Tasmania v MAR
[2011] TASSC 56
•19 October 2011
[2011] TASSC 56
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v MAR [2011] TASSC 56
PARTIES: STATE OF TASMANIA
v
M A R
FILE NO/S: 487/2010
DELIVERED ON: 19 October 2011
DELIVERED AT: Hobart
HEARING DATE: 3, 4 October 2011
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process – In general – Ex officio indictment alleging crimes committed as a youth – Youth justice legislation providing for election to be tried in Youth Justice Court on prescribed offences – Election made the crime a summary offence – Original charges on complaints not prescribed offences – Counts on indictment were prescribed offences – Accused would have made election if available – Significant differences between adult and youth criminal justice regimes – Stay of proceedings on relevant counts ordered.
Barton v R (1980) 147 CLR 75; R v Swingler [1996] 1 VR 257 applied.
R v Minney [2003] TASSC 64; A, MC v Police (2008) 102 SASR 151; R v Abdulla (2010) 200 A Crim R 365, referred to.
Youth Justice Act 1997 (Tas), s161(2), (2B).
Aust Dig Criminal Law [3054]
Family Law and Child Welfare – Child Welfare under State legislation – Crimes and offences by children – Jurisdiction of Supreme Courts – Stay of proceedings on indictment – Abuse of process – Ex officio indictment alleging crimes committed as a youth – Youth justice legislation providing for election to be tried in Youth Justice Court on prescribed offences – Election made the crime a summary offence – Original charges on complaints not prescribed offences – Counts on indictment were prescribed offences – Accused would have made election if available – Significant differences between adult and youth criminal justice regimes – Stay of proceedings on relevant counts ordered.
Youth Justice Act 1997 (Tas), s161(2), (2B).
Aust Dig Family Law [588]
REPRESENTATION:
Counsel:
State: G Hoare
Accused: G A Richardson
Solicitors:
State: Director of Public Prosecutions
Accused: G A Richardson
Judgment Number: [2011] TASSC 56
Number of paragraphs: 31
Serial No 56/2011
File No 487/2010
STATE OF TASMANIA v M A R
REASONS FOR JUDGMENT PORTER J
19 October 2011
Introduction
The accused faces an indictment dated 11 May 2011 containing 15 counts of unlawful sexual intercourse with a young person, and one count of indecent assault. The counts relate to two male complainants, to whom I will simply refer as C1 and C2. With the exception of count 8, a charge of unlawful sexual intercourse with a young person, all counts are alleged to have been committed at a time when the accused was under 18 years of age. This gives rise to considerations under the Youth Justice Act 1997 ("the Act"). With the exception of the one count of indecent assault, the accused had not been committed for trial in this Court on the crimes charged in the indictment. The committal order related to charges of rape. To that extent, the indictment is an ex officio indictment, filed by way of the Criminal Code, s310(3). On 4 October 2011, I made an order staying proceedings on the indictment until further order, except as they related to count 8. I said I would later publish my reasons, and I now do so.
The indictment contains the following crimes, against which I will put relevant brief particulars. In each count, the dates are preceded by the words "on or about".
1
Unlawful sexual intercourse with a young person
– at Glenorchy between 1 January 1985 and 31 December 1985 with C1.
2
Unlawful sexual intercourse with a young person
– at a different place to count 1, between the same dates but on the same day as count 1, with C1.
3
Unlawful sexual intercourse with a young person
– at another different place, between 1 January 1986 and 31 December 1986 with C1.
4
Unlawful sexual intercourse with a young person
– at the same place as count 3 between 1 January 1986 and 31 December 1986 with C1.
5
Unlawful sexual intercourse with a young person
– at the same place between 1 January 1986 and 31 December 1986, but immediately after count 4, with C1.
6
Indecent assault
– at the same place between 1 January 1988 and 31 December 1988, of C1.
7
Unlawful sexual intercourse with a young person
– at the same place between 1 January 1988 and 31 December 1988 with C1.
8
Unlawful sexual intercourse with a young person
– at a different place to count 7, between 1 January 1989 and 31 December 1989 with C1.
9
Unlawful sexual intercourse with a young person
– at the place referred to in count 7, between 1 January 1986 and 31 December 1986 with C2.
10
Unlawful sexual intercourse with a young person
– at the same place between 1 January 1986 and 31 December 1986 with C2.
11
Unlawful sexual intercourse with a young person
– at the same place between 1 January 1986 and 31 December 1986 with C2.
12
Unlawful sexual intercourse with a young person
– at the same place between 1 February 1986 and 31 December 1986 on the same day as count 11, with C2.
13
Unlawful sexual intercourse with a young person
– at the same place between 1 March 1986 and 31 December 1986 with C2.
14
Unlawful sexual intercourse with a young person
– at the same place between 1 March 1986 and 31 December 1986 on the same day as count 13, with C2.
15
Unlawful sexual intercourse with a young person
– at the same place between 1 September 1986 and 31 December 1986 with C2.
16
Unlawful sexual intercourse with a young person
– at the same place between 1 September 1986 and 31 December 1986 on the same day as count 15, with C2.
The date of birth of the accused is 29 December 1970. As it can be seen, his age at the time of the alleged commission of the crimes ranged from 14 (counts 1 and 2) to 18 years old (count 8). Under the Act, a "youth" means a person who is ten or more years old but less than 18 at the time when the offence was committed or is suspected of having been committed. Accordingly, all counts with the exception of count 8 are said to have been committed at a time which makes the accused a youth, notwithstanding his present age of 30.
Central to the application to stay proceedings is the jurisdiction of the Youth Justice Court under the Act, and the operation of s161(2) and (2B) of that Act. The relevant provisions are as follows:
"161 Jurisdiction of Court
(1) The Court —
(a)has jurisdiction to hear and determine a charge against a youth for an offence, and to deal with all related matters; and
(2) If a youth who is 15 years old or more is charged before the Court with an indictable offence that is not a prescribed offence, the Court must ask the youth if he or she is willing to be tried by the Court instead of by jury.
…
(2B) If a youth referred to in subsection (2) is willing to be tried by the Court and the youth's guardian, if present, does not object to the youth being so tried, the section creating the offence is taken to have created a simple offence and the Court must proceed to hear and determine the charge."
Prescribed offences are defined in s3 of the Act. In respect of youths who are 14 to 17 years old inclusive, rape is a prescribed offence, whilst indecent assault is not. Nor is unlawful sexual intercourse with a young person, a prescribed offence.
The history of the proceedings
The accused initially faced three separate complaints which were laid on the same date. The first complaint contained eight charges of rape and one charge of indecent assault, all relating to C1. The second complaint contained one charge of rape, relating to C1, and is said to have been committed when the accused was an adult. The third complaint contained one charge of indecent assault and eight charges of rape, all relating to C2.
I will shortly return to the complaints and how the charges on them relate to the counts on the indictment, but comment needs to be made at this point about the validity of all but two of the rape charges contained in the complaints. This is an issue which is important in relation to the stay application.
Before 12 November 1987, the crime of the rape of a male did not exist. The Criminal Code Amendment (Sexual Offences) Act No 71 of 1987, changed the crime of rape in the Criminal Code, s185(1). The wording was changed from "Any person who has carnal knowledge of a female not his wife without her consent is guilty of a crime", to "Any person who has sexual intercourse with another person without that person's consent is guilty of a crime". The same amending Act replaced in s124 of the Code the crime of defilement (unlawful carnal knowledge of a girl under the age of 18 years), with the gender neutral crime of sexual intercourse with a young person under the age of 17 years. The amending legislation introduced a definition of sexual intercourse as meaning "the penetration to the least degree of the vagina, genitalia, anus or mouth by the penis …".
Additionally, before the amendments made by the 1987 amending Act, the crime of indecent assault under s127 was constituted by the unlawful and indecent assault of a female. That crime was also made gender neutral and changed to the unlawful and indecent assault of a "person". There were further relevant amendments made in 1997. By Act No 12 of 1997, two forms of the crime of unnatural carnal knowledge "against the order of nature" (s122 I and III), and indecent practices between male persons (s123) were repealed. Both sections 124 and 127 were amended by, in each case, the addition of sub-section (4) which provided that the section is to be taken to be in force from 4 April 1924. (See Slicer J's discussion in R v Perriman [2000] TASSC 108 of these amendment Acts and their effect.)
By reason of these changes, six of the eight charges of rape on the first complaint, and all eight charges of rape on the third complaint were alleged in those complaints to have been committed at a time when the rape of a male person was not a crime. The charge of indecent assault on the first complaint does not give rise to any similar issue, but that on the third complaint was alleged to have been committed at a time when the crime only related to females. It follows that the accused was charged on complaint with 14 counts of rape and one of indecent assault, of which, on their face, he could not have been guilty because the crimes were not ones known to the law at the time of their alleged commission.
On 9 November 2010 the accused appeared before a magistrate and entered pleas of not guilty to all of the matters on the three complaints. Although all of the matters seem to have been dealt with at the one time, there are separate "record of proceedings" sheets kept for the three separate complaints. Those sheets for the first and third complaints record the accused's appearance in the Youth Justice Court, whilst the sheet in relation to the second complaint (containing one charge of rape alleged to have been committed in 1989) records an appearance in the Magistrates Court. As both the process under s161(2) and the expression of willingness to be tried in the Youth Justice Court is commonly referred to as an "election", I will use that description.
On the first and third complaints, no doubt because it is a prescribed offence, the accused was not asked, pursuant to the Act, s161(2), if he was willing to be tried by the Youth Justice Court on the charges of rape. Upon his pleas of not guilty he was committed for trial in this Court. Through his counsel at the time, the accused said he was willing to be tried by the Youth Justice Court on the indecent assault charge on the first complaint. On the record of proceedings sheet for that complaint, after the recording of the pleas there is a note that as to that count the defendant "elects Youth Justice jurisdiction CPS". The same course was taken and the same type of notation appears for the one charge of indecent assault on the third complaint.
The ex officio indictment of course contains no charges of rape. I will now deal with the correlation between the charges on the complaints and the counts on the indictment. As to the first complaint, two charges of rape directly relate to two counts of sexual intercourse with a young person, two further charges of rape seem not to be reflected, two further charges seem to have given rise to three counts of sexual intercourse with a young person, there is a direct correlation between a further charge of rape and a count of unlawful sexual intercourse with a young person. The last charge of rape is not represented in the indictment. The charge of indecent assault in respect of which the accused elected under s161(2) of the Act to be tried by the Youth Justice Court, clearly seems to be count 6 on the indictment.
The one charge of rape on the second complaint directly correlates with count 8 on the indictment. There is direct correlation between all charges of rape on the third complaint and counts 9 to 16 inclusive of the indictment. The charge of indecent assault on that complaint, also the subject of an election to be tried by the Youth Justice Court, is not represented.
The effect of an "election" under s161(2)
Section 161(2B) of the Act provides that if a youth is willing to be tried by the Youth Justice Court, the section which creates the indictable offence is taken to have created a simple offence. The subsection provides that in that event, that court must proceed to hear and determine the charge. Following the election, the charge is one of a simple offence. There is no provision by which the offence can be "returned to the status" of a crime, and in the absence any such provision and the fulfilment of its requirements, the offence remains a simple one: see R v Minney [2003] TASSC 64 at [28] where the discussion involved the Justices Act 1959, ss72 and 72B. Those sections made provision for an "election" for certain offences to be tried summarily in which case the section was deemed to have created a simple offence, and the power of a magistrate to "undo the effect" of that provision during the course of the hearing.
Other than withdrawal of an election by a youth, there seems to be no way that the offence can subsequently be treated as a crime so as to give this Court jurisdiction.[1] Any charge of the crime of unlawful sexual intercourse with a young person should have triggered the question under s161(2) of the willingness to be tried by the Youth Justice Court. However, in accordance with Raev R (1993) 2 Tas R 78, per Zeeman J at 83 – 84,[2] the accused in this application did not dispute the jurisdiction of this Court to try him as to those counts. It will be recalled that count 6 is a count of indecent assault in respect of which the accused made an election to be tried in a Youth Justice Court. Mr Hoare accepted that the indictment should not contain this count. As I will explain, the basis of the application was that in the circumstances it would be unfair to try the accused in this Court on the counts of sexual intercourse with a young person.
The application to stay
[1] Section 385A of the Criminal Code gives to this Court jurisdiction to deal with simple offences upon the application of an accused person who was being convicted or acquitted of a crime, and where there is a factual connection between that crime and the simple offence. The person is dealt with as they would be under the Justices Act 1959. This would seem to enable this Court to deal with simple offences where the accused person is a youth: Visser v M [1998] TASSC 73.
[2] Rae v R dealt with s27(2) of the now repealed Child Welfare Act 1960, which was the broad equivalent of s161(2) of the Act. It was held that the grant of jurisdiction to children's courts did not oust the jurisdiction of the Supreme Court. This was in circumstances in which the accused had not "waived his right" to be tried in a children's court in respect of the crime of which he was ultimately convicted in this Court. It is to be noted that s27 did not contain a provision by which, upon a person indicating a willingness to be tried by a children's court instead of a jury, the section creating the offence was taken to have created a simple offence. Section 27(2) provided that in the event of an election, the children's court should hear and determine a charge as if it were a charge for an offence punishable on summary conviction before justices.
The submission on behalf of the accused was that if he had been charged with the counts of unlawful sexual intercourse with a young person and not rape, the magistrate would have been under an obligation to ask him whether he was willing to be tried by the Youth Justice Court instead of by a jury. It was asserted that he would have answered in the affirmative. It was argued that in any event, I could infer this from his response to the two charges of indecent assault as to which he did indicate his willingness to be tried by the Youth Justice Court. Mr Hoare for the State did not dispute that such inference was properly open. Accordingly, I am satisfied that for those allegations relating to when the accused was a youth, if the complaints had contained charges of sexual intercourse with a young person and not rape, the accused would have chosen, as was his right, to be tried in the Youth Justice Court.
The submission was that in those circumstances, it was unfair for the accused to face trial by jury, and possible sentencing by this Court. Essentially the same factual allegations are involved, leaving aside the issue of consent. Mr Richardson highlighted a number of significant differences between appearing in and being dealt with by the Youth Justice Court, as contrasted with this Court.
Apart from the obvious difference in the tribunal of fact, the principal differences are as follows:
· s30 of the Act limits, by identity, the persons who may be present at a sitting of the Youth Justice Court;
· the guiding objectives of youth justice may have some application to the accused, notwithstanding that he is now 30 years old;
· the accused would be sentenced as a youth by the Youth Justice Court, whereas if sentenced by this Court, he would be sentenced for a crime under s389 of the Criminal Code, which section is subject to the provisions of the Sentencing Act: see C v R [2002] TASSC 55;
· this means that because of s89(b) of the Act, the accused could not be sentenced to a period of detention greater than two years and that, by virtue of s109(1), he would have to be released after serving one-half of any period of detention.
These differences are not trivial or insubstantial. A not dissimilar youth justice regime is in place in South Australia. In A, MC v Police (2008) 102 SASR 151 at [67], Kourakis J said:
"The special sentencing provisions of the [Young Offenders] Act dictate an approach to the sentencing of children that is radically different to the way in which the sentencing discretion is exercised over adult offenders. Care, correction and guidance, and not punishment, are the primary objects that govern the sentencing of young offenders. A sentence imposed by the Youth Court may be punitive, but only as an incidental or collateral consequence of its operation as an order that is necessary to achieve the purposes of correction and community protection prescribed by … the Act."
These comments were referred to by Gray J in R v Abdulla (2010) 200 A Crim R 365. That case involved considerations of jury findings in respect of an indictable offence, which if found to have been committed when the accused was under 18, ought to have been determined in the Youth Court and not the District Court. Gray J dissented as to the outcome, but his Honour's comments are not affected by the result. At [102] his Honour said that analysis shows that the difference between the youth regime and the adult regime "is remarkably stark". The following observations at [103] can be applied to the differences between the adult sentencing regime under the Criminal Code and the Sentencing Act, and the Youth Justice Act. His Honour said:
"The young offender regime is distinct from the adult regime in a number of respects, including limited sentencing powers, increased processes of review, protection of youths in their exposure to the criminal justice system, and, of particular note, an emphasis on care, correction and guidance rather than punishment."
The jurisdiction to stay proceedings
This Court has the power to stay proceedings on an ex-officio indictment: Barton v R (1980) 147 CLR 75, per Gibbs ACJ and Mason J at 96 – 97. The power will be exercised to prevent an abuse of process or the pursuit of a criminal proceeding in a manner which results in a trial which is unfair when judged by reference to accepted standards of justice: Barton at 96; Walton v Gardiner (1993) 177 CLR 378, per Mason CJ, Deane and Dawson JJ, at 392 – 393. The exercise of the power would be rare and is reserved for exceptional or extreme cases; it is a power which should be exercised sparingly and with the utmost caution: Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (above) at 392; R v Edwards (2009) 83 ALJR 717 at [23].
Guidance in the present matter can be found in R v Swingler [1996] 1 VR 257. The Court of Appeal (Winneke P, Callaway JA and Crockett AJA) said at 264 – 265, that it was well accepted that a superior court could, in the exercise of its supervisory jurisdiction, stay a prosecution if satisfied that in the circumstances it would be oppressive to allow the prosecution to proceed. Their Honours said that the inherent jurisdiction to stay proceedings on the grounds of abuse of process "extends to all those categories of cases in which the processes and procedures of the Court which exist to administer justice with fairness and impartiality may be converted to instruments of injustice or unfairness".
Discussion
Some of the charges on the complaints alleged crimes of rape committed "between 1 January 1988 and 31 December 1988". Technically, this period contains three days at its end when the accused may have been 18. The State did not dispute that if those charges had been sexual intercourse with a young person instead of rape, the magistrate ought to have asked the question under s161(2). This is in fact what the magistrate did for the one charge of indecent assault on the first complaint, alleged to have been committed between 1 January 1988 and 31 December 1988.
On the indictment there are 13 of the 15 counts of sexual intercourse with a young person which can be related to charges of rape in the complaints, and which were wrongly laid in the sense that the rapes alleged were not crimes at the time. The first names of the complainants are obviously male. Had the crimes charged in the complaints been sexual intercourse with a young person, the accused would have been asked the question under s161(2) and would have elected trial by the Youth Justice Court. There is one charge of sexual intercourse with a young person on the indictment (count 7) which was originally charged as rape, and could have been pursued as such. I assume that this charge of rape was indicted as sexual intercourse with a young person to bring it into line with the other charges, but it does involve a time when the accused was under 18. Because of the age of the complainant, the change from a rape charge also removes consent as an issue. If a decision had been made at the time of the filing of the complaints to proceed with sexual intercourse with a young person rather than rape, s161(2) would, of course, have applied.
The remaining counts on the indictment are counts 6 and 8, to both of which I have already referred. Count 6 is the indecent assault in respect of which an election was made and as to which a concession has been made by the State. Count 8 was originally the charge of rape on the second complaint, alleged to have been committed at a time when the accused could lawfully be convicted, and when he was an adult.
As to the counts of sexual intercourse with a young person on the indictment, with one exception, the failure to lay appropriate charges on complaint, being ones of which the accused could lawfully be convicted, led to him facing trial in this Court. If he had been appropriately charged, he would not be facing trial in this Court, but in the Youth Justice Court. As to the other count, that was a matter of choice by the State to change it from rape to sexual intercourse with a young person, removing consent as an issue. However, as I have said, no doubt at least a factor in that decision, was to make the count the same as the others.
Outcome
There are significant advantages to the accused if he is tried by the Youth Justice Court, rather than this Court. I take the view that in light of the course the accused would have taken if open to him, the failure to realise the fatal error in most of the charges of rape originally laid has created exceptional circumstances. Essentially, the error in laying the complaints has deprived the accused of his rightful opportunity to have the charges now alleged against him, tried in the Youth Justice Court. The State has conceded that one count in respect of which the accused made an election under s161(2) of the Act, should not remain on the indictment. In my opinion, the circumstances involve a sufficient degree of oppression and unfairness, to warrant a stay. That order will not prevent further proceedings being taken in the Youth Justice Court as to the relevant charges. No prejudice to the State was claimed other than some small delay. Even taking that into account, the order should be made.
As to count 8, no such unfairness arises. On the face of the complaint there is no question of the application of the Act. The time-frame alleged in the charge on the complaint was between 1 January 1989 and 31 December 1989. The magistrate was under no obligation to consider s161(2) of the Act. It was not argued that because of the proximity of the accused's birth date to the commencement of this period, an enquiry ought to have been held to determine the jurisdiction of the Youth Justice Court. In any event, it would have been quickly established from the complainant's statement that the incident referred to is said to have taken place in January or February of 1989.
For those reasons it is appropriate to order a stay on the proceedings on the indictment with the exception of count 8.
The order I made was a stay until further order. I did that because it seemed to me that although extremely unlikely, the indictment in its present or amended form might ultimately provide a vehicle by which the accused could be tried in this Court, depending on what happens and how things are approached in the Youth Justice Court by both the State and the accused.
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