Terry John Adams v R No. SCCRM 95/141 Judgment No. 5326 Number of Pages 20 Criminal Law Jurisdiction, Practice and Procedure (1995) 66 Sasr 284

[1995] SASC 5326

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PERRY(2) AND LANDER(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - information, indictment or presentment - Whether District Court has jurisdiction to conduct a trial of two summary offences joined on information with an indictable offence - discussion of jurisdiction and powers of District Court Judges - classification of summary, major indictable and minor indictable offences - discussion of s102Summary Procedure Act where an information contains offences of a different class - the importance of keeping together all charges arising out of the same set of circumstances - to include in the words 'indictable offence' a 'summary offence' would be to strain the language and would make the Juries Act inconsistent with the District Court Act - present definition of 'criminal inquest' in Juries Act means a trial cannot be conducted with a jury for a summary offence. Controlled Substances Act 1984; Summary Procedure Act 1921; Judicial Administration (Auxiliary Appointmentsand Powers) Act 1988; Magistrates Act 1983; District Court Act 1991; ActsInterpretation Act 1915; Criminal Law Consolidation Act 1935; Juries Act 1927, referred to. Tarasenko v Boylan (1992) 58 SASR 587; R v The Judge of the City of London Court (1892) 1 QB 273, applied, R v Hackett (Olsson J, 24 August 1995, judgment number 5210, unreported, available on SCALE); Vacher and Sons Ltd v London Society of Compositors (1913) AC 107; BP Australia Ltd and Anor v State of South Australia (1982) 31 SASR 178, considered.

HRNG ADELAIDE, 18-19 September 1995 #DATE 20:11:1995 #ADD 13:12:1995

Counsel for appellant:     Mr M Barnett

Solicitors for appellant:    Caldicott and Co

Counsel for respondent:     Mr P J Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeals dismissed.

JUDGE1 COX J The circumstances of this appeal are set out in the reasons for judgement of Lander J which I have had the advantage of reading. In brief, the appellant was tried by a Judge and jury in the District Court on an information that charged him and one Borchardt jointly with two offences, producing cannabis (Controlled Substances Act s32(1)(a)) and possessing cannabis for sale (ibid. s32(1)(e)), and then charged the appellant alone with another offence of possessing cannabis for sale (ibid.). It is agreed that the first count alleged a major indictable offence, while the two possession charges were for summary offences, as those terms are used in the Summary Jurisdiction Act. The appellant pleaded guilty to the first count and not guilty to the other two. On the second count he was found guilty of the alternative offence of simple possession, but he was convicted on the third count as charged. He now appeals against the second and third convictions on the ground that, there being no power under the Juries Act to try anyone by Judge and jury for a summary offence, his trial on the two possession charges was a nullity.

2. For the most part I respectfully agree with the close analysis of the legislation that Lander J has made and nothing would be gained by my going over that ground in detail again. I can summarize the issue in a few words. Sections 102 and 107 of the Summary Procedure Act make it plain that a defendant may be committed for trial to the District Court on an information that includes a summary offence. One would expect from this that the information that is filed in due course in the District Court by the Director of Public Prosecutions would include the summary offence, and that all contested charges on the information would be tried together, that is, would be decided at the same time by the one fact finder. Section 9 of the DistrictCourt Act confirms the correctness of including the summary offence in the District Court information as long as there is an "indictable offence" charged in the same information. If there is not, the District Court has no jurisdiction to try the summary offence under s9: see subs(3). The question, however, is whether the Juries Act is a bar to the trial of such a composite information by a Judge and jury.

3. Section 6 of the Juries Act reads -
    "A criminal inquest in the Supreme Court or the District
    Court will, subject to this Act, be tried by a jury of
    twelve persons qualified and liable to serve as jurors as
    provided by this Act."

4. Sub-section (1) of s3 of the Juries Act provides -
    "In this Act, unless inconsistent with the context or some
    other meaning as clearly intended -
    ...
    "criminal inquest" means trial before a court of criminal
    jurisdiction of any indictable offence: ..."

5. Can "indictable offence" here include a summary offence?

6. The expression "indictable offence" does not appear to be defined in any of the relevant legislation. However, there is no doubt that it has generally signified in this State an offence that by its nature must be tried in the Supreme Court or the District Court unless (in the case only of an indictable offence that is also designated a "minor indictable offence") the defendant elects to be tried summarily. Obviously that is the meaning that "indictable offence" has in subs(3) of s9 of the District Court Act. See also s5 of the Summary Procedure Act which expressly distinguishes for the purpose of that Act summary offences and indictable offences. However, the natural meaning of the words "indictable offence", standing alone, is simply an offence triable on an indictment, which in this State is the criminal process by which a person is formally charged in the Supreme Court or District Court with a crime triable in such Court. I think that is the meaning that "indictable offence" must have in s3 of the Juries Act. So read, s3, and therefore s6, are not themselves concerned with the classification or identification or selection of specific offences as appropriate for trial by jury according to their nature or gravity or other characteristics, or depending whether they conform with the notion of an indictable offence as a technical term in other legislation, but are simply using the expression "indictable offence" to mean no more than it literally says - offence triable on indictment. To identify the kind of offences that are triable on indictment in the District Court, and are therefore indictable offences for the purpose of the Juries Act, one must look at ss102 and 107 of the Summary Procedure Act and s9 of the District CourtAct. A summary offence within the meaning of s5 of the Summary Procedure Act will in certain circumstances be such an offence.

7. I appreciate that this means that there is a sense in which a "summary offence" within the meaning of other legislation may be described as an "indictable offence" within the meaning of the Juries Act. However, there is no provision of the Juries Act which says that the Act is to be read with any other Act. Certainly the construction I favour has to accommodate the reference in s7 of the Juries Act to "a minor indictable offence", which clearly imports the technical term used in s5 of the Summary Procedure Act and s4 of the Acts Interpretation Act, but there is no necessary inconsistency about that. No doubt to interpret the s3 definition in this way is to give a general and non-technical, one may say ambulatory, signification to "indictable offence" in s3 that probably no-one would have thought of giving it previously, but that is because until recently the only court that could try a summary offence (or a simple offence, as it used to be called) was a court of summary jurisdiction. Recent legislation designed to make the jurisdiction of the District Court more flexible has changed all that. See Tarasenko v Boylan and Attorney-General for South Australia (1992) 58 SASR
587. The alternative construction of s3, that the appellant puts forward, would mean that there could never be a trial of a summary offence in the District Court by a Judge and jury, only by a Judge sitting alone, even where the summary offence is coupled on the information with a major indictable offence or a minor indictable offence. That would frustrate the clear legislative intention that underlies the 1991 amendments and produce the inconvenient practical results to which Lander J refers. It would not have been surprising had an appropriate amendment of the Juries Act been included in the 1991 legislative scheme, but in the end I have come to the conclusion that, having in mind the quite general terms of the s3 definition, no amendment was needed.

8. I would make two further comments. I prefer the above line of reasoning to any attempt to exploit the exceptive part of the headwords of the definition section (s3). I think there are problems about doing that. Secondly, I do not consider that this interpretation of "criminal inquest" in the Juries Act means that a criminal inquest under that Act may be held in the District Court into a summary offence standing alone. It would be misleading to say, on my view of the definition, simply that the reference to "indictable offence" in the definition includes a summary offence; rather, it includes a summary offence when, but only when, the information in which the summary offence is alleged charges the defendant as well with a major indictable offence or a minor indictable offence (within the meaning of the Summary Procedure Act) or both. That was the case here.

9. For these reasons, I am of the opinion that the appellant was properly tried and convicted.

10. The appellant was given leave to appeal against his sentence only because, were the summary convictions to be set aside, it would be necessary to make consequential orders with respect to the sentences. On the view that I have taken of the matter there is no need to interfere with the sentences.

11. I would dismiss the appeals against conviction and sentence.

JUDGE2 PERRY J I would dismiss the appeals against conviction and sentence for the reasons given by Cox J.

JUDGE3 LANDER J The appellant was arraigned before a Judge and jury of the District Court upon information charging him, jointly with another person, with one count of producing cannabis (s32(1)(a) Controlled Substances Act 1984) and one count of possessing cannabis for sale (s32(1)(e) Controlled Substances Act1984). He was further charged on that same information with one other count of possessing cannabis for sale.

2. Having regard to the amount of cannabis involved, each of the charges relating to possession of cannabis was a summary offence (s32(5)B(a)(iii) Controlled Substances Act 1984 and s5(2) Summary Procedure Act 1921).

3. The count relating to producing cannabis was a major indictable offence. (Section 32(5)B(a)(i) and s32(5)A(a) Controlled Substances Act and s5(3) Summary Procedure Act 1921.)

4. Upon his arraignment the appellant pleaded guilty to the charge of producing cannabis and not guilty to each of the counts relating to possession of cannabis for sale.

5. As to the first of the counts of possession he was found not guilty of possessing cannabis for sale, but guilty of the alternative offence of simple possession of cannabis, and in relation to the third count he was convicted of possession of cannabis for sale.

6. He was sentenced to six months' imprisonment on each of the convictions on the charges of producing cannabis, and of possession of cannabis for sale, which sentences were ordered to be served concurrently, and no further penalty was imposed in relation to the conviction upon the simple possession of cannabis.

7. The appellant sought leave to appeal from the conviction relating to the possession of cannabis for sale upon a variety of grounds which challenged directions given by the learned trial Judge to the jury. The application for leave to appeal was refused by Debelle J. The appellant renewed that application before this Court, which, pursuant to the Rules of Court, considered that application in private. Whilst that application was being considered, the appellant sought to add two further grounds of appeal.

8. Those grounds of appeal were:
    1. The trial of the applicant on charges of possessing
    cannabis for sale was a nullity in that these charges are
    summary offences and no power exists for them to be tried by
    a jury.

2. The sentencing discretion has miscarried in that the
    sentence of six months' imprisonment, includes a component
    for the offence of possessing cannabis for sale, which
    offence could not be tried by a jury.

9. That application to amend the application for leave to appeal to this Court was heard in private, with the original application, which sought to re-agitate the application for leave to appeal refused by Debelle J. The original application for leave to appeal was refused, but this Court gave leave to appeal in relation to the amended grounds of appeal set out above.

10. The short point raised by the appeal is whether or not the District Court had jurisdiction, in its criminal jurisdiction constituted by a Judge and a jury to conduct a trial of two summary offences, which were joined on information with an indictable offence, to which the appellant pleaded guilty.

11. The second ground of appeal would depend for its success upon the first ground being successful.

12. Judges of the District Court, like Judges and Masters of the Supreme Court may exercise the jurisdiction, powers or functions of a Magistrate (s22 Magistrates Act 1983). Section 22 provides:
    "22. Any of the following persons, namely -
    (a) a Judge of the Supreme Court; or
    (b) a Master of the Supreme Court; or
    (c) a District Court Judge,
    may exercise the jurisdiction, powers or functions of a
    magistrate."

13. Moreover, s5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 provides:
    "(1) Subject to subsection (2), a judicial officer holding
    or acting in a particular judicial office may exercise, in
    addition to the jurisdiction and powers attaching to that
    office, the jurisdiction and powers attaching to any other
    judicial office of a co-ordinate or lesser level of
    seniority.

(2) This section does not authorize a judicial officer to
    exercise the jurisdiction or powers of the Industrial Court.

(3) A judicial officer who holds a particular judicial
    office but is acting in another may adopt the title
    appropriate to that other office.

(4) A judicial officer who has been appointed to hold or
    act in a judicial office in a particular court must obtain
    the consent of the judicial head of that court before
    undertaking judicial work in another court (but such a
    consent is not required where the occasion to exercise the
    jurisdiction and powers of some other court arises
    incidentally in some matter before the court to which the
    judicial officer was appointed)."

14. The reason for the enactment of legislation providing a superior court with the jurisdiction of the Magistrates Court was to overcome circumstances where an offender was dealt with almost simultaneously in two different jurisdictions, with each jurisdiction being partly or wholly ignorant of the sentencing regime being invoked by the other jurisdiction.

15. Section 22 of the Magistrates Act authorizes a District Court Judge to exercise all of the powers and functions of a Magistrate. Section 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act allows the District Court Judge to exercise the jurisdiction of a Magistrate at the same time as the Judge is exercising the jurisdiction to which he has been appointed. Tarasenko v Boylan (1992) 58 SASR 587. Those powers and jurisdiction given to a District Court Judge were in place at the time of enactment of s9(1) of the District Court Act and so it was that at the time of the enactment of the District Court Act, a District Court Judge could exercise all of the jurisdiction and powers of a Magistrate concurrently with the exercise of that Judge's power as a District Court Judge. Indeed, prior to the District Court Act a District Court Judge could exercise the jurisdiction powers and functions of the Magistrates Court, whilst the District Court Judge was sitting in the District Court.

16. King CJ said in Tarasenko v Boylan (supra) at page 591:
    "I am of opinion therefore that a judge of the District
    Court is authorised to hear and determine charges of
    summary offences in proceedings which have been
    instituted in the Magistrates Court and that there is no
    occasion to discontinue the practice which has hitherto
    been followed. It is not necessary for the District Court
    judge to sit as the Magistrates Court. He is entitled
    to exercise the jurisdiction as a judge of the District
    Court. The proceeding is not, of course, in any sense
    removed from the Magistrates Court into the District
    Court, but is dealt with by the District Court judge
pursuant to the special powers conferred by s22 of the
    Magistrates Act and s5 of the Judicial Administration
    (Auxiliary Appointments and Powers) Act. It remains a
'criminal action' within the meaning of s3 of the
    Magistrates Court Act and an appeal would therefore be
governed by s42 of the Magistrates Court Act."

17. The combination of s22 of the Magistrates Act and s5 of the JudicialAdministration (Auxiliary Appointments and Powers) Act does not remove a summary offence into the District Court, but that offence remains a summary matter, which the District Court Judge would hear in the Magistrates Court, albeit whilst he is exercising concurrent powers as a District Court Judge.

18. The District Court Act was enacted in 1991 and came into operation on 6 July 1992 as part of a legislative scheme. A number of Acts to which reference will be made were part of that scheme.

19. The criminal jurisdiction of the District Court is provided for in s9 of the District Court Act. That reads:
    "9 (1) The Court has jurisdiction to try a charge of any
    offence except treason or murder, or a conspiracy or attempt
    to commit, or assault with intent to commit, either of those
    offences.

(2) The Court has jurisdiction to convict and sentence, or
    to sentence, a person found guilty on trial, or on his or
    her own admission, of such an offence.

(3) The Court's jurisdiction to try, convict or sentence
    for a summary offence exists only where the offence is
    charged on the same information as an indictable offence.

(4) The Court has any other criminal jurisdiction conferred
    by statute."

20. Section 9(1) of the District Court Act therefore provides that the District Court has jurisdiction to hear a charge of any offence, except the very serious offences set out in s9(1). However, s9(3) delimits the jurisdiction of the District Court by providing that it can only hear summary offences (as defined in other Acts), where those offences are charged on the same information as an indictable offence. The distinction between s9 of the District Court Act and the legislation that proceeded it is clear. In that earlier legislation, which has not been repealed, the District Court Judge sits as a Magistrate in the Magistrates Court. The Judge would exercise the jurisdiction and powers of a Magistrate, as a Magistrate and if hearing a summary matter would hear those matters in accordance with all of the procedures relating to the hearing of a summary matter, and in particular, in accordance with the Summary Procedures Act.

21. Section 9(1), however, invests the District Court with jurisdiction to hear all matters including summary matters, but only summary matters if they qualify under s9(3). A District Court Judge hearing such a matter does not hear that matter as a Magistrate, as that Judge would if exercising the powers of a Magistrate under s22 of the Magistrates Act or s5 of the Judicial Administration (Auxiliary Appointments and powers) Act. The District Court Judge hears them because the District Court has jurisdiction to hear those matters and those matters are to be heard in the District Court. They ought to be heard then according to the practices and procedures of the District Court. Any information laid in the District Court which contains a charge of an indictable offence and a charge of a summary offence must be heard in that Court unless an order is made for those charges to be heard in another Court.

22. The summary charges can be transferred to another Court pursuant to s102(3a) of the Summary Procedure Act. All of the proceedings can be transferred to the Supreme Court if an order is made under s24 of the DistrictCourt Act.

23. The District Court Act does not define a summary offence or an indictable offence.

24. Section 4 of the Acts Interpretation Act 1915 provides, inter alia, that -
    "... 'major indictable offence' means any indictable offence
    classified by statute as a major indictable offence;
    ...
    'minor indictable offence' means any indictable offence
    classified by statute as a minor indictable offence;
    ...
    'summary offence' means any offence classified by statute as
    a summary offence ..."

25. Those definitions were introduced into the Acts Interpretation Act by the Statutes Repeal and Amendment (Courts) Act 1991, which was another of those Acts which formed part of the legislative scheme to which I have already referred.

26. The Bills for the Acts to implement that legislative scheme were introduced on 14 August 1991, and the Attorney General said in his second reading speech:
    "This Bill is the first of several Bills which I will
    introduce today which will significantly reform the system
    of justice in South Australia. Significant improvements in
    the system of justice in South Australia have been made by
    the courts, the Parliament and the Government in recent
    years. The Government recognises the important work that
    the judiciary has done and is continuing to do to improve
    the administration of justice in this State. The judiciary
    has introduced significant reforms to enable the courts to
    meet the demands placed on them. In many instances the
    courts have had to work within the framework of antiquated
    legislation. The Government believes that it, and this
    Parliament, have a responsibility to establish an
    appropriate legislative framework within which the judiciary
    can most effectively deliver justice.

The Government believes that the appropriate structure for
    the court system in South Australia is as follows:
    - the jurisdiction of the Supreme Court should remain
    basically unaltered; that is, it should be the appellate
    court within the State and the trial court for more serious
    or complex trials;
     - the District Court, constituted by its own Act, should be
    the main trial court for both civil and criminal matters and
    should hear appeals from various administrative decisions;
    - the Magistrates Court, constituted by its own Act, should
    deal with committals, summary proceedings and the other
    jurisdiction presently exercised by the courts of summary
    jurisdiction and exercise the civil jurisdiction currently
    exercised by the local courts of limited jurisdiction and
    the small claims jurisdiction.

The Government believes that this new structure will have
    several advantages. Each court will be constituted by its
    own Act of Parliament and able to develop the procedures
    appropriate for its own jurisdiction. The establishment of
    the District Court by its own Act of Parliament was
    recommended by a committee chaired by the Senior Judge in
    1984 and this Bill is largely based on the recommendations
    of that committee."

27. The Acts which were passed as part of that legislative scheme were the Magistrates Court Act, the Justices Amendment Act, the Sheriff's Amendment Act, the Justices of the Peace Act, the Enforcement of Judgments Act, the Strata Titles (Resolution of Disputes) Amendment Act, and the Statutes Repeal and Amendment (Courts) Act, the last of which repealed a number of Acts and amended a number of other Acts for the purpose of implementing the legislative scheme, which as all the Acts show, had the purpose referred to in the Attorney-General's speech. The amendments were far reaching in their endeavour to provide a flexibility to the structure of each Court which would allow the judiciary as a whole to more easily deliver justice.

28. Consequential amendments were made in the Statutes Amendment (Attorney-General's Portfolio) Act 1992, which also came into operation on 6 July 1992. In particular, amendments were made to ss275 and 276 of the Criminal Law Consolidation Act 1935 to make clear that the informations there referred to also refer to informations in the District Court.

29. The legislative scheme included major amendments to the Justices Act, which was amended by Act No. 72 of 1991 and thereafter became the Summary Procedure Act 1921. Section 5 of the principal Act was repealed and a new classification of offences was provided for.

30. The Summary Procedure Act provides that offences are divided into two classes, namely, summary offences and indictable offences and within the class of indictable offences there are minor indictable offences and major indictable offences. Section 5(2) provides for those offences which may be classed as summary offences. Section 5(3) provides that all offences apart from summary offences are indictable and have particularly defines a number of offences as minor indictable offences and provides that those indictable offences which are not provided for within s5(3), are major indictable offences.

31. Part V of the Summary Procedure Act, which was also part of the legislative scheme, deals with charges of indictable offences. Section 101 provides that an information may be laid where it is suspected that an indictable offence has been committed. The information which is referred to in s101 is a different information from the informations referred to in s274 et seq. of the Criminal Law Consolidation Act, which informations are presented to the Supreme Court and the District Court. The Director of Public Prosecutions did not seek to argue, as had been argued in R v Hackett (Unreported, Olsson J, 24 August 1995, S5210), that s102 of the Summary Procedure Act applied directly to proceedings in a superior court.

32. Section 102 of the Summary Procedure Act provides:
    "(1) A person may be charged with any number of offences in
    the same information (either cumulatively or in the
    alternative) if the charges arise from the same set of
    circumstances or from a series of circumstances of the same
    or a similar character.

(2) The charges joined in the same information under
    subsection (1) may include charges of the following three
    classes or any two of those classes:
    (a) major indictable offences;
    (b) minor indictable offences;
    (c) summary offences.

(3) Subject to subsection (3a) if an information contains a
    charge of a major indictable offence, all charges of minor
    indictable or summary offences included in the same
    information will be dealt with according to the procedures
    applicable to major indictable offences and if the
    information includes a charge of a minor indictable offence,
    but no charge of a major indictable offence, all charges of
    summary offences included in the same information will be
    dealt with according to the procedures applicable to minor
    indictable offences (but the penalty that may be awarded for
    an offence is unaffected by the fact that the offence is
    dealt with according to procedures applicable to offences of
    a more serious class).

(3a) Where a person has been committed to a superior court
    for trial on an information which includes charges for both
    indictable offences and summary offences, the superior court
    may, if it thinks fit, order that the charges of summary
    offences be remitted to the Magistrates Court and dealt with
    in the same way as if the offences had been charged in a
    complaint.

(4) The Court may direct that -
    (a) charges contained in a single information be dealt with
    in separate proceedings; or
    (b) charges contained in separate informations be dealt
    with together in the same proceedings."

33. That section allows for the joinder of major indictable offences, minor indictable offences and summary offences in the same information, provided the charges arise from the same set of circumstances, or from a series of circumstances of the same or similar character.

34. Section 102 is largely concerned with the procedure in the Magistrates Court where an information contains offences of a different class, as defined in the Act, and the section prescribes the manner in which that information shall be dealt. It is not, however, only concerned with the procedure in the Magistrates Court, because it assumes (s102(3a)) a circumstance where a preliminary examination has taken place and it recognizes that there will be circumstances where a person will be committed to a superior court for trial on an information which contains both indictable offences and summary offences and that there may be circumstances where the superior court believes it more appropriate that the summary offences be remitted to the Magistrates Court to be dealt with.

35. The wording of s102(1) of the Summary Procedures Act is in a similar form to the wording of s278(1) of the Criminal Law Consolidation Act and Rule 3 of Schedule 3 of the Criminal Law Consolidation Act, to which I will return.

36. Section 102 of the Summary Procedure Act provides that where the charges are joined, then the procedure that ought to apply in relation to those charges is the procedure appropriate to the most serious of the class of charges contained in the information. That assumes that the summary charge, where there is a charge of a major indictable offence will be dealt with according to the procedures applicable to a major indictable offence.

37. Section 102(3a) assumes there will be circumstances where a person is committed to a superior court for trial on information which includes both charges for indictable offences and summary offences. It allows the superior court in those circumstances, notwithstanding that the summary offence has been committed to that superior court, to remit to the Magistrates Court the summary offence to be dealt with in the same way as if the offence had not been included within the information. It clearly assumes that a summary offence may be included in the information presented to the superior court.

38. The Magistrates Court must embark upon a preliminary examination, where an information contains either a major indictable offence or minor indictable offence, and after the conclusion of that preliminary examination, provided that the Court is of the opinion that the evidence is sufficient to put the defendant on trial for the offence, it must carry out the procedure provided for in s107(3). The Court is obliged to commit the defendant to a superior court if the defendant is charged with a major indictable offence. The Court is also obliged if the defendant is not charged with an indictable offence, but only a summary offence, to deal with that summary offence itself. Where the defendant is charged with a minor indictable offence, the Court will, depending upon the defendant's election, either commit the defendant to a superior court, or deal with the charge in the same way as a charge for a summary offence.

39. Section 107 assumes, as does 102(3a), that if there is a combination of indictable offences which either must be committed to a superior court, or may be, on the election of the defendant, committed to a superior court, and charges of summary offences upon the same information, then all of those matters will be committed to that superior court.

40. That understanding of the procedure in Part V of the Summary Procedure Act is consistent with the jurisdiction which is given to the District Court in s9. Section 9 of the District Court Act assumes that summary offences will be heard in the District Court if those offences are charged on the same information as an indictable offence, and in those circumstances, the Court has jurisdiction to try, convict and sentence for those summary offences.

41. The scheme of the legislation is to keep together all charges for offences that arise out of the same set of circumstances. That is, of course, desirable for a number of reasons. It allows, subject to the overriding discretion to grant separate trials on separate charges, for the one trial of all offences arising out of the same facts, and in that sense, achieves the ends of the administration of justice. It allows for the one Court to be aware of and to participate in the sentencing process, so that the possibility of two courts adopting different and conflicting sentencing regimes is avoided. Moreover, it allows the Court to do all of that within the exercise of its own jurisdiction, so that the judicial officer does not at the one time have to sit in separate Courts. The scheme, on the face of it, allows for the one Court to hear all those matters properly joined in the one Court. A defendant who is tried and sentenced for a summary offence, which is an offence charged in the same information as an indictable offence is tried and sentenced in the District Court by a District Court Judge.

42. The information in s9 of the District Court Act is the same information provided for in s274 et seq. of the Criminal Law Consolidation Act. Prior to 6 July 1992 an information was presented to the Supreme Court and the District Court by the Attorney-General, who could delegate that function to the Crown Prosecutor or some other person. As a further part of this restructure of the Court process and the administration of justice, the Director of Public Prosecution Act 1991 was proclaimed to commence on that date.

43. Section 7 of the Director of Public Prosecutions Act 1991, authorizes, inter alia, the Director to lay and prosecute charges of indictable or summary offences against the laws of the State.

44. The Director is entitled, after examining the depositions, to elect not to present an information if the Director thinks there is no reasonable ground for putting a person who has been committed upon his trial, but with that exception the Director is obliged to present an information in every case in which any person has been lawfully committed for trial at any criminal sessions (s276 Criminal Law Consolidation Act).

45. Moreover, the Director may present an information to put a person upon his or her trial at any criminal session of the Supreme Court or District Court (s275 Criminal Law Consolidation Act).

46. Section 275 of the Criminal Law Consolidation Act provides:
    "(1) Any person may be put upon his trial at any criminal
    sessions of the Supreme Court or District Court, for any
    offence, on an information presented to the Court in the
    name and by the authority of the Director of Public
    Prosecutions.

(2) Every rule of law and enactment for the time being in
    force in the State relating to indictments and to the manner
    and form of pleading thereto and to the trial thereon, and
    generally to all matters subsequent to the finding of the
    indictment, shall apply to any information so presented."

47. The Director is not constrained to presenting informations only for major indictable offences or minor indictable offences. The Director may present an information for any offence.

48. Section 278(1) of the Criminal Law Consolidation Act provides:
    "Subject to the provisions of this Act, charges for two or
    more offences may be joined in the same information if those
    charges are founded on the same facts, or form, or are a
    part of, a series of offences of the same or a similar
    character."

49. It is contemplated that informations in the District Court, and indeed, the Supreme Court will contain charges of a different class provided those charges are founded on the same facts, or a part of a series offences of the same or a similar character.

50. Section 277(2) of the Criminal Law Consolidation Act provides:
    "Notwithstanding any rule of law or practice, an information
    shall, subject to the provisions of this Act, not be open to
    objection in respect of its form or contents if it is framed
    in accordance with the rules under this Part."

51. The rules relating to informations are contained in Schedule 3 of the Criminal Law Consolidation Act. Rule 3 of Schedule 3 provides:
    "Charges for any offences may be joined in the same
    information if those charges are founded on the same facts
    or form, or are a part of, a series of offences of the same
    or a similar character."

52. There is nothing in ss274-278 or Schedule 3 of the Criminal LawConsolidation Act which would suggest that the Director is not able to include in an information a charge for an offence which is known in another Act as a summary offence. Indeed, the Criminal Law Consolidation Act does not attempt to inhibit the Director in the charges which the Director includes in an information, except that charges for offences can only be joined in the one information if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character. On the face of it, the Director could present an information to the Supreme Court or District Court which contained only a summary offence. But if he did present an information of that kind to the District Court, the District Court would not have jurisdiction to hear the matter (s9(3) District Court Act).

53. However, again by reference to s9(3) of the District Court Act, the legislature has assumed that the Director will present informations which allege offences that arise out of the same facts or the same circumstances, and that those offences will be of different classes.

54. Section 20(2) of the District Court Act provides:
    "If a matter lies within the criminal jurisdiction of the
    Court and is to be tried by jury, the Court will be
    constituted of a Judge sitting with a jury."

55. Section 20(2) assumes that the District Court will exercise its criminal jurisdiction other than by trial by jury. There will be times when the Court exercises its criminal jurisdiction when it convicts and sentences a person who has been found guilty on that person's own admission (s9(2) District CourtAct). Section 20(2), therefore, when it talks about a matter "to be tried by jury" is talking only of the trial and is meant there to differentiate between the trial process and the exercise of the criminal jurisdiction in the process of conviction and sentence.

56. There are circumstances where a District Court will conduct a trial within its criminal jurisdiction without a jury. That will happen in circumstances where, in a criminal inquest before that Court, and where the Court is satisfied of the matters in s7(1)(b) of the Juries Act 1927, the accused person elects to be tried by Judge alone (s7(1) Juries Act).

57. Section 20(2) of the District Court Act must be read in conjunction with the Juries Act 1937.

58. Section 6 of the Juries Act provides:
    "A criminal inquest in the Supreme Court or the District
    Court will, subject to this Act, be tried by a jury of
    twelve persons qualified and liable to serve as jurors as
    provided by this Act."

59. A criminal inquest is defined in s3(1) of the Act:
    "'criminal inquest' means trial before a court of criminal
    jurisdiction of any indictable offence."

60. It follows that any trial before the District Court of any indictable offence will, subject to the Juries Act, be tried by a jury. Section 7 allows for an election by an accused to be tried by Judge alone in the circumstances set out in s7 and the Rules of Court made under the Juries Act. Putting that aside, then s6 can be understood to be saying that a trial of any indictable offence in the District Court will be tried by a jury.

61. The appellant conceded that the procedure under s102 of the Summary Procedure Act made it clear that a superior court could try an admixture of indictable offences and summary offences. That concession was inevitable, having regard to the provisions of s102, and also s9 of the District CourtAct. However the appellant contended that notwithstanding that Parliament intended that the superior court would hear both indictable offences and summary offences simultaneously, the definition of criminal inquest in the Juries Act prevented the superior court trying the summary offences sitting with a jury.

62. The appellant contended that the Juries Act only allows for the trial by jury of an indictable offence and any summary offence joined on the same information with an indictable offence either has to be remitted to a Magistrate, pursuant to s102(3a) of the Summary Procedure Act, or if the summary offence is to be tried at the same time as the indictable offence, then it is to be tried by the Judge without jury.

63. If the first alternative is right, that is that the District Court Judge, in the circumstances mentioned, ought to remit the matter to a Magistrate, then a crucial part of the legislative scheme has failed absolutely. The purpose of the scheme is to make the system flexible. If a District Court Judge has to remit matters within the jurisdiction of the District Court, where an accused person pleaded not guilty, then the purpose of the legislative scheme would be defeated because the parties will be put to a trial in separate courts in relation to charges of offences which are founded on the same facts, or form part of a series of offences of the same or a similar character. The additional cost associated with that is self-evident, but of further concern is the risk of different verdicts which might bring the system of the administration of justice into disrepute. As well, if guilt was proved in both courts, the difficulties in sentencing would remain.

64. The alternative proposition itself raises alternatives which are no more satisfactory. The District Court Judge could try the matter as a Magistrate (s22 Magistrates Act), having first remitted the matter to himself or herself, and he or she would then try the matter summarily either at the same time or at a different time from the trial of the accused on the indictable offence, which would take place in the criminal jurisdiction of the District Court with Judge and jury. The risk of different verdicts, and the ridicule that would attach to the system is even more obvious, when the Judge in a trial by Judge alone comes to a different conclusion as to the guilt or innocence of an accused person than that arrived at by the jury, and has to publicly say so.

65. The alternative would be that the Judge will try the summary offence in the District Court jurisdiction at the same time or a different time as the Judge presides over the trial by Judge and jury of the accused person. That has all the risks and potentially unsatisfactory results as mentioned above. The last alternative has the further, and perhaps even more significant problem, if the Judge hears the charge of the summary offence at the same time as the Judge and jury consider the indictable offence, because the jury will become aware of a different charge being heard by the Judge at the same time as the jury is considering the charge of the indictable offences. On the face of it that may well be prejudicial to the accused.

66. None of the possibilities contended for by the appellant would produce a satisfactory system. One of the possibilities is likely to be prejudicial to an accused person, some of the possibilities inflict an extra burden of costs upon the parties and the system of administration of justice, and all of the possibilities have the potential to hold up the system of the administration of justice to ridicule.

67. The contentions of the appellant would, as I say, have the effect of negating an important component of the legislative scheme. The construction contended for by the appellant should be avoided if possible, but if that is the only construction, then it must be upheld.

68. Lord Esher MR said in R v The Judge of the City of London Court (1892) 1 QB 273 at 290:
    "If the words of an Act are clear, you must follow them,
    even though they lead to a manifest absurdity. The Court
    has nothing to do with the question whether the legislature
    has committed an absurdity. In my opinion, the rule has
    always been this - if the words of an Act admit of two
    interpretations, then they are not clear; and if one
    interpretation leads to an absurdity, and the other does
    not, the Court will conclude that the legislature did not
    intend to lead to an absurdity, and will adopt the other
    interpretation."

69. See also Vacher and Sons Ltd v London Society of Compositors (1913) AC
107 and BP Australia Ltd and Anor v State of South Australia (1982) 31 SASR
178.

70. The question remains whether Parliament has achieved its intention or has failed to address its mind to all of the legislation necessary to achieve the purpose which it intended.

71. The term 'indictable offence' is used in both s9 of the District CourtAct and s3 of the Juries Act. There is no definition of 'indictable offence' in either Act or any other Act, at least to my knowledge.

72. The term 'minor indictable offence' was defined in the Justices Act 1921. The same term was introduced first into the Acts Interpretation Act 1915 by s27 of the Criminal Law Consolidation Act Amendment Act 1981. The following definition was inserted in s4 of the Acts Interpretation Act:
    "'minor indictable offence' means an indictable offence that
    is a minor indictable offence within the meaning, and for
    the purposes of, the Justices Act, 1921-1981."

73. In 1981, 'minor indictable offence' was defined in the Justices Act -
    "'minor indictable offence' means indictable offence, which
    is capable of being, and is, in the opinion of the justice
    before whom the case comes, fit to be, heard and determined
    in a summary way under the provisions of Division II of Part
    V of this Act."

74. By Act No. 81 of 1984, the Juries Act was substantially amended and the District Criminal Courts Act was amended consequentially. The amending Act introduced s6 in its present form, subject to the reference now to "District Court", rather than "District Criminal Court". It also repealed the then s7 and introduced the present s7 (again subject to later minor alteration). That section refers to a minor indictable offence, an expression which had not previously been used in the Juries Act. Since 1984 the Juries Act has referred to both indictable offences and minor indictable offences.

75. The District Court Act was enacted in 1991. It also refers to indictable offences, but makes no mention of minor indictable offences, although it refers to summary offences. It is clear that in the District Court Act the expression 'indictable offence' means something other than a summary offence, because both terms are used within the same subsection, and the term 'indictable offence' could not include a summary offence in the context of that Act.

76. Whilst it is clear enough that an indictable offence does not include a summary offence in the District Court Act, unless an indictable offence includes a summary offence in the Juries Act, it seems a criminal inquest does not include a summary offence and therefore a summary offence is not to be tried by a Judge and jury.

77. The Juries Act allows for a trial by jury of an indictable offence, but that must include a trial by jury of a minor indictable offence. So much is clear from the enactment of s7, which refers to a minor indictable offence in the context of a trial by jury. The Juries Act in s7 recognizes that the trial by Judge alone of a minor indictable offence is not a right available if a person has elected to be tried in the District Court. It recognizes that but for that election, the accused faced with a minor indictable offence will be tried in the Magistrates Court.

78. It remains to be considered whether the expression 'indictable offence', in the definition of 'criminal inquest' in the Juries Act not only includes 'minor indictable offence', but also a summary offence. I think it does not.

79. If indictable offence, in the definition of criminal inquest in the Juries Act includes a summary offence, then that would lead to the extraordinary result that a criminal inquest may be held, in the contemplation of the Juries Act, into a summary offence standing alone.

80. Whilst I have already noticed, in theory, the Criminal Law ConsolidationAct, does not prevent an information being drawn which only includes a summary offence, the District Court would, because of s9(3), not have jurisdiction to entertain the information.

81. An indictable offence is an offence which proceeds upon indictment or information, whilst a summary offence is a statutory offence which is meant to be disposed of summarily, and not be the subject of trial by jury.

82. In those circumstances, to include in the words, 'indictable offence', a 'summary offence' would be to strain the language. It would also make the Juries Act inconsistent with the District Court Act. It would lead to the strange result that for the purpose of determining jurisdiction, an indictable offence does not include a summary offence, but once jurisdiction is assumed, and for the purpose of proceeding, an indictable offence does include a summary offence.

83. I do not believe that the Juries Act contemplates a criminal inquest into a summary offence whether standing alone or joined in an information with an indictable or minor indictable offence. I believe that the Juries Act intends that criminal inquests shall be restricted to indictable offences, and minor indictable offences, and in the case of the latter, only where an election has been made to be tried before a Judge and jury in the District Court.

84. It follows, in my opinion, that whilst the District Court Act allows for the exercise of jurisdiction in accordance with s9(3), it may only conduct a trial by jury of indictable offences (including minor indictable offences), and any summary offences for which it is given jurisdiction must be tried without a jury, or must be remitted to the Magistrates Court for disposal.

85. I think that, notwithstanding the intention of the Parliament in 1991, expressed as it was in the legislation which was proclaimed on 6 July 1992, that indictable offences and summary offences ought to be tried together, the failure to amend the Juries Act to include for that possibility has frustrated that intention.

86. Whilst the definition of 'criminal inquest' remains in its present form in the Juries Act, a trial can only be conducted with a jury when a person is charged with a major indictable offence, or when a person is charged with a minor indictable offence and has elected to be tried in the District Court. I accept that the decision at which I have arrived is most unfortunate.

87. In my opinion, the appellants' appeal on ground one must succeed. I turn to the question of the second ground which must be addressed upon the basis that the conviction of possessing cannabis for sale was a nullity.

88. The appellant submitted that the sentencing discretion miscarried in that the sentence of six months' imprisonment included a component for the offence of possessing cannabis for sale, which offence could not be tried by a jury.

89. The appellant was sentenced to six months' imprisonment on his conviction for the major indictable offence of producing cannabis. He was also sentenced to six months' imprisonment, to be served concurrently, upon the conviction for possession of cannabis which upon my reasons cannot stand.

90. In sentencing the appellant the learned Judge said:
    "The prosecution do not say you were a big trader; plainly,
    you were not. Nonetheless, you were engaged in a commercial
    operation for profit.

You are now 46. You have an extensive criminal record. In
    recent years your offending has been persistent, although
    not for serious crimes as it was in your earlier years.

Although these are your first convictions for commercial
    involvement in cannabis, you have a number of convictions
    for possession of cannabis. You have in the past breached
    suspended sentences. In the fairly recent past, that is
    since the late 1980s, you appear to have been extended a
    good deal of leniency in the form of suspended sentences,
    but you have kept offending.

In June 1993, in this Court, suspended sentences imposed in
    1990 were carried into effect an in all you faced 32 weeks
    imprisonment. I do not know precisely when you were
    released, but the cannabis plants growing in this case in
    March 1994 were several months old, so you must have
    embarked on the cultivation fairly soon after your release.
    I am sure you did it with your eyes open and aware of the
    risk you took."

91. His Honour then refused to suspend that sentence because, as he said, the Court of Criminal Appeal has made it plain that commercial involvement in any drug, including cannabis, calls for a custodial sentence. He did, however impose a lesser sentence because of the appellant's health, and particularly, his back pain.

92. As his Honour said, the appellant, who is aged 46, has had a long history, since 1965, of involvement with the criminal justice system and he has had a number of opportunities which he has failed to take advantage of in the past.

93. It seems to me that the sentence of six months' imprisonment for the offence of producing cannabis was, in the circumstances of this man's previous history, and in the circumstances of the offence, not an inappropriate penalty. The applicant has not been able to demonstrate that the sentence of imprisonment of six months was manifestly excessive or otherwise tainted by error.

94. Whilst I would allow the appeal for the purpose of quashing the conviction for the offence of possession of cannabis for sale, and by quashing the conviction for possession of cannabis, I would dismiss the appeal against the sentence for the offence of producing cannabis.