The State of Western Australia v G (a child) - [2009] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- G (a child) [2009] WASC 234

CORAM: BEECH J

HEARD: 12 AUGUST 2009

DELIVERED : 27 AUGUST 2009

FILE NO/S: SJA 1039 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
G (a child)
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T G SCHWASS
File No  :CC 5923 of 2008

Catchwords:

Costs - Official prosecutions - Proceedings in a summary court - Whether Children's Court exercises summary jurisdiction when determining an indictable offence - Children's Court of Western Australia Act 1988 (WA) s 19B - Whether Children's Court is a summary court only when exercising summary jurisdiction - Whether Children's Court has power to award costs when accused acquitted of indictable offence

Words and phrases - 'Summary court'

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19B
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S M Stocks
Respondent: Mr D J McKenzie

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: David John McKenzie

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

Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104
Duperouzel v Cameron [1973] WAR 181
Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628
Gidaro v Secretary Department of Social Security (1998) 83 FCR 139
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
M (a child) v The Queen (1994) 13 WAR 306
Repatriation Commission v Vietnamese Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548
Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268
The Union-Fidelity Trustee Company of Australia Ltd v The Commissioner of Taxation (Cth) [1969] HCA 36; (1969) 119 CLR 177
Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28

BEECH J:

Introduction

The State of Western Australia appeals against an order for costs made by a magistrate in the Children's Court of Western Australia. The respondent was acquitted by the learned magistrate of a charge of aggravated armed assault with intent to rob. That is an indictable offence not capable of being tried summarily under s 5 of the Criminal Code (WA). The magistrate ordered that the respondent be awarded costs of $4,000 pursuant to s 5(1) of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Costs Act). The State contends that the magistrate acted without jurisdiction in making this order because, in essence, when the Children's Court hears an indictable offence it is not a summary court for the purpose of the Costs Act. For the reasons that follow, I do not accept the State's contention.

Ground of appeal

By its appeal notice dated 28 April 2009 the State contends that the magistrate acted in excess of jurisdiction by making an order for costs on an indictable charge when no statutory authority existed for the making of such an order. The particulars of the ground of appeal may be summarised as follows:
(a)the respondent was charged with an indictable offence;
(b)the respondent did not make an election under s 19B(1) of the Children's Court of Western Australia Act 1988 (WA) (the Children's Court Act) to have the charge dealt with by the District Court or the Supreme Court, with the consequence that the Children's Court was required to deal with the charge in accordance with s 19B(4) of the Children's Court Act;
(c)section 19B(4)(c) of the Children's Court Act provides that the Children's Court shall:
… hear and determine the charge, and may exercise any power in pt 4 or 5 of the Criminal Procedure Act 2004, as if the prosecution notice were an indictment, and the hearing were a trial on indictment …
(d)'The charge against the [respondent] was heard and dealt with by a magistrate of the Children's Court as if it were on indictment in an adult court. The learned magistrate therefore had no basis in law to make an award of the costs pursuant to the [Costs Act]'.
The matters summarised in pars (a) to (c) are not controversial. I have italicised the word 'therefore' in par (d) because, as will appear, I do not accept that the second sentence follows from the premise in the first sentence of par (d). In short, in my opinion, the fact that the Children's Court hears and determines an indictable offence 'as if' the hearing were a trial on indictment does not deny the Children's Court its status as a 'summary court' for the purposes of s 4 and s 5 of the Costs Act.
I turn to the provisions of the Costs Act.

The Official Prosecutions (Accused's Costs) Act

The learned magistrate made the costs order the subject of this appeal in reliance on s 5 of the Costs Act. Section 5 states, relevantly, that 'a successful accused is entitled to his costs'. (There are qualifications to that position, but they are not relevant in the present context.) It is not in issue that the respondent was 'successful' within the meaning of s 5 read with the definitions in s 4(2) of the Costs Act. The issue is whether the respondent was an 'accused' as defined.
'Accused' is defined to mean 'a person charged with an offence in an official prosecution'. An 'official prosecution' is defined to mean 'proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of his office'. It is not in doubt that the respondent was charged with an offence by a public official acting by virtue of his office. Accordingly, the only issue is whether the Children's Court was, in this case, a 'summary court' for the purposes of s 4 and s 5 of the Costs Act. 'Summary Court' is defined in s 4 to mean 'the Magistrates Court or the Children's Court'.
Consequently, the apparent effect of s 4 and s 5 of the Costs Act is that an accused who is acquitted in the Children's Court is a 'successful accused' as defined in the Costs Act, and so is entitled to his or her costs. However, the State invites a different reading of the definition of 'summary court'.

The State's contentions

The State submits that when a court is exercising jurisdiction under s 19B(4) of the Children's Court Act it is not a 'summary court' for the purposes of the definition of summary court in s 4 of the Costs Act. That submission involves two propositions:
1.When the Children's Court acts under s 19B(4), it is not exercising summary jurisdiction and is consequently not a 'court of summary jurisdiction' within the meaning of the Criminal Procedure Act 2004 (WA).
2.The definition of summary court in s 4 of the Costs Act should be read down so as to apply to the named courts only when the court is exercising summary jurisdiction. In other words, the definition of summary court in s 4 of the Costs Act should be read as if it had the words 'when exercising summary jurisdiction', or the words 'when those courts are courts of summary jurisdiction within the meaning of the Criminal Procedure Act' added to the definition.
For reasons to be developed, I do not accept either of these propositions.
The State submits that its contentions should be considered in the context of the relevant broader statutory framework.

The broader statutory framework

The Code creates a dichotomy between indictable offences and simple offences: s 3. It also distinguishes between courts of summary jurisdiction, on the one hand, and the Supreme Court and District Court on the other.
The general rule is that an indictable offence is triable only on indictment and thus in the Supreme Court or the District Court: see s 3(2) of the Code and the definition of indictment in s 1. One exception to this general rule is created by s 5 of the Code. A court of summary jurisdiction can try an indictable offence summarily if the statute creating the offence provides a summary conviction penalty for the offence and if certain other conditions (namely the conditions stated in s 5(2) of the Code) are not fulfilled.
Other exceptions to the general rule that an indictable offence is triable only on indictment may be made by express provision in other written laws: Code s 3(2). One such exception is created by s 19B of the Children's Court Act. I will give detailed attention to that provision later in these reasons. For reasons to be developed later, s 19B(4) provides that the court hears and determines the charge as if on indictment - not that the charge is tried on indictment.
Section 3(5) of the Code provides:
(5)If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless the person is convicted of the offence by the Children’s Court under section 19B(4) of the Children's Court of Western Australia Act 1988 or another written law provides otherwise.
In the Criminal Procedure Act there is a significant dichotomy between courts of summary jurisdiction and superior courts. Different procedures apply and different powers are conferred, depending upon whether a court is a superior court or a court of summary jurisdiction: see pt 3 and pt 4 of the Criminal Procedure Act.
Before the Criminal Procedure Act came into operation the Justices Act 1902 (WA) created substantially different regimes in the Court of Petty Sessions (the predecessor to the Magistrates Court) for indictable offences and simple offences: see pt V and pt VI.
Contrary to the State's submission it seems to me that in enacting the Children's Court Act the legislature carefully chose its language, mindful of this framework.
I turn to the relevant provisions of the Children's Court Act to consider the State's first proposition, as set out in [7] above.

The Children's Court Act

The Children's Court is, as the State submits, a creature of statute with such jurisdiction as is conferred by statute.
By s 4(2) of the Children's Court Act, the Criminal Procedure Act 'applies to and in respect of proceedings before the [Children's Court] as a court of summary jurisdiction unless the [Children's Court Act] provides otherwise'.
By s 19(1) of the Children's Court Act, jurisdiction is conferred on the Children's Court to hear and determine a charge of an offence alleged to have been committed by a child.
Section 19(3) of the Children's Court Act provides as follows:
In exercising the jurisdiction conferred by this section, the Court when constituted so as not to consist of or include a judge is a court of summary jurisdiction, subject to section 19B(4)(d).
The qualification in s 19(3), by reference to s 19B(4)(d), should be noticed.
By s 19B(1) of the Children's Court Act, where a child is charged with an indictable offence that must be tried on indictment, or an offence which the court decides is to be tried on indictment, the child may elect to be tried on indictment by the Supreme Court or the District Court as the case requires.
Section 19B(3) of the Children's Court Act provides what is to occur if the child elects under s 19B(1) to be tried on indictment.
Section 19B(4) of the Children's Court Act provides as follows:
If a child does not make an election under subsection (1) -
(a)the Court, on its own motion or on the application of the child, may direct the prosecutor -
(i)to serve or cause to be served on the child (or the child's solicitor or counsel) and to lodge with the Court, within such time as is specified, any document that is required to be disclosed under section 95 of the Criminal Procedure Act 2004; and
(ii)to afford the child (or the child's solicitor or counsel) reasonable opportunity to inspect any material exhibits that the prosecution proposes to tender at the hearing of the charge;
(b)on the making of a direction under paragraph (a), the State acting by the Attorney General or some other duly appointed person shall assume the conduct of the prosecution and shall be taken to be the prosecutor;
(c)the Court shall, subject to the provisions referred to in section 19(1), hear and determine the charge, and may exercise any power in Part 4 or 5 of the Criminal Procedure Act 2004, as if the prosecution notice were an indictment, and the hearing were a trial on indictment and the Criminal Procedure Act 2004 shall apply with such modifications as circumstances require; but the child is not thereby entitled to have any issue tried by a jury; and
(d)subject to Part 5, the child, if convicted, shall, for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, be taken to have been convicted on indictment, notwithstanding that the child may have been convicted by the Court when constituted other than by a judge.
The State submits that, on a proper construction of s 19 and s 19B, when the Children's Court hears and determines an indictable offence under s 19B(4)(c) it is not exercising summary jurisdiction and is not a court of summary jurisdiction within the meaning of s 19(3). For the reasons that follow, I do not accept that submission.
First, the language of s 19B(4)(c) of the Children's Court Act is that the charge is heard and determined and powers are exercised 'as if' the hearing were a trial on indictment. That does not mean that it is a trial on indictment. The words 'as if' ordinarily connote a 'hypothesis different from the actual fact': The Union-Fidelity Trustee Company of Australia Ltd v The Commissioner of Taxation (Cth) [1969] HCA 36; (1969) 119 CLR 177, 187; Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268 [117]. In the present context, that is how I construe the words 'as if' in s 19B(4)(c).
Secondly, as the respondent emphasises, the general rule stated in s 19(3) is expressed to be subject to s 19B(4)(d), not s 19B(4)(c) and not s 19B(4) generally.
The State says that s 19(3) should be read as being subject to s 19B(4)(c) or s 19B(4) generally, notwithstanding the language of s 19(3). That is because, the State submits, it would be 'perverse' (ts 28) if the character of the jurisdiction exercised by a court were affected by the outcome of the proceedings. In the abstract, there is force in the proposition that the character of the jurisdiction exercised by a court should be ascertainable at the outset and not affected by the outcome of the proceedings. However, the question in the present case is whether, in construing s 19(3), that consideration, together with the language of s 19B(4)(c), justifies a departure from the plain words of s 19(3). I am not persuaded that departing from the plain language is justified.
The scheme created by Children's Court Act, as I construe it, may be summarised as follows. When the Children's Court is not constituted by or so as to include a Judge, it generally exercises summary jurisdiction. When it hears and determines an indictable offence under s 19B(4)(c) it does so 'as if' the hearing were a trial on indictment. It is nevertheless exercising summary jurisdiction in hearing and determining the charge. To my mind, s 19B(4)(c) controls the manner of hearing and determination of the charge; it does not control the character of the jurisdiction exercised. However, if the accused is convicted, the conviction is taken to have been on indictment: s 19B(4)(d) (see also s 3(5) of the Code). The character of the conviction is singled out for special treatment because of the significant consequences for an accused's liability to punishment and other orders and proceedings if convicted on indictment rather than summarily.
This construction may make the jurisdiction exercised by the Children's Court when it determines an indictable offence distinctive, perhaps anomalous. Nevertheless, in my opinion it reflects the intention of the legislature revealed by the Children's Court Act.

Criminal Procedure Act

The State also submits that:
(a)section 19B(4)(c) permits the Children's Court to exercise any power in pt 4 or pt 5 of the Criminal Procedure Act; and
(b)the powers in pt 4 of that Act apply only to prosecutions in the superior court.
The vesting in the Children's Court of the same powers that are available to a superior court does not seem to me to be inconsistent with the exercise of summary jurisdiction.
Section 123 of the Criminal Procedure Act is in pt 4 of that Act. Section 123(2) provides that, with an immaterial exception, 'a superior court cannot order a party to a case to pay another party's costs of or relating to proceedings in the court that relate to a charge in an indictment'. The State did not rely upon s 123(2), rightly in my opinion. That section has no bearing on the present case, for the following reasons. Section 123 of the Criminal Procedure Act is not incorporated by s 19B(4)(c) of the Children's Court Act. That section permits the Children's Court to exercise powers in pt 4 or pt 5 of the Criminal Procedure Act. Section 123 does not create any power. Section 19B(4)(c) also makes the Criminal Procedure Act applicable with such modifications as circumstances require. Section 123 denies the power of a superior court to make a costs order. The Children's Court is not a superior court. If, contrary to my opinion, circumstances do require the modification (in the sense intended in s 19B(4)(c)) of the terms of s 123 so as to render it applicable to the Children's Court, s 3(2) of the Costs Act (set out later in these reasons) would then be engaged. That would have the result of s 5 of the Costs Act prevailing over s 123 of the Criminal Procedure Act.
For these reasons, I do not accept the State's first proposition. I turn to the State's second proposition.

The proper construction of the Official Prosecutions (Accused's Costs) Act

The State's second proposition is that the power to award costs under the Costs Act arises only when a court is exercising summary jurisdiction. I deal with this contention on the assumption, contrary to my conclusion, that when the Children's Court determines an indictable offence under s 19B(4) it is not exercising summary jurisdiction.
The question is one of construction of the Costs Act. Consequently, the starting point is the language of that Act.
At times, the State submitted that the Costs Act 'relates to' or 'talks about' the court 'exercising its summary jurisdiction' (ts 9, 10). That language is not to be found in the Costs Act. The Costs Act refers to proceedings in a 'summary court' and defines 'summary court' in s 4 by specifying two courts: the Magistrates Court and the Children's Court.
The State invites a construction that reads down the definition of summary court in s 4 when it is applied to s 5. The effect of the construction invited by the State is to remove one particular category of case heard in the Children's Court from the general rule that an accused in the Children's Court or Magistrates Court can, if successful, obtain a costs order. That is achieved, on the State's construction, by reading into the language of the definition in s 4 an additional qualifying condition - that the named court be exercising summary jurisdiction.
A definition should not be construed in isolation from the substantive enactment(s) containing the word or term defined. The function of a definition is not to enact substantive law, but to assist in the construction of the statute. It is only when a definition is inserted into the relevant statutory enactment that considerations of the object and evident policy of the statute can properly be brought to bear. To construe a definition without bringing these matters to bear would be to invite error: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635.

Thus attention is to be directed to the object and evident policy of the Costs Act.
Moreover, the definitions in s 4 of the Costs Act apply 'unless the contrary intention appears': s 4(1). At the risk of stating the obvious, the contrary intention must appear in the Act in which the definition is found, not in other legislation. The contrary intention must be found within the particular context in which the defined word appears, taking into account the object and policy of the Act: Duperouzel v Cameron [1973] WAR 181, 182 ‑ 183. Context is important in ascertaining meaning. When the statutory definition is sought to be applied to a particular provision, a contrary intention may appear from the scheme and object of the Act as a whole: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104, 108; Gidaro v Secretary Department of Social Security (1998) 83 FCR 139, 150 ‑ 151; Repatriation Commission v Vietnamese Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548 [107] ‑ [109].
Applying these principles, the question is: when the definition of 'summary court' in s 4 of the Costs Act is applied to s 5, does the purpose of s 5 or the scheme and object of the Costs Act as a whole reveal a contrary intention so as to exclude the prima facie application of the definition of 'summary court' in s 4?
Apart from referring to s 4(2)(c) of the Costs Act, the State made no submissions directed to the purpose and object of s 5 or of the Costs Act as a whole.
The State submits that s 4(2)(c) of the Costs Act provides 'oblique support' for its contentions. Section 4(2)(c) affects whether an accused is 'successful'. It provides as follows:
An accused:
…
(c)is not successful if the charge is of an indictable offence and is dismissed for want of prosecution by the summary court -
(i)if section 5 of The Criminal Code applies to the charge ‑ before the summary court decides under that section that the charge is to be tried on indictment; or
(ii)otherwise ‑ before the summary court commits him for trial or sentence on the charge.
The State submits that this section reveals an intention to award costs to an accused only in summary proceedings. To my mind, that submission involves a substantial overstatement of what is revealed by s 4(2)(c). That section controls the meaning of 'successful', not the identity of the court or the nature of the jurisdiction being exercised, in order for the power to award costs under s 5 to arise. Moreover, and perhaps more significantly, the subject of matter s 4(2)(c) is relatively narrow in that it deals only with a case where a charge is dismissed for want of prosecution.
The only situation identified by the State in which the Children's Court or Magistrates Court is ever not exercising summary jurisdiction is when the Children's Court determines a charge of an indictable offence under s 19B(4). Consequently, the intention as contended for by the State - to read limiting words into the definition of 'summary court' - would be intended to control only that one situation. If, as I consider, the Children's Court exercises summary jurisdiction when it acts under s 19B(4), there would be no occasion for reading in the additional words - they would have no work to do. Assuming (contrary to my opinion), that on a proper analysis in determining an indictable offence the Children's Court is not exercising summary jurisdiction, I am unable to discern an intention in the Costs Act that that should mean that a costs order is not available to an acquitted accused.
Section 3 of the Costs Act provides:
(1)Except as otherwise provided by this section, this Act applies notwithstanding the provisions of or under any other Act, or of or under any rule of court practice.
(2)To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the accused prevails.
I accept the State's submission that if its construction of the definition of summary court is accepted, no question of inconsistency arises, so that s 3(2) is not engaged. However, s 3(1) and s 3(2) reveal an intention that an accused's entitlement to costs under the Costs Act should not be limited by any other Act or by any rule of court practice, and that the Costs Act does not limit an accused's entitlement which arises under any other Act or rule of court practice. That intention affords no support for, and may be thought to militate against, reading down the definition in s 4 so as to exclude from s 5 an accused acquitted in the Children's Court on a charge of an indictable offence.
I am not persuaded that s 5, or the scheme of the Costs Act as a whole, reveals a contrary intention so as to exclude the application of the statutory definition of 'summary court' to s 4 and s 5.
In M (a child) v The Queen (1994) 13 WAR 306 the Full Court considered the application of the Costs Act to the Children's Court. In that case, charges against a child were dismissed by a magistrate. The prosecution sought a review of that decision by the President of the Children's Court pursuant to s 40 of the Children's Court Act. The application for review was dismissed. The child applied for costs pursuant to s 5 of the Costs Act. The President declined to make the order sought on grounds including that there was no appeal from a decision of a summary court within the meaning of s 4 of the Costs Act. The Full Court upheld an appeal against the President's decision.
Seaman J (Malcolm CJ & Anderson J agreeing) expressed the view that the definition of summary court in the Costs Act is an abbreviated form of the definition 'court of summary jurisdiction' in s 5 of the Interpretation Act 1984 (WA): M (a child) v The Queen (310). At that time s 5 of the Interpretation Act provided that 'court of summary jurisdiction' means:
[A]ny justice or magistrate to whom jurisdiction is given by, or who is authorised to act under, the Justices Act 1902, and whether acting thereunder, or under any other Act or by virtue of his commission, or under the common law.
Seaman J stated that the Children's Court Act provides for a marked distinction between the jurisdiction of the magistrates and the judges of the court, and the definition 'summary court' is properly to be understood as referring to the jurisdiction of the Children's Court as exercised by a Children's Court magistrate (311).
The State submits that the decision in M (a child) v The Queen supports going beyond the express words of the definition of summary court in s 4 of the Costs Act in determining what is a summary court for the purpose of that Act. I accept that proposition. However, in M (a child) v The Queen the court went beyond the definition of s 4 of the Costs Act by having regard to s 5 of the Interpretation Act. Section 5 of the Interpretation Act now defines 'court of summary jurisdiction' to mean 'the Children's Court or the Magistrates Court'. When the approach applied in M (a child) v The Queen is applied in the present context, it does not assist the State's argument.
The State submits that 'summary court' in s 4 and s 5 of the Costs Act should be construed so as to have the same meaning as 'court of summary jurisdiction' as that term is defined in s 3 of the Criminal Procedure Act. Section 3 of the Criminal Procedure Act defines 'court of summary jurisdiction' to mean:
[A] court, or a person, acting in circumstances in which it, he or she is a court of summary jurisdiction by virtue of another written law.
I do not accept the State's submission. In some cases, where a word or phrase is defined in one Act, and the same word or phrase is used but not defined in another Act, and the Acts deal with similar subject matters, it may be permissible to have regard to the definition in the other Act. See Pearce DC & Geddes RS, Statutory Interpretation In Australia (6^th ed, 2006) [3.38]. However, with the exception of a generally applicable statute such as the Interpretation Act, a court should not use a definition of a word or phrase in one Act to qualify or extend the meaning of the statutory definition of the same word or phrase in another Act: Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28, 43. That is all the more so where, as here, the phrases are not identical.
For these reasons I am not persuaded that the definition of 'summary court' in s 4 of the Costs Act is to be read as if it had either of the alternative additional phrases contended for by the State.

Conclusion

For the reasons I have given, in my opinion:
(a)the Children's Court exercises summary jurisdiction when it hears an determines an indictable offence under s 19B(4)(c) of the Children's Court Act;
(b)in any event, there is no contrary intention revealed in the Costs Act to justify a departure from or a reading down of the definition of summary court in s 4 of that Act when applied to s 5 and the other definitions in s 4; and
(c)Consequently, the Children's Court is a 'summary court' when it hears and determines an indictable offence under s 19B(4)(c).
I would dismiss the appeal.