Williams v Hand
[2014] VSC 527
•24 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 1582
| DALE DAVID WILLIAMS | Plaintiff |
| v | |
| SENIOR CONSTABLE DYLAN HAND THE MAGISTRATES' COURT OF VICTORIA | First Defendant Second Defendant |
---
JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2014 |
DATE OF JUDGMENT: | 24 October 2014 |
CASE MAY BE CITED AS: | Williams v Hand and Anor |
MEDIUM NEUTRAL CITATION: | [2014] VSC 527 First Amendment, 26 November 2014 |
---
ADMINISTRATIVE LAW — Judicial review — Order for summary hearing and determination of indictable offences — Subsequent order terminating summary hearing and remanding accused for committal hearing — Power to terminate summary hearing of indictable offences — Failure to comply with mandatory condition for determining whether summary hearing of indictable offences is appropriate — Criminal Procedure Act 2009, ss 28, 29, 30, 50, 51, 97, 168, 337 — Refusal to stand down proceeding — Denial of procedural fairness.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Boyce | Grigor Lawyers |
| For the First Defendant For the Second Defendant | Mr R Elston QC No appearance | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 2 August 2013, the plaintiff was charged with the following offences under ss 5(1), 7B(1) and 129A of the Firearms Act 1996 (‘Firearms Act’):
·being a prohibited person in possession of a firearm
·possession of a firearm on which the serial number has been defaced or altered in a manner otherwise than in accordance with the Firearms Act;
·being a person who possesses a firearm and who does not hold a licence under the Firearms Act authorising the possession of that firearm where that person did fail to store that firearm or any cartridge ammunition in his or her possession in a secure manner.
On 5 August 2013, the plaintiff made a bail application before the Magistrates’ Court at Frankston, constituted by Holzer M. The transcript of the bail application and the orders made by his Honour were tendered in evidence.[1] During the course of the bail application, Holzer M was apprised of the nature of the offences alleged against the plaintiff and the plaintiff’s criminal history. On 5 August 2013, a request for a summary hearing of the charges under the Firearms Act was signed by the counsel for the plaintiff and also signed on behalf of the police prosecutor.[2] At the conclusion of the hearing before Holzer M on 5 August 2013 he remanded the plaintiff to appear at Frankston Magistrates’ Court on 5 February 2014 for a contested summary hearing.
[1]Exhibit AG4 to the supplementary affidavit of Alistair Grigor affirmed 5 May 2014.
[2]Exhibit AG5 to the supplementary affidavit of Alistair Grigor, affirmed 5 May 2014.
On 13 January 2014, the plaintiff was charged with a further three offences in lieu of those set out above. These offences were in essentially the same terms as the offences referred to above, save for the fact that the new charges alleged that the relevant offending had occurred between 8 September 2011 and 11 January 2012.
On 5 February 2014 the contested summary hearing commenced before the Magistrates’ Court at Frankston. A magistrate other than Holzer M had been assigned the hearing. The prosecutor applied successfully to have the charges of 2 August 2013 struck out. Throughout the hearing on 5 February 2014 the prosecution called seven witnesses, each of whom was cross-examined by counsel for the accused.
The transcript of the proceedings before the court was tendered in evidence.[3] On the morning of 6 February 2014 at the commencement of proceedings, the magistrate made the following statement:
I’ve considered this matter this morning and I notice there’s prospectively 10 year, four year and seven year maximum for these offences. I think the matter ought to go for trial. I don’t think the matter should be heard here at all. That might have been the answer to your problem yesterday, Mr Oldis, but I certainly didn’t think of it now but I have certainly heard enough to take the view that the matter ought to be sent for trial. There are other aspects of it that suggest it should, but it is by and large simply the maximum sentence for one is 10 years; that’s the prohibited person, as you know, and that stands alone. So we’d better get a date for a filing hearing I think.
[3]Exhibit AG3 to the supplementary affidavit of Alistair Grigor, affirmed 4 April 2014.
Following the statement set out above, counsel for the accused requested that the matter be stood down. This request was not acceded to by the magistrate. Following various exchanges between the magistrate and counsel for the accused, the details of which shall be referred to later in these reasons for judgment, the magistrate made an order,[4] which included the following:
Remanded to Melbourne Magistrates’ Court on 11/02/2014 9am
Criminal proceedings discontinued on 06/02/2014 and a new trial ordered.
It was an agreed matter before me that the reference in the order to the accused being remanded to appear at the Melbourne Magistrates’ Court on 11 February 2014 at 9.00am, was a reference to the plaintiff being remanded to appear at a filing hearing for a committal proceeding.
[4]Exhibit AG3 to the supplementary affidavit of Alistair Grigor, affirmed 11 April 2014
By his amended originating motion dated 2 October 2014, the plaintiff seeks, inter alia, the following orders:
(a)An order in the nature of certiorari quashing the Order made by magistrate Crisp of the Magistrates’ Court of Victoria sitting at Frankston on 6 February 2014, whereby his Honour refused to hear and determine summarily and in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 the criminal charges preferred against the plaintiff.
(b) An order in the nature of mandamus directing:
(i)that the criminal charges preferred against the plaintiff be heard and determined summarily in the Magistrates’ Court of Victoria in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 before a different magistrate, or alternatively,
(ii)that a different, or alternatively, the same, magistrate reconsider according to law whether or not to hear and determine the criminal charges preferred against the plaintiff summarily in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act2009.
The plaintiff advances four grounds in support of the relief which is sought:
(a)the second defendant committed an error of law on the face of the record and/or jurisdictional error in refusing to exercise the jurisdiction conferred upon it to hear and determine the criminal charges preferred against the plaintiff summarily in the Magistrates’ Court in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 when there was no power to refuse to exercise such jurisdiction (‘ground one’);
(b)the second defendant committed an error of law on the face of the record and/or jurisdictional error in refusing to exercising the jurisdiction conferred upon it to hear and determine the criminal charges preferred against the plaintiff summarily in the Magistrates’ Court in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 by failing properly to exercise the power that was conferred on the second defendant to refuse to exercise such jurisdiction (‘ground two’);
(c)the second defendant erred in law by failing to accord the plaintiff procedural fairness in deciding whether to hear and determine the criminal charges preferred against the plaintiff in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009 (‘ground three’); and
(d)the second defendant erred in law by conducting the proceeding in which the plaintiff was prosecuted in the Magistrates’ Court on 5 and 6 February 2014 in a manner such that a fair-minded lay observer might reasonably have apprehended that the magistrate hearing the matter might not have brought an impartial mind to the resolution of the plaintiff’s guilt or innocence (‘ground four’).
Relevant provisions of the Criminal Procedure Act 2009
Section 28(1) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’) identifies indictable offences which may be heard and determined summarily by the Magistrates’ Court. The three charges under the Firearms Act preferred against the plaintiff are offences within the terms of s 28 which may be heard and determined summarily by the Magistrates’ Court.
Section 29(1) of the Criminal Procedure Act provides that the Magistrates’ Court may hear and determine summarily a charge for an offence to which s 28(1) applies if the court considers that the charge is appropriate to be determined summarily, having regard to the matters in sub-s (2); and the accused consents to a summary hearing.
Section 29(2) prescribes the criteria which the Magistrates’ Court must have regard to when considering whether it is appropriate for a charge to be determined summarily. The matters are:
(a) The seriousness of the offence including –
(i) the nature of the offence; and
(ii)the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii)whether the offence forms part of a series of offences being alleged against the accused; and
(iv)the complexity of the proceeding for determining the charge; and
(b)the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c)whether a co-accused is charged with the same offence; and
(d)any other matter that the court considers relevant.
Section 30 of the Criminal Procedure Act provides as follows:
30Procedure for indictable offences that may be heard and determined summarily
(1)The informant or the accused may apply for a summary hearing under section 29(1).
(2)Without any application under subsection (1), the Magistrates' Court may offer a summary hearing under section 29(1).
(3)An application for, or an offer of, a summary hearing may be made at any time before the Magistrates' Court determines whether to commit the accused for trial.
Note
Section 6(4) provides that an informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.
(4)If an application for a summary hearing is made before the hearing of any evidence, the Magistrates' Court may seek from the prosecutor or, if the informant is appearing in person, the informant and he or she must give—
(a)an outline of the evidence which will be presented for the prosecution; and
(b)any other information which the court considers relevant—
for the purpose of enabling the court to determine whether to grant a summary hearing.
(5)Any statement made by the prosecutor or informant under subsection (4) is not admissible in evidence in any subsequent proceeding in respect of the charge.
(6)If the Magistrates' Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3.
Note
Sections 112A to 113D of the Sentencing Act 1991 provide for maximum penalties in the Magistrates' Court.
(7) Subject to subsection (8), if—
(a)a committal hearing commences; and
(b)the Magistrates' Court subsequently grants a summary hearing—
the court may, with the consent of the accused, admit as evidence in the summary hearing—
(c) the oral evidence of any witness; and
(d) the statement of any witness; and
(e) any document or exhibit—
given or tendered during the committal hearing.
(8) If evidence is admitted under subsection (7)—
(a)the Magistrates' Court must, at the request of the informant or the accused, call or recall (as the case requires) any witness for examination or cross-examination; and
(b)the hearing must otherwise be conducted in the same manner as a proceeding for a summary offence.
Section 337 provides as follows:
337 Court may act on application or on own motion
(1)Unless the context otherwise requires, a power or discretion conferred on a court by or under this Act may be exercised by the court on the application of a party or on its own motion.
(2)Unless the context otherwise requires, a power or discretion referred to in subsection (1) includes a power or discretion to revoke or vary a decision or order made in the exercise of that power or discretion.
Ground 1: parties’ submissions
Counsel for the plaintiff submitted that in circumstances where the Magistrates’ Court constituted by Holzer M made an order on 5 August 2013 that the criminal charges against the plaintiff be heard and determined summarily, the Magistrates’ Court constituted by the another magistrate did not have power on 6 February 2014 to terminate the summary hearing midstream and to remand the plaintiff for a filing hearing for a committal proceeding.
The plaintiff’s counsel submitted that the Magistrates’ Court has no inherent jurisdiction, as its powers are prescribed by statute. However, it does possess jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. Counsel submitted that such powers are confined to those which can be derived by implication from statutory provisions conferring jurisdiction.[5]
[5]Grassby v The Queen (1989) 168 CLR 1, 16-17 and 17 (Dawson J).
The plaintiff’s counsel submitted that in the absence of an express power to do so, in circumstances where an order has been made by the court that indictable offences be heard summarily, there is no legitimate basis for implying a power for the Magistrates’ Court to terminate the summary hearing and remand an accused for a committal hearing.[6]
[6]Oceanic Sunline Shipping Co Inc v Fay (1988) 165 CLR 197, 241 (Deane J).
The plaintiff’s counsel submitted that there are fundamental differences between a summary hearing of an indictable offence and a committal proceeding. In the latter, an accused has the ability to ‘keep his powder dry’. Counsel for the accused is not subject to the rules in Browne v Dunn[7] and is not under any obligation to cross-examine Crown witnesses in detail or at all. The differences between a summary hearing and a committal proceeding give rise to a risk of significant prejudice to an accused if the Magistrates’ Court has power to terminate a summary hearing and remand an accused for a committal hearing.
[7](1894) 6 R 67 (HL).
The plaintiff’s counsel submitted that s 30(6) of the Criminal Procedure Act provides that if the Magistrates’ Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3 of the Criminal Procedure Act. The mandatory language of s 30(6) is inconsistent with the court having a discretion midway through a summary hearing to terminate the hearing and remand an accused for a committal hearing.
The plaintiff’s counsel pointed to the fact that s 30(7) and (8) expressly contemplate that after the commencement of a committal hearing, the Magistrates’ Court may grant a summary hearing. There are express provisions which govern the admissibility of evidence given or tendered in the committal proceedings in a subsequent summary hearing. The admissibility of such evidence in the summary hearing is conditional upon the consent of the accused. In contrast, no express provision is made as to the admissibility of evidence given in a summary hearing prior to its termination, in any subsequent committal proceeding. The absence of any provisions regulating the admissibility of evidence given in a summary hearing in a subsequent committal proceeding supports the conclusion that the Criminal Procedure Act does not contemplate that, once an order has been made for indictable offences to be heard summarily, the Magistrates’ Court has power to order that an accused submit to a committal proceeding.
Counsel submitted that s 337(2) of the Criminal Procedure Act did not confer any power upon the magistrate to revoke the order of Holzer M granting the plaintiff a summary hearing. First, counsel submitted that the power of the Magistrates’ Court to grant a summary hearing is not a power or discretion within the meaning of s 337(1), with the consequence that the power of revocation in s 337(2) is not applicable. In support of this submission, counsel called in aid the explanatory memorandum for cl 337 of the Criminal Procedure Bill 2008 (which corresponded with s 337(1) of the Act) and cl 38 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 (which corresponded with s 337(2) of the Act).
Clause 337 of the Explanatory Memorandum for the Criminal Procedure Bill 2008 provides:
Clause 337 provides that, unless the context otherwise requires, a power or discretion conferred on a court by or under this Bill may be exercised by the court on the application of a party to a criminal proceeding or on its own motion. As a result of this general power, specific references in other clauses to this issue have been removed.
Clause 38 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 stated as follows:
Clause 38 inserts a new subsection (2) in s 337 of the Criminal Procedure Act 2009. Section 337 provides that a court may exercise a power or discretion on the application of a party or on its own motion. To ensure that this power is not interpreted in a limited manner, new sub-s (2) provides that unless the context otherwise requires, the court may vary or revoke any decision or other order it makes on the application of a party or on its own motion.
The plaintiff’s counsel submitted that, in contra distinction to cl 337 of the Explanatory Memorandum for the Criminal Procedure Bill 2008, s 30(1) and (2) of the Criminal Procedure Act expressly provide that the power to order a summary hearing may be exercised upon the application of the informant or the accused (s 30(1)) or on its own motion (s 30(2)). Counsel submitted that the retention of the express power in s 30(1) and (2) for the Magistrates’ Court to act on either the application of a party to a criminal proceeding or of its own motion, supported the conclusion that these powers are not subject to the power of revocation in s 337(2). In the alternative, counsel submitted that if the power conferred by s 30(1) and (2) are, prima facie, subject to the operation of s 337(2), the power of revocation contained therein does not apply to the exercise of the powers conferred by s 30(1) and (2) because the qualification in the opening words of s 337(2) (‘unless the context otherwise requires’) is engaged. Counsel submitted that the scheme of the Criminal Procedure Act and the potential for serious unfairness to be visited upon an accused if the Magistrates’ Court has power to revoke an order for a summary hearing, lead to the conclusion that the power prescribed by s 337(2) is not available in respect of an order for indictable offences to be heard and determined summarily.
Counsel for the first defendant submitted that the jurisdiction of the Magistrates’ Court to hear and determine an indictable offence summarily is subject to a magistrate being satisfied that the criteria in s 29(2) have been met. He submitted that if at any time prior to the determination of a summary hearing, the magistrate considers that, having regard to the matters prescribed in s 29(2), it is no longer appropriate to determine an indictable offence summarily, the summary hearing must be discontinued.
Counsel for the first defendant submitted that having heard the evidence of seven prosecution witnesses on 5 February 2014 it became clear to the magistrate that if he found the charges proved he would not be able to impose an adequate sentence as required by law. As such, the condition prescribed by s 29(2)(b) was not met and the court had no jurisdiction do continue the summary hearing of the indictable offences.
Counsel submitted that just as s 30(3) confers a power upon the court to offer a summary hearing at any time prior to committing an accused for trial, so too the court has power to refer an accused to a committal hearing at any time prior to the determination of a summary hearing.
Counsel submitted that it would be contrary to public policy to hold otherwise, because summary hearings should be confined to those cases where the power to administer punishment is adequate. Counsel submitted that the discretion conferred upon a magistrate by s 29(2) is in very broad terms and can be exercised at any time prior to the determination of a summary hearing of indictable offences.
Counsel submitted that in circumstances where Holzer M had made an order for a summary hearing, s 337(2) conferred power to revoke that order upon the magistrate presiding over the summary hearing. Counsel submitted that there was no basis for restricting the exercise of the power in s 337(2). He submitted that the qualifying words in s 337(2) (‘unless the context otherwise requires’) had no work to do in circumstances where a magistrate considers that the criteria in s 29(2) are no longer satisfied.
Ground 2: submissions of the parties
Counsel for the plaintiff submitted that, if the magistrate did have power to terminate the summary hearing on 6 February 2014, the exercise of that power was tainted by jurisdictional error. Counsel submitted that the sole reason articulated by the magistrate for terminating the summary hearing was his opinion that the sentencing powers of the Magistrates’ Court in respect of the three offences were inadequate. Counsel submitted that s 29(2)(b) mandates that where the court has regard to the adequacy of sentences available to the court for determining whether an indictable offence should be heard summarily, the court must also have regard to the criminal record of the accused. Counsel submitted that the court’s order was tainted by jurisdictional error because the magistrate failed to have regard to the plaintiff’s criminal record and this was a matter which s 29(2)(b) mandated was an essential precondition to a determination of whether an indictable offence should be heard and determined summarily.
In reply, counsel for the first defendant advanced two submission. First, he submitted that when considering the adequacy of the sentencing options, the court did have regard to the plaintiff’s criminal record. Counsel conceded that on the evidence before me it would not be open to make a finding that the court had the criminal record of the plaintiff before him. However, counsel submitted that the magistrate should nevertheless be regarded as having had regard to the plaintiff’s criminal record, by reason of the fact that the charge that the plaintiff had breached s 5(1) of the Firearms Act referred to the plaintiff as a ‘prohibited person’ within the meaning of s 3 of that Act. Counsel submitted that the magistrate’s knowledge that the plaintiff was a prohibited person brought with it a sufficient criminal history to provide the magistrate with notice that he would not have had the power to impose an appropriate sentence.
Counsel further submitted that the magistrate’s consideration of the adequacy of the Magistrates’ Court’s sentencing powers fell within the terms of s 29(2)(d), ie ‘any other matter that the court considers relevant’. Counsel submitted that the broad discretion conferred by s 29(2)(d) permitted the magistrate to have regard to the adequacy of sentencing options without having regard to the plaintiff’s criminal record.
Ground 3: parties’ submissions
Counsel for the plaintiff submitted that the court’s order to terminate the summary hearing and to order the plaintiff be remanded for a committal hearing was tainted by jurisdictional error by reason of a denial of natural justice. Counsel submitted that the denial of natural justice was constituted by the refusal of the magistrate to accede to a number of requests made by the plaintiff’s counsel on the morning of 6 February 2014 for the proceedings to be stood down. This occurred in circumstances where counsel had indicated that he had been taken by surprise by the magistrate’s statement at the commencement of proceedings that he intended to terminate the summary hearing. Further, counsel submitted that the transcript of the proceedings of 6 February 2014 disclosed that the magistrate had predetermined the issue of whether or not the summary hearing should be terminated and effectively denied the accused’s counsel the opportunity to put submissions as to whether or not the summary hearing should be terminated.
Counsel for the first defendant submitted that the question of whether or not the Magistrates’ Court had jurisdiction to continue to hear and determine the indictable offences summarily was a matter for the magistrate. Once he had formed the view that it was not appropriate for the indictable offences to be heard summarily because of the inadequacy of the sentencing options available, nothing which the accused’s counsel might have advanced by way of submission would have had any bearing on this issue.
Ground 4: parties submissions
Counsel for the plaintiff submitted that the matters advanced in support of the contention that the magistrate denied the plaintiff procedural fairness, also supported a conclusion that a fair-minded lay-observer might reasonably have apprehended that the magistrate might not have brought an impartial mind to the resolution of the question of whether the plaintiff was guilty of the offences with which he had been charged. In addition, counsel pointed to observations which were made by the magistrate on the first day of hearing when he rejected an application for an adjournment. Counsel submitted that the magistrate was unfairly critical of the plaintiff’s legal representatives. Further, counsel pointed to the following statement which was made by the magistrate on the first day of hearing:
I wouldn’t want to be a policeman. I wouldn’t want to be a prosecutor. I’d much rather be a defence counsel. And when you look at it from that point of view, they do manage it, it is very disciplined, and I say there’s a hail of criticism ready for every mistake they make and yet they still do it. Solicitors should be able to do it easily. It shouldn’t be a problem.[8]
[8]T12:8–14.
Counsel for the first defendant submitted that none of the matters relied upon by the plaintiff support a finding of apprehended bias. Counsel submitted that the proceeding was not one in which the magistrate had prejudged any issues. Rather, the magistrate had the benefit of a substantial body of evidence during the first day of hearing which led him to the conclusion, expressed at the commencement of the second day’s hearing, that a summary hearing was inappropriate having regard to the inadequate sentencing range.
Did the court have power to terminate the summary hearing of the indictable offences with which the plaintiff was charged and remand him for a committal hearing?
The source of the Magistrates’ Court’s jurisdiction to hear and determine an indictable offence summarily is twofold. First, s 25(1)(b) of the Magistrates’ Court Act 1989 (‘Magistrates’ Court Act’) provides that the court has jurisdiction to hear and determine all indictable offences which may be heard and determined summarily. Section 25(2) provides that the jurisdiction given by s 25(1) is additional to any other jurisdiction of the court with respect to a criminal proceeding by or under any Act other than this Act.
The second source of the court’s jurisdiction to hear and determine an indictable offence summarily is s 28 and s 29 of the Criminal Procedure Act, to which reference has already been made.
The jurisdiction of the Magistrates’ Court, and its predecessors, to hear and determine indictable offences summarily, is of very longstanding. Immediately prior to the enactment of the Criminal Procedure Act, the jurisdiction which is now conferred by s 28 and s 29 of that Act was found in s 53 of the Magistrates’ Court Act. The matters currently prescribed by s 29(2) were, subject to minor differences in wording, prescribed by s 53(3) and (4) of the Magistrates’ Court Act. Section 53(3) and (4) were inserted into the Magistrates’ Court Act by s 22(2) of the Courts Legislation (Jurisdiction) Act 2006 (Vic) (‘the 2006 Act’).
The second reading speech for the 2006 Act was made by the Attorney-General, Mr Robert Hulls, on 7 June 2006. The relevant parts of the speech are as follows:
Indictable offences triable summarily
By broadening the range of indictable offences that can be heard summarily if the court and the defendant agree, the Bill will help to ensure that jury trials are confined to appropriate cases.
Many indictable offences can be, and are, already dealt with fairly and efficiently in the Magistrates’ Court.
The Bill will allow a number of additional offences, including common law assault and affray, to be dealt with summarily, as well as a range of offences involving property valued up to $100,000, up from the current limit of $25,000.
These changes will enable more cases to be heard in the lowest appropriate jurisdiction, which is an important principle of the government’s justice statement.
The Bill also makes changes to the process by which the court decides whether it is appropriate hear an indictable offence summarily.
There are currently no legislative criteria for the court to use in making such decisions. The Bill introduces a number of criteria, including the seriousness of the offence and the adequacy of the available sentencing orders if the charge is heard summarily.
The court will also consider any prior convictions of the defendant. This list is not intended to limit the discretion of the court. It is an inclusive list which allows consideration of any other relevant matters. It is intended to assist the court in its decision-making process and enhance the transparency of this process by specifying key relevant considerations.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 7 June 2006, 1775-6.
The Explanatory Memorandum for the 2006 Act says in relation to s 22:
Clause 22 amends the provisions relating to indictable offences triable summarily, to reflect the principle that offences should be tried in the lowest appropriate jurisdiction, and to enhance the transparency of the Court’s decision making process by specifying key relevant considerations.
A new section 53(1A) is substituted to broaden the range of indictable offences that may be heard and determined summarily to include all indictable and common law offences that are punishable by 10 years or less imprisonment or a maximum of 1200 penalty units, or both, unless the contrary intention appears in any Act or subordinate instrument.
New sections 53(3) and (4) set out criteria to assist the Court in determining whether a charge is appropriate to be determined summarily. The new provisions specifically provide that the Court will need to be informed about, and have regard to, any prior convictions or findings of guilt of the defendant.
New section 53(5) makes it clear that these criteria only apply to the Magistrates’ Court (not the Children’s Court).
Schedule 4 to the Magistrates’ Court Act 1989 is amended to expand the list of indictable offences that may be heard and determined summarily and to increase the monetary limit of property offences listed in Schedule 4 from $25,000 to $100,000.
Prior to the amendments to s 53 of the Magistrates’ Court Act which were introduced by s 22 of the 2006 Act, s 53 of the Magistrates’ Court Act provided:
53(1)If a defendant is charged before the Court with any offence referred to in Schedule 4, the Court may hear and determine the charge summarily if –
(a)the Court is of the opinion that the charge is appropriate to be determined summarily; and
(b)the defendant consents to a summary hearing.
(2)Subsection (1) applies even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed.
Prior to the Magistrates’ Court Act, the jurisdiction of the Magistrates’ Court to hear and determine indictable offences summarily was conferred by ss 71(1)‑(4) of the Magistrate’s (Summary Proceedings) Act 1975 which provided:
71(1)Where a person is charged before a justice with an indictable offence with which a Magistrates’ Court has power to deal summarily, the justice before whom the person is charged may, without prejudice to any other power conferred upon him –
(a)for the purpose of ascertaining whether it is expedient to deal with the case summarily – from time to time, either before or during the hearing of the case, adjourn the case and remand the person accused or admit him to bail upon his entering into a recognizance for a reasonable amount with or without sureties at the discretion of the justice conditioned for the appearance of the accused person at the time and place to which the case is adjourned; and
(b)if the justice thinks the case proper to be dealt with summarily – adjourn the case and remand the person accused or admit him to bail until the next sitting of the Magistrates’ Court held at the place where the justice is then sitting, or if there is none then to the next practicable sitting of the Magistrates’ Court held at the place nearest thereto.
(2)A person may be remanded under this section in like manner in all respects as a person accused of an indictable offence may be remanded under the provisions of this Part, with the addition that where the accused person is remanded to the next or next practicable sitting of the Magistrates’ Court under sub-section (1) he may be remanded for more than fifteen days.
(3)All persons whose attendance has been required by summons before a justice in any case which is adjourned to be dealt with summarily by a Magistrates’ Court shall attend at the time and place to which the adjournment takes place without the issue of a further summons, and every such person who fails without lawful excuse so to attend may be dealt with as if he had originally disobeyed the summons.
(4)Where a person is charged before justices with an indictable offence with which a Magistrates’ Court has power to deal summarily and the justices are sitting as a Magistrates’ Court and think the case proper to be dealt with summarily, the Court may proceed forthwith to deal summarily with the offence.
Provisions in identical terms to s 71(1)-(4) can be traced back to s 57 of the Justices Act 1915.[10]
[10]See Justices Act 1958 (Vic), s 59; Justices Act 1957 (Vic), s 59; Justice Act 1928 (Vic), s 57; Justices Act 1915 (Vic), s 54. See also Justices Act 1890 (Vic), s 54.
The legislative history of the provisions currently found in Part 3-1 of Chapter 3 of the Criminal Procedure Act is consistent with a longstanding recognition by Parliament that the interests of the administration of justice are well served by vesting the Magistrates’ Court with jurisdiction to hear and determine indictable offences.[11] The expansion in the range of indictable offences which may be heard summarily has been accompanied by the introduction of legislative criteria to which the Magistrates’ Court must have regard.
[11]See Prosecution Without Trial, Butterworths, 1989, John Bishop, pp 105-106 for a summary of the many advantages of summary disposition of trial: ‘If speed and efficiency were the only criteria, summary disposition would win hands down’ at p 105.
The submissions advanced by counsel for the plaintiff and the first defendant in respect of ground 1 in support of the relief sought in the amended originating motion, call for an answer to the following question:
In circumstances where a Magistrates’ Court constituted by Holzer M made an order in August 2013 that three indictable offences under the Firearms Act preferred against the plaintiff, be heard summarily, did the Magistrates’ Court as constituted by another magistrate have power to revoke that order and remand the plaintiff to appear at a committal hearing?
For the reasons set out below, I consider this question must be answered in the negative. The court did not have power to terminate the plaintiff’s summary hearing on 6 February 2014 and remand him to appear at a committal hearing on 11 February 2014.
Once an order has been made by the Magistrates’ Court for an indictable offence to be heard summarily, it is not open for the court, constituted by a different magistrate, to purport to revoke that order. This conclusion is supported by the proper construction of s 29 of the Criminal Procedure Act. It is also supported by consideration of the very real prospect of prejudice to an accused if a magistrate has power to terminate a summary hearing which had previously been ordered by the court. Trials of indictable offences, whether heard summarily or before a jury, are preceded by committal hearings. The practical effect of the order made on 6 February 2014 was that a trial of indictable offences preceded a committal hearing.
It is clear from the terms of ss 29 and 30 of the Criminal Procedure Act that an order may be made for an indictable offence to be heard summarily either prior to the commencement of a committal hearing or during the hearing. The criteria prescribed by s 29(2), being matters which can be considered by a magistrate in advance of the hearing are as follows:
·‘The nature of the hearing’ (s 29(2)(a)(i));
·‘The manner in which the offence is alleged to have been committed’ (s 29(2)(a)(ii));
·‘The apparent degree of organisation’ (s 29(2)(a)(ii));
·‘Whether the offence forms part of a series of offences being alleged against the accused’ (s 29(2)(a)(iii)).
Counsel for the first defendant submitted that it would often be the case that the ‘presence of aggravating circumstances’, being a matter prescribed by s 29(2)(a)(ii), might only become apparent after the magistrate has heard evidence and that it would be undesirable if a magistrate hearing a case summarily was required to continue to do so as a result of an order which had been made by another magistrate. However, as noted by counsel for the plaintiff, prior to a magistrate making a decision as to whether it is appropriate to exercise summary jurisdiction, the court has power pursuant to s 30(4) to require production of an outline of the evidence which is to be presented and any other information which the court considers relevant to the question of whether the matter should be dealt with summarily. The availability of this information allows a magistrate in advance of hearing any evidence to make an assessment as to whether there are aggravating circumstances which render it inappropriate for the court to exercise summary jurisdiction.
Section 30(3) makes express provision for an application for, or an offer of a summary hearing, to be made at any time before the court determines whether to commit the accused for trial. Section 30(7) and (8) make express provision regarding the admissibility of evidence in the summary hearing of evidence which has been given or tendered during the committal hearing. The admissibility of the evidence is subject to the consent of the accused. Whilst the Criminal Procedure Act expressly contemplates a committal hearing being transformed into a summary hearing, the Act is silent on a summary hearing being terminated and the accused being remanded for a committal proceeding.
Section 97 of the Criminal Procedure Act prescribes the purposes of a committal proceeding as being:
(a)to determine whether a charge for an offence is appropriate to be heard and determined summarily;
(b)to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
(c)to determine how the accused proposes to plead to the charge;
(d)to ensure a fair trial, if the matter proceeds to trial, by –
(i)ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;
(ii)enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
(iii)enabling the accused to put forward a case at an early stage if the accused wishes to do so;
(iv)enabling the accused to adequately prepare and present a case;
(v)enabling the issues in contention to be adequately defined.
It is difficult to reconcile the purposes of a committal proceeding prescribed by s 97 with a construction of the Criminal Procedure Act which confers power upon the Magistrates’ Court to terminate a summary hearing of indictable offences and remand an accused for a committal proceeding. First, s 97(a) and (b) reflects a fundamental feature of a committal proceeding: ie that it precedes a trial of an indictable offence. Section 97(d) reflects the important role of a committal proceeding in ensuring that an accused receives a fair trial if the matter proceeds to trial.
Having regard to the protections conferred upon an accused by s 30(7) and (8), combined with the fact that an indictable offence can only be heard summarily if the accused consents, there is no potential prejudice for an accused if a committal proceeding is converted into a summary hearing. However, the same cannot be said of the converse.
There are fundamental differences between a committal proceeding and the summary hearing of an indictable offence. Committal proceedings constitute an important element of the protection which the criminal process gives to an accused.[12]
[12]Barton v The Queen (1980) 147 CLR 75, 99-100 (Gibbs ACJ and Mason J).
The nature of the jurisdiction exercised by a magistrate hearing a committal proceeding was described by Sheppard J in Melek v Borthwick[13] as being that of an ‘administrative tribunal’ compared to that of a ‘judicial tribunal’ in hearing and determining an indictable offence summarily.[14]
[13][1979] 1 NSWLR 350.
[14]Ibid [353].
It is not necessary to determine whether the task of a magistrate in a committal proceeding is properly characterised as being that of an administrative tribunal. What is plain is that in a committal proceeding the magistrate is not adjudicating upon the guilt of the accused. Rather, the magistrate’s function is confined to determining whether there is evidence of sufficient weight to support a conviction for the offence charged.
The fundamental difference between a committal proceeding and a summary hearing of indictable offences is reflected in the application of provisions of the Criminal Procedure Act in respect of alibi and expert evidence, which are applicable to a summary hearing but not to a committal proceeding. An accused who is charged with indictable offences which are to be heard summarily is obliged to disclose both expert evidence and alibi evidence prior to the commencement of the summary hearing: ss 50 and 51 of the Criminal Procedure Act. Further, in a committal proceeding there is no obligation upon an accused to cross-examine prosecution witnesses in detail or at all. The accused may keep his or her powder dry: s 97(d)(iii).[15]
[15]Birks (1990) 48 A Crim R 385, 397.6 (Gleeson CJ).
Prior to the court terminating the summary hearing on 6 February 2014, seven prosecution witnesses had given evidence and been cross-examined. Counsel for the accused was plainly required to comply with the rule in Browne v Dunn in his cross-examination of those witnesses. The nature of the proceedings on 5 and 6 February 2014, and the obligations imposed upon counsel for the accused, were of a fundamentally different character than would have been the case if the proceedings were a committal hearing.
Counsel for the first defendant submitted that a magistrate has power to terminate a summary hearing at any time prior to the magistrate determining whether the accused is guilty of the relevant indictable offences. He submitted that this would be so, even in circumstances where an accused has elected to give evidence. He submitted that in circumstances where a magistrate terminates a summary hearing subsequent to an accused giving evidence, that evidence would be admissible in the subsequent committal proceeding and in any subsequent trial if the accused was committed to stand trial.
The potential for prejudice to an accused in circumstances where a magistrate terminates a summary hearing and remands an accused for a committal proceeding is not merely hypothetical. An accused in a summary trial of indictable offences may elect to give evidence, but might not wish to do so in a trial of the same offences before a jury. That an accused who has consented to have indictable offences heard summarily can be told, at any time prior to determination of his/her guilt or innocence, that he or she is to be remanded for a committal proceeding, has the potential to cause serious prejudice.
In Lee v The Queen[16] the High Court stated (footnotes omitted):
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’. Albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.[17]
[16][2004] HCA 20, 21 May 2014, unreported.
[17]Ibid [32].
The present case does not involve any loss of privilege against self-incrimination, such as that which was considered by the High Court in Lee. However, the notion that an accused person in the position of the plaintiff, faced with the possibility of imprisonment of up to five years,[18] could have a summary hearing of those charges terminated mid-stream and be remanded to a committal proceeding, does not strike a balance between the power of the State to prosecute and the position of an individual who stands accused. To the contrary, it has the potential to facilitate a serious imbalance between the position of, on the one hand, the State, and, on the other, the accused. In the absence of clearly expressed statutory provision or words of necessary intendment, I would not construe s 29 and s 30 of the Criminal Procedure Act as conferring upon a magistrate the power to terminate a summary hearing in circumstances where an order had previously been made that indictable offences be heard and determined summarily.
[18]Pursuant to s 113B of the Sentencing Act 1991. The maximum term of imprisonment which could be imposed upon the plaintiff in respect of the three offences under the Firearms Act with which he was charged was five years.
Counsel for the first defendant submitted that, just as s 30(3) confers a power on the Magistrates’ Court to convert a committal hearing into a summary hearing at any time prior to the court determining whether to commit the accused for trial, so too the court has power any time prior to determining the guilt of an accused charged with indictable offences being heard summarily, to terminate the summary hearing and remand the accused for a committal hearing. The difficulty with this submission is that there is no provision in the Act which confers a power to convert a summary hearing into a committal hearing or which regulates the admissibility of evidence given in the summary hearing in any subsequent committal hearing. On the other hand, there is an express power to convert a committal hearing into a summary hearing, subject to the consent of the accused and with express provision governing the admissibility of any evidence given during the committal hearing in any subsequent summary hearing.
Further, the terms of s 168(1) should be noted. This section provides:
(1)At any time except during trial, the Supreme Court or the County Court may order that a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates’ Court or the Children’s Court (as the case requires) if –
(a)the accused consents to the transfer; and
(b)the court considers that the charge is appropriate to be determined summarily, having regard to –
(i)in the case of the Magistrates’ Court the matters in section 29(2); or
(ii)in the case of the Children’s Court whether the Children’s Court is required to hear and determine the charge summarily by section 356(3) of the Children, Youth and Families Act 2005.
Note
See section 28 for indictable offences that may be heard and determined summarily.
As with s 30(3), s 168(1) supports the conclusion that where the Criminal Procedure Act makes provision for an indictable offence to be heard summarily, it does so in express terms and is subject to the consent of the accused.
In terms of striking a balance between the power of the State to prosecute and the position of the individual who stands accused, there is no doubt, as is demonstrated by the present proceedings, that a magistrate who ultimately presides over the summary hearing of indictable offences may have a different view as to the appropriateness of the charges being heard summarily, than the magistrate who originally made the order for a summary hearing. Indeed, the magistrate stated on 6 February 2014:
But obviously Mr Holzer and I are poles apart.[19] … Look, I just found out I’m the most senior magistrate in the State so I think my judgment is pretty good… But I’m pulling rank. I’m there on top of the list. I’ve been doing this for so long that I don’t have any difficulty with it.[20]
[19]T4:30-31.
[20]T6:6-13.
There are three points to be made in relation to the potential for a magistrate who ultimately hears a summary hearing of indictable offences having a different view as to the appropriateness of doing so from the magistrate who ordered a summary hearing. First, it should be noted that the Magistrates’ Court Criminal Procedure Rules 2009 makes express provision directed at avoiding a difference of opinion between magistrates as to whether it is appropriate for indictable offences to be heard summarily. Rule 62(2) provides:
If the application for a summary hearing is granted by a magistrate in relation to the hearing of an indictable offence, so far as practicable, the matter will thereafter proceed before that magistrate.
Second, the matter upon which, apparently, the two magistrates in the current proceedings were ‘poles apart’ was the adequacy of the sentencing range of five years’ imprisonment which was available on the summary hearing of the indictable offences. This sentencing range was an objective matter, the adequacy of which could have been assessed prior to the hearing of any evidence. I have no hesitation in concluding that, having been provided with the plaintiff’s criminal record, it was a matter which was taken into account by Holzer M in August 2013 at the time he ordered a summary hearing.
Third, the transparency of the process whereby a determination is made that indictable offences be heard summarily, is undermined if another magistrate can terminate a summary hearing because he or she has a different assessment from the magistrate who has made the original order, as to the appropriateness of the indictable offences being heard summarily. As Deane J observed in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia:[21]
The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other tribunals.[22]
[21](1987) 61 ALJR 393.
[22]Ibid, 399. This passage was cited with approval in Re Australian Bank Employee’s Union; Ex Parte Citicorp Australia Ltd (1989) 87 ALR 649 at 652.3.
Although the plaintiff was the subject of indictable offences, once an offer was made for those offences to be heard and determined summarily, and he accepted that offer, he can properly be regarded as having invoked the jurisdiction of the Magistrates’ Court to have the offences heard and determined summarily.
I was informed by both counsel who appeared before me that there was no authority of the Supreme Court of Victoria which had considered the question of whether, in the circumstances where an order had been made for a summary hearing, the Magistrates’ Court constituted by another magistrate had the power to terminate the summary hearing and remand an accused for a committal hearing. My own research has confirmed this. However, the very same issue which I have to determine did arise more than a century ago in The King v Justices of Hertfordshire.[23]
[23](1911) 1 KB 612.
Section 12 of the Summary Jurisdiction Act 1879 (42 and 43 Vict, c, 49) (UK) provided as follows:
Where a person who is an adult is charged before a court of summary jurisdiction with any indictable offence specified in the second column of the First Schedule to this Act, the court if they think it expedient so to do, having regard to the character and antecedence of the person charged, the nature of the offence, and all the circumstances of the case, and if the person charged with the offence, when informed by the court of his right to be tried by a jury, consents to be dealt with summarily, may deal summarily with the offence, and adjudge such person, if found guilty of the offence, to be imprisoned, with or without hard labour, for any term not exceeding three months, or to pay a fine not exceeding 20 pounds.
Section 24(1) of the Summary Jurisdiction Act 1879 provided:
Where a person is charged before a court of summary jurisdiction with an indictable offence, with which a court of summary jurisdiction has or may have under the circumstances in this Act mentioned power to deal summarily, the court before whom such person is charged, without prejudice to any other power that it may possess –
(a)may, for the purpose of ascertaining whether it is expedient to deal with the case summarily, either before or during the hearing of the case, from time to time adjourn the case and remand the person accused.
A defendant was charged with larceny before a court of summary jurisdiction and consented to the charge being heard summarily. The accused gave evidence and called witnesses. At the close of the evidence, the Justices were of the opinion that it was not expedient to deal summarily with the case and committed the defendant without his consent for trial at the court of quarter sessions. The court of quarter sessions, on the basis of what had taken place before the court of summary jurisdiction, declined to proceed with the trial of the indictment. A writ of mandamus was sought by the Crown directed to the Justices who comprised the court of quarter sessions.
The Kings Bench division held that the court of summary jurisdiction had power to terminate the summary hearing. Avory J stated:
Probably the most favourable way of putting the argument for the defendant is to say that, as soon as the Justices have decided, with the consent of the person charged, to deal summarily with the case, he acquires a right to receive a sentence not exceeding the limit imposed by s 12, that is, imprisonment with hard labour for a term of three months. I do not think the argument is sound. To give effect to it would produce an impossible and unworkable state of things in courts of summary jurisdiction. The Justices are only to deal summarily with the indictable offences specified in the First Schedule to the Act ‘if they think it is expedient so to do,’ and they are to have regard ‘to the character and antecedence of the person charged, the nature of the offence, and all the circumstances of the case.’ It would obviously be most improper for the Justices to enquire into the character and antecedence of the person charged until, after having heard all the evidence, they have determined to convict him; if they did do so, and then proceeded to convict, the defendant could come to this Court and get the conviction quashed on the ground that the Justices had wrongly admitted evidence as to character before conviction. But before deciding to commit a defendant for trial the Justices must enquire into his character and antecedence, and s 24 shews that the proper interpretation of s 12 is that the Justices may up to the last moment before adjudication reserve their decision as to whether they will deal summarily with the case or send the defendant for trial, for s 24 expressly provides that the Justices ‘may for the purpose of ascertaining whether it is expedient to deal with cases summarily, either before or during the hearing of the case, from time to time adjourn the case and remand the person accused.’[24] (Emphasis added.)
[24]Ibid [623]-[624].
A number of aspects of the reasoning in Justice Avory’s judgment are notable. First, the reasoning of Avory J bears a striking similarity with the construction of the provisions of ss 29 and 30 of the Criminal Procedure Act advanced by counsel for the first defendant; ie, that at any time prior to the determination of the guilt of the accused in a summary hearing the magistrate had the power to terminate the summary hearing and commit the accused for trial. Second, the court concluded that it was not appropriate for a magistrate exercising summary jurisdiction to consider the criminal record of an accused prior to commencing the summary hearing. However, s 29(2)(b) of the Criminal Procedure Act provides expressly to the contrary. Third, a critical aspect of Avory J’s reasoning was his conclusion that s 24 of the Summary Jurisdiction Act 1879 conferred a power upon a Magistrates’ Court exercising summary jurisdiction to terminate a summary hearing at any time before or during the summary hearing and remand the accused.
Section 54(1)(a) of the Justices Act 1890 mirrored s 24(1)(a) of the Summary Jurisdiction Act 1879. The terms of s 54(1)(a) of the 1890 Act remained in Victorian legislation[25] until the enactment of the Magistrates’ Court Act. Immediately prior to the enactment of the 1989 Act, the terms of s 54(1)(a) were replicated in s 71(1)(a) of the Magistrates (Summary Proceedings) Act 1975, which is set out in [42] above. The 1989 Act replaced s 71(1)(a) with s 53, set out in [41] above. The fact that the Magistrates’ Court Act did not include what had hitherto been a longstanding express power to terminate a summary hearing, weighs heavily against reading such a power into the existing legislative scheme.
[25]Section 54 Justices Act 1890; s 57 Justices Act 1915; s 57 Justices Act 1928; s 59 Justices Act 1957; s 59 Justices Act 1958; s 71(1)(a) Magistrates (Summary Proceedings) Act 1975.
Counsel for the first defendant referred to two authorities in support of the proposition that if, at any time prior to the determination of a summary hearing, a magistrate considers that it is no longer appropriate for an indictable offence to be heard summarily, the summary hearing must be discontinued. In R v Kings Lynn Justices Ex parte Carter,[26] Lord Parker CJ observed:
On the other hand where, as in the present case, they have either been persuaded to deal with the case summarily, or have embarked on the summary trial without making any proper enquiry, or without conducting their enquiry as examining magistrates far enough to understand the nature of the case, then as it seems to me they are fully entitled to take into consideration those matters relating to the offence which had been revealed at the trial and which do reflect the character and antecedence.[27]
[26][1968] 3 WLR 1210.
[27]Ibid [126]-[127].
The passage referred to above has to be read in the context of s 29 of the Magistrates’ Court Act 1952, which provided:
Where on the summary trial under sub-s (3) of s 18 or s 19 of this Act of an indictable offence triable by quarter sessions a person who is not less than 17 year old is convicted of the offence, then, if on obtaining information about his character and antecedence the court is of opinion that they are such that greater punishment should be inflicted for the offence than the court has power to inflict, the court may, instead of dealing with him in any other manner, commit him in custody to quarter sessions for sentence.
Section 29 of the Magistrates’ Court Act 1952 conferred an express power upon a magistrate to terminate a summary hearing and to commit an accused in custody to quarter sessions for sentence. When these provisions are contrasted with the absence of any such power within the terms of s 29 and s 30 of the Criminal Procedure Act, the passage relied upon by counsel for the first defendant does not assist the first defendant’s case.
Counsel also relied upon authorities relating to the ability of a judge in a civil trial to discharge a jury, including where such a course is opposed by both parties. In particular, he relied upon Mayhead v Hydrolic Hoist Company Limited.[28] He relied upon the following passage from the judgment of Scrutton LJ:
I am of opinion that the trial judge may under this rule, construed with r.1, alter a previous order directing a trial with a jury, if in his opinion the scientific investigation ‘cannot conveniently be made with a jury’ and can do it of his own motion without an application from either party and against their wishes. In my view the judges cannot be compelled to try a complicated case in a way in which in his opinion, reasonably exercised, justice cannot be done between the parties. His order will be a discretionary order, but, as shown by the case of Ormerod v Todmorden Mill Co, will be appealable if there are no reasonable grounds for his discretion.[29]
[28][1931] 2 KB 425.
[29]Ibid [431.6].
The observations of Scrutton LJ referred to above must be read in the context of a rule of court which conferred an express power upon the court to ‘direct the trial without a jury of any cause … requiring … any scientific … investigation which cannot in their or his opinion conveniently be made with a jury.’ When viewed in this context, once again, the authority cited by counsel for the first defendant does not support the proposition that a magistrate who becomes aware of facts which in his or her opinion has the effect that the sentences available to the court are inadequate to justly deal with a case has power to terminate the summary hearing.
An authority not referred to by counsel, but which is relevant to the resolution of the issues before me, is Kiely v Henderson.[30] The accused had been charged with possession of heroin. At the conclusion of the prosecution case, the magistrate had offered the accused a summary hearing of the indictable offence. The accused accepted the offer. At the conclusion of the proceedings the magistrate found the offence proved. However, upon being informed of the fact that the accused had been sentenced earlier in 1987 to six-and-a-half year sentence with a three year non-parole period, he informed the accused that it was not appropriate for the offences to be dealt with summarily.
[30](1989) 19 NSWLR 139, Campbell J cited with approval the passage from the judgment of Avory J referred to above when concluding that a magistrate who had offered an accused a summary hearing under s 476 of the Crimes Act 1900 (NSW) was entitled to discontinue a summary hearing upon learning of the accused’s criminal record.
Campbell J concluded that the magistrate had power to terminate the summary hearing:
… the magistrate was not in a position to make such a judgment (whether it was appropriate for the matter to be tried summarily or not) until he knew of the sentence the plaintiff was serving. It would have been, as the above referred to cases show, ‘quite wrong’ had he been told that before determination of guilt.[31]
[31]Ibid [144.2].
The judgment in Kiely v Henderson, is readily distinguishable. As in R v Hertfordshire Justices a key consideration underpinning Campbell J’s reasoning was his view that it was inappropriate for the magistrate to be informed of the criminal record of the accused prior to making a determination of whether or not the accused was guilty of the charges in question. This issue is dealt with directly by s 29(2)(b) which provides that if a magistrate is considering whether or not it is appropriate to hear and determine indictable offences summarily the magistrate must have regard to the criminal record of the accused when considering the adequacy of the sentences available.
The final issue which falls for determination in relation to ground 1 is whether s 337(2) of the Criminal Procedure Act conferred a power on the court to revoke the order which had previously been made by Holzer M that the indictable offences be heard summarily. For the reasons which follow, I consider that s 337(2) did not do so.
The jurisdiction of a court to hear and determine a matter is to be distinguished from the power of the court to make orders and/or grant relief of a particular kind in relation to the exercise of the jurisdiction.[32] As set out earlier in this judgment, there are two sources of jurisdiction for the Magistrates’ Court to hear and determine indictable offences summarily: s 25(1)(b) and (2) of the Magistrates Court Act read in conjunction with ss 28 and 29 of the Criminal Procedure Act. The power of revocation conferred by s 337(2) is confined to a power or discretion conferred on a court by the Criminal Procedure Act. Properly construed, the power of revocation conferred by s 337(2) does not extend to a power to revoke an order enlivening the jurisdiction of the Magistrates’ Court to hear and determine an indictable offence summarily. Once the court’s jurisdiction to hear and determine an indictable offence summarily has been invoked, the power of revocation conferred by s 337(2) is confined to powers such as those of a procedural nature under Part 3.2 of Chapter 3.
[32]Thomson Australian Holdings Pty Ltd v Trade Practices Commission and Others (1981) 148 CLR 150, 161; Jackson v Sterling Industries Limited (1987) 162 CLR 612, 619 (Wilson and Dawson JJ); 627-8 (Deane J).
If I am wrong in concluding that the power of revocation conferred by s 337(2) is not available to revoke the Magistrates’ Court’s jurisdiction to hear and determine an indictable offence summarily, I would in any event conclude that, for the purposes of s 337(2), the context otherwise requires a finding that the court did not have power to revoke the order of Holzer M. The relevant context is comprised of the statutory scheme discussed above and the potential for serious disadvantage to an accused if a summary hearing of an indictable offence can be terminated and the accused remanded for a committal proceeding.
Ground 2
If I am wrong in concluding that the court had no power to terminate the summary hearing of the indictable offences, I would still quash that part of the order remanding the plaintiff to a committal hearing. Ground 2 of the plaintiff’s amended originating motion contends that the order remanding the plaintiff to a committal hearing was tainted by jurisdictional error. The jurisdictional error is said to arise by reason that the magistrate failed to have regard to the mandatory requirement in s 29(2)(b) of the Act. Section 29(2)(b) provides that for the purposes of determining whether it is appropriate for an indictable charge to be heard and determined summarily, the Magistrates’ Court must have regard to:
(b)the adequacy of sentences available to the court, having regard to the criminal record of the accused.
It is clear from the transcript of proceedings on 6 February 2014 that the sole basis articulated by the magistrate for terminating the summary hearing was his belief that the sentencing options available were inadequate compared to the range of sentencing options available if the charges were dealt with as indictable offences.
The magistrate did not have any regard to the plaintiff’s criminal record. I do not accept the first defendant’s counsel’s submission that the magistrate did have regard to the plaintiff’s criminal record because one of the charges identified the plaintiff as a ‘prohibited person’ as defined in s 3 of the Firearms Act. The definition of prohibited person is very wide. The plaintiff’s counsel submitted that, insofar as the definition includes a person who is the subject of a final order under the Family Violence Protection Act 2008, such an order could be made by consent without any criminal conviction being recorded. I do not need to express a concluded view as to whether an individual who is a prohibited person automatically should be taken to have a criminal record. Whatever be the position in this regard, it is plain that the court did not have any regard to the fact that the plaintiff was identified as a prohibited person. The sole basis for the decision to terminate the summary hearing was the consideration that summary sentencing options available were inadequate. Accordingly, when considering the adequacy of sentencing options available to him, the court did not have regard to a mandatory condition prescribed by s 29(2)(b) of the Act.
The first defendant’s counsel submitted that the magistrate’s consideration of the adequacy of summary sentencing options available to him was a matter which fell within section 29(2)(d): ‘Any other matter that the court considers relevant.’
Whilst s 29(2)(d) confers a wide-ranging discretion upon the Magistrates’ Court, it does not relieve the court of the obligation to have regard to the criminal record of an accused when the court is considering the adequacy of sentencing options available. The general discretionary power conferred by s 29(2)(d) cannot displace the specific conditions regulating the exercise of the power conferred by s 29(2)(b).
In Anthony Horden & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia,[33] Gavan Duffy CJ and Dixon J said:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[34]
[33](1932) 47 CLR 1.
[34]Ibid [7]. See also R v Wallis; Ex part Employers Association of Wool Selling Brokers (1949) 78 CLR 529, 550 (Dixon J); Minister of Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 586-92 (Gummow and Hayne JJ).
The principle set out above applies to the construction of 29(2)(b). The express condition that the Magistrates’ Court have regard to the accused’s criminal record when considering the adequacy of sentencing options available to the court, precludes the court from having regard to the adequacy of sentencing options as a standalone matter governed by s 29(2)(d).
The magistrate’s failure to have regard to the accused’s criminal record when considering whether a summary hearing was inappropriate by reason of the adequacy of the sentencing options available was a jurisdictional error.
Ground 3
Even if I had not upheld Grounds 1 and 2, I would still quash the order on the grounds of jurisdictional error, being a failure to accord the plaintiff procedural fairness.
Earlier in this judgment, I have set out the statement which was made by the magistrate at the commencement of the proceedings on 6 February 2014. Immediately after the statement had been made, the following exchange took place with counsel for the plaintiff:
Mr Oldis:Could I stand the matter down, your Honour, because this has come as quite a surprise to myself?
His Honour: It shouldn’t because this is going to be a commonplace thing. As the jurisdictions co-mingle a bit and we move up, this should be commonplace. I don’t do it that often but probably will be in the future.[35]
[35]T2:15-20.
Subsequently the following exchange took place:
His Honour: Well that’s the trouble with magistrates. We’ve got this obligation to consider, or the ability at least to send something for trial. We can’t be gainsaid. We have it and it is exercised occasionally and this is one of occasion on which I am exercising it. The difficulty for you is, of course, you can’t really make submission about it because…
Mr Oldis: You’ve stopped the trial, your Honour.
His Honour: I haven’t stopped it, but if I heard submissions I can’t imagine anything that could be said that would alter the view that the sentencing range is inadequate. It’s one of those delicate issues that is bound to only come up midway or with the fullness of the evidence emerging because you’re not thinking in terms of sentencing anyway, you’re just concentrating on whether the person is guilty or not guilty. But unfortunately, we have to turn our minds sometimes to the question – and increasingly – to the question of whether or not this is the appropriate court. It’s not the appropriate court and it is going to trial.[36]
[36]T3:30–T4:18.
Counsel for the plaintiff made two subsequent requests for the proceedings to be stood down. Immediately following the third request, the magistrate stated:
Well no, I just want to get a date and …[37]
Following a fourth request for the matter to be stood down, the magistrate stated:
Look there’s no point in – because of the sentencing aspect, this court must divest itself of your client, I’m afraid. There are no further opportunities, given what I’ve said, to resolve the matter.
[37]Ibid, 7 l 24.
The request from the plaintiff’s counsel for the proceedings to be stood down was a reasonable request which should have been acceded to. A full day of hearing had taken place on 5 February 2014. Seven prosecution witnesses had given evidence and had been cross-examined. No indication had been given to the parties that the court was considering terminating the summary hearing. Once the magistrate announced at commencement of proceedings on 6 February 2014 that he proposed to terminate the summary hearing, the plaintiff’s counsel should have been given the opportunity to consider, at least the following matters, and have been given the opportunity to make submissions in respect of these matters:
(a)whether the Magistrates’ Court had the power to terminate the summary hearing midstream in circumstances where Holzer M had previously ordered that the indictable offences be heard summarily;
(b)whether the sentencing range of five years’ imprisonment available to the court pursuant to s 113B of the Sentencing Act meant that there was an adequate sentencing range available to the court;
(c)whether the court could terminate the summary hearing on the grounds of an inadequate sentencing range without having regard to the plaintiff’s criminal record; and
(d)whether, having regard to the plaintiff’s criminal record, the sentencing range of five years was adequate.
The refusal to stand the proceedings down on 6 February 2014 constituted a denial of procedural fairness because it denied the plaintiff an opportunity to present submissions in opposition to the termination of the summary hearing.[38]
[38]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 (Gaudron and Gummow JJ); Humphry v Wills [1989] VR 439; McColl v Lehmann [1987] VR 503; Sullivan v Department of Transport (1978) 20 ALR 323, 342-344 (Deane J).
Not only was the plaintiff denied the opportunity to present his case, the magistrate expressly stated that there was ‘no point’ in the matter being stood down because ‘this court must divest itself of your client, I’m afraid. There are no further opportunities, given what I have said to resolve the matter.’ The magistrate could not have been more explicit in making plain that he was not interested in hearing any submissions on whether the summary hearing should be terminated.
The first defendant’s counsel submitted that no question of a breach of procedural fairness arose because once the magistrate formed the opinion that he had no jurisdiction to continue with a summary hearing, nothing which the plaintiff’s counsel could have advanced by way of submission could have altered the ultimate conclusion. No authority was advanced by counsel in support of the proposition that the rules of procedural fairness do not apply when a court or tribunal is considering a matter related to whether there is jurisdiction to proceed with a hearing. The fact that the magistrate was, in effect, considering whether the court had jurisdiction to hear and determine the charges summarily, did not relieve him of the obligation to afford the plaintiff procedural fairness. To the contrary, a decision that the court did not have jurisdiction to hear and determine the charges summarily would have significant consequences for the plaintiff. The decision to terminate the summary hearing affected the rights and interests of the plaintiff in a direct and immediate way.[39]
[39]Kioa v West (1985) 159 CLR 550, 594 [29] (Mason J) and 632-33 [29] (Deane J).
It is the potential for the exercise of power to adversely impact upon a person’s rights or interests which is decisive in enlivening a duty of procedural fairness. It is the nature of the power exercised which is decisive, not the character of the proceedings in relation to which the exercise of the power arises.[40]
[40]Ainsworth v Criminal Justice Commission [1991-2] 75 CLR 564, 576.
Independently of Grounds 1 and 2, the order terminating the summary hearing should be quashed on the grounds of jurisdictional error constituted by a failure to accord the plaintiff procedural fairness.
Ground 4
The plaintiff submits that the magistrate erred in law by conducting the proceeding on 5 and 6 February 2014 in a manner such that a fair-minded lay observer might reasonably have apprehended that the magistrate might not have brought an impartial mind to the resolution of the plaintiff’s guilt or innocence. This ground is not made out.
Whilst I have concluded that the magistrate denied the plaintiff procedural fairness in respect of the decision to terminate the summary hearing, it does not follow that the plaintiff has established that a fair minded lay observer would have a reasonable apprehension that the magistrate might not have brought an impartial mind to the resolution of the plaintiff’s guilt or innocence.
Plainly, the magistrate was of the view that the summary sentencing options available to him were inadequate having regard to the sentencing range available in respect of the indictable offences with which the plaintiff had been charged. The exchanges between the magistrate and counsel for the plaintiff point to the conclusion that he had formed a strong view that the hearing should not proceed as a summary hearing. However, this does not have any bearing on whether the magistrate would bring an impartial mind to the resolution of the plaintiff’s guilt or innocence. Rather, it points to the conclusion that the magistrate did not wish to resolve the question of the plaintiff’s guilt or innocence. His reluctance to do so is explicable by reference to his mistaken belief that the court had power to terminate the summary hearing notwithstanding the order of Holzer M
Conclusion
In light of the foregoing, the order of the Magistrates’ Court of Victoria at Frankston made on 6 February 2014 is quashed to the extent that the court ordered:
Criminal proceedings discontinued on 6 February 2014 and a new trial ordered.
In light of my conclusion that the Magistrates’ Court had no power to revoke the order of Holzer M of 5 August 2013 that the indictable offences be heard and determined summarily, the criminal charges must be heard and determined summarily in the Magistrates’ Court of Victoria in accordance with Part 3.3 of Chapter 3 of the Criminal Procedure Act. Whilst I have not upheld Ground 4 (apprehended bias), I consider it appropriate to make an order that the further summary hearing be before a magistrate other than the magistrate who terminated the summary hearing on 6 February 2014. A review of the transcript of 6 February 2014 discloses that the magistrate expressed himself in robust terms when rejecting submissions advanced by the plaintiff’s counsel. Further, as I have found, the conduct of the proceedings on 6 February 2014 denied the plaintiff procedural fairness. The power to direct a re-hearing by a differently constituted court should be made where the interests of justice require it.[41] I am satisfied that the interests of justice do require such an order to be made. The plaintiff is entitled to an order that the first defendant pay his costs.
---
[41]Murphy v State of Victoria [2014] VSCA 238 [108].
CERTIFICATE
I certify that this and the 36 preceding pages are a true copy of the reasons for Judgment of McDonald J of the Supreme Court of Victoria delivered on 24 October 2014.
DATED this twenty fourth day of October 2014.
Associate
2
12
0