error of fact or law that is material to whether the court has jurisdiction to deal with the charge.
(2)If a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of a jurisdictional error -
(a)the court's determination has full force and effect; and
(b)anything done as a result of the determination is lawful.
(3)If a court that does not have jurisdiction to deal with a charge against a person determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to ‑
(a)that court; or
(b)if the determination is subject to an appeal, the court dealing with the appeal,
for an order varying or setting aside the determination.
(4)The court to which such an application is made may either ‑
(a)refuse the application; or
(b)vary the determination and any sentence imposed or other order made as a result of the determination; or
(c)set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person,
and may make any necessary consequential orders.
(5)If a court is dealing with an appeal in relation to the determination, subsection (4) is in addition to the court's powers on the appeal.
It will be seen that both forms of CP Act s 169 only apply when a court 'determines the charge'. On what that might not mean in the current form of s 169 see The State of Western Australia v MPD [2008] WADC 98 [125] (Bowden DCJ). It is common ground here that the Magistrates Court had determined the charges in this case, which I consider to be the correct view.
It was also common ground that it is the earlier form of s 169 that I must consider, which in my view was the appropriate position, given that the proceedings in the prosecution of the appellant had concluded before 27 April 2008.
In my view CP Act s 169 only applied to make the determination of the two charges of full force and effect if the magistrate in the Magistrates Court made that determination 'in the belief that [the appellant] is, or at the material time was, not a child': s 169(2). In my view the belief in this case would have had to have related to the age of the appellant 'at the material time', that is, the times of the alleged offending. That is, a belief that the appellant was not a child at the time of the determination of the charges would not be sufficient, as in my view s 169(2) was concerned with an erroneous belief. I consider the alternative construction, that a belief of either sort in s 169(2) would have been sufficient, would not reflect the structure and purpose of s 169(2). That structure in my view aligned the belief with the circumstance that meant the court did not have jurisdiction, while that purpose in my view was to save the proceedings notwithstanding an error of jurisdictional fact.
In any event, it was common ground in this appeal that the magistrate had the relevant belief. I note that it is difficult in this case to determine the belief of the magistrate, as no transcript of the hearing before that officer was ever prepared, and the original tapes recording the proceedings in the Magistrates Court have been re-used. However, counsel for the appellant indicated that his instructions and his review of the instruction sheet from the duty lawyer who appeared in the Magistrates Court indicated that the parties to the prosecution and the magistrate simply did not take note of the fact that the appellant was a child at the material time. It was not put to me there was any indication that they proceeded on a belief as to any other matter that, had it been correct, would have sustained jurisdiction, such as that the matter had been transferred to the Magistrates Court from the Children's Court. In particular, the proceeding in the Magistrates Court in the face of the legends on the prosecution notices I earlier referred to was not relied upon as such an indication.
A belief that the Children's Court had transferred the prosecutions to the Magistrates Court, had such a belief been indicated, would in my view have not been sufficient to make the form of CP Act s 169 relevant to me applicable in this case. However, the matter might have been otherwise under the current form of the provision, which is rather more broadly expressed.
At the same time, I do not need to pursue the matter further, in view of the parties' positions and the results of the inquiries of the counsel for the appellant.
It was not in contest that, as CP Act s 169 was applicable, I should consider whether, under s 169(5), to make an order under s 169(4). I take the question of the exercise of the court's power to make such an order to arise as the ground of appeal, that the magistrate had no jurisdiction to make the determinations the magistrate did, has been made out. Of course, in the absence of the power in s 169(5), the apparent result of CP Act s 169(2) is that the appropriate order on the appeal would appear to have been that the appeal should be dismissed, on the proviso in CA Act s 14(2). However, on my view of CP Act s 169 the proviso could not preclude the making of an order under s 169(4).
It was further common ground that the court's power under s 169(4) was a discretionary one.
The appellant sought the exercise of the power in s 169(4) in the terms in s 169(4)(c), that the court order the convictions and the sentence be set aside and the prosecution be sent to and dealt with by the Children's Court.
I turn then to whether or not I should make that or any other order under s 169(4).

Whether I should make an order under the saving provision

There is no authority on the application of CP Act s 169(4). In the absence of such authority, I consider I should take it as of importance to the exercise of my discretion to make an order under s 169(4) whether or not there was a particular reason to consider there might have been a substantial miscarriage of justice in the magistrate proceeding in the belief that the appellant was not a child at the material time, namely, the time of the offending.
Such a miscarriage of justice would not, in my view, be made out simply because the appellant was dealt with in the Magistrates Court, rather than, initially at least, in the Children's Court. Something more must be shown, being a particular reason why the appellant might have suffered a substantial miscarriage of justice because of the magistrate proceeding in the belief referred to.

The contrary was put to me by counsel for the appellant, who as I understood him was submitting that the purpose of CP Act s 169(2) was simply to assist the authorities in the event no challenge were made to the determination of the charges without jurisdiction. Once a challenge was made, the court should incline to make the relevant order.
However, I consider that is too limited a view of s 169(2). The provision seems to me intended to produce the effects in s 169(2), unless a suitable case for the exercise of the discretionary power in s 169(4) is made out, and then only to the extent of the exercise of that power that case was found to warrant.
In any event counsel for the appellant pressed on me particular provisions of the Young Offenders Act 1994 (WA) (YO Act) as warranting the orders he sought.
Those provisions of the YO Act as they were at the time of the proceedings in the Magistrates Court required a court, sentencing an offender who at the time of being sentenced was 18 years or older but who at the time of the offending was less than 18 years old, and which was imposing a non‑custodial sentence, to make a spent convictions order. This was unless the court was satisfied it would have had 'exceptional reasons' to record a conviction under the Act.
The relevant provisions of the YO Act were as follows.
YO Act s 3 defined 'court' as meaning, unless the contrary intention appeared, 'the Children's Court or other court dealing with a young person for an offence'.
YO Act s 3 defined 'young person' as meaning, unless the contrary intention appeared, 'a person who has not reached the age of 18 years' and 'a person to whom this Act applies because of section 4', while s 4 read:
If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.
YO Act s 50B(1) ‑ (3) provided:
(1)This section applies to and in respect of a young person found guilty of an offence who at the time of being sentenced is 18 years old or older ('the offender').
(2)Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
(3)In sentencing the offender under the Sentencing Act 1995, the court must make a spent conviction order under that Act if, under section 55 of this Act, it would be required to not record a conviction were it disposing of the matter under this Act.
Finally, YO Act s 55(2) and (3) provided:
(2)If the court finds a young person guilty of an offence other than a Schedule 1 offence or a Schedule 2 offence and does not impose a custodial sentence, the court is not to record a conviction unless it is satisfied that there are exceptional reasons for doing so.
(3)Whenever, for exceptional reasons, the court departs from the requirements of subsection (1) or (2), it is to record its reasons for doing so.
The offences in this case were other than YO Act sch 1 or sch 2 offences.
It followed from these provisions that the non-custodial sentences, the result of the convictions to which full force and effect was given by CP Act s 169(2), required the magistrate to have made spent conviction orders unless the magistrate were satisfied the magistrate had exceptional reasons for recording convictions.
There were no spent conviction orders in this case, and no record of any reasons having been given by the magistrate of the magistrate's reasons for recording convictions.
It was thus common ground that there was no indication the magistrate had considered the matter of such exceptional reasons, and it had to be taken the magistrate had failed to do so. Such a failure was, of course, to be expected, given the belief it was accepted the magistrate had that the appellant was not a child at the material time.
Counsel for the appellant put to me that the matter of hearing and determining the prosecutions in this case, including considering the appropriate sentences, including for non-custodial sentences whether there were exceptional reasons under YO Act s 55(2) to record convictions, should be remitted in the first instance at least to the specialist court for dealing with offences by children, the Children's Court. I treated this as a submission that the appellant would suffer a substantial injustice from not having the opportunity for that court to consider the matter in a case where, applying sentencing principles applicable to an offender who was believed not to be a child at the material time, the court that had determined the charges had considered it appropriate to impose non-custodial sentences.
I would uphold that submission. I consider that without more the appellant has shown a case for the exercise of the power in CP Act s 169(4) in the terms of s 169(4)(c). In my view it was not necessary for the appellant to show exceptional reasons would not or would likely be found on such a remission.
However, the case referred to might be met where I could determine that exceptional reasons should be found on any such remission. In that regard, I note that counsel for the respondent drew to my attention an aspect of the appellant's criminal history that, it was submitted, supported the contention that no order under CP Act s 169(4) should be made.
The appellant's criminal history reveals that on 24 January 2007, when the appellant was 22 years old, he was convicted in the Children's Court of the offence of burglary and commit offence in place contrary to Code s 401(2)(c). That offence was committed on 1 December 2000, when he was 16 years of age. The sentence he received in the Children's Court for that offence is shown as an adult community release order of 6 months on a $750 undertaking.
Counsel for the respondent referred me to that conviction and sentencing showing that the Children's Court, on a similar offence to those the subject of the present convictions and sentences, committed at about the same time as those offences, had imposed a non‑custodial sentence but had not made a spent convictions order. I took it that I should infer, as I do, that the Children's Court had been satisfied there were exceptional reasons for not making a spent convictions order. Relying on that sentencing in the Children's Court, and the fact that in total the appellant had committed three burglaries over a three year period (that for which he had been sentenced there, and the two for which he was sentenced in the Magistrates Court), counsel submitted that there were exceptional reasons not to make spent conviction orders in this case. On that basis, I should conclude that a case for the making of a discretionary order under CP Act s 169(4)(c) or indeed any other discretionary order under that subsection had not been made out. I took from that submission that it had been shown the appellant had suffered no substantial injustice in not having had the Children's Court consider the matter of the prosecutions in this case.
However, as counsel for the respondent acknowledged, there was little information before me beyond that to which I have referred on which to found a conclusion on whether or not I could be satisfied such exceptional reasons should be found. In particular counsel for the respondent had not been able to obtain any information as to the sentencing hearing in the Children's Court, including the offending in question and any matters concerning the appellant that court had considered of significance to its determination of exceptional reasons.
In those circumstances I consider I am not in a position to arrive at the conclusion the appellant would suffer no substantial injustice in not having the Children's Court consider the matter of the prosecutions in this case. It has not been made evident to me that a conclusion that exceptional reasons should be found to record convictions should be arrived at in this case.
I should add that, before arriving at such a conclusion, I might also have had to consider any sentencing submissions the appellant might have put to me, on the basis these might qualify what would otherwise have been concluded from information I had as to the sentencing hearing in the Children's Court. Indeed, counsel for the appellant described to me aspects of the appellant's family history and history of substance abuse which went to explain, counsel said, why the appellant had committed the three burglaries.
However, I consider I do not have to go further into whether or not such sentencing submissions should be entertained, and what should be drawn from them, in the absence of any information as to the sentencing hearing in the Children's Court.
I have concluded on all of the circumstances I have described that it is appropriate I exercise the discretionary power in CP Act s 169(4) to make the order the appellant seeks in terms of s 169(4)(c).

Orders

Accordingly, I would grant the extension of time to appeal, grant the leave to appeal, allow the appeal, set aside the convictions and have the prosecutions sent to and dealt with by the Children's Court.
I will hear from the parties as to any further orders I should make, including orders as to costs.