R v Peter James Bennett and Warren Keith Nicholl; Ex Parte Andrew John Katelaris [1988] ACTSC 1 (15 January 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. PETER JAMES BENNETT and WARREN KEITH NICHOLL;
Ex parte ANDREW JOHN KATELARIS
S.C. No. 1033 of 1987
Prerogative Writ - Magistrates - Informations - Pleading

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Prerogative Writ - certiorari - indictable offences disposed of summarily - pre-requisites - failure to apply - excess of jurisdiction

Magistrates - jurisdiction to dispose of indictable offences summarily - consent of defendant to be clear and unequivocal

Informations - simultaneous hearing of more than one information - exercise of discretion - relevant rules of practice

Pleading - plea of guilty must be clear and unambiguous - special care in case of unrepresented defendant

Poisons and Narcotic Drugs Ordinance 1978, ss.6(1), 28(5)

Crimes Act 1900 (NSW), s.477

Magistrates Court Ordinance 1930, ss. 19(1), 26(1), 26(2), 30(1), 30(2), 112, 113, 114, 144, 228

Interpretation Ordinance 1937, s.9

Interpretation Ordinance 1967, s.33D

The Queen v. Sharon Rosemary Town (unreported, 20 May 1982)

The Queen v. Dobson and Anor; Ex parte KcKean 40 ACTR 1

In Re Feldt (1910) 13 WALR 28

Dodemaide v. Tucker (1927) VLR 539

Omant v. Reardon and Ors (1905) 1 TasLR 97

The Queen v. Cockshott and Ors (1898) 1 QB 582

Stefani v. John (1948) 1 KB 158

R. v. Rochow (1983) 1 QdR 184

Peattie v. Murphy (1964) 82 WN (Pt 1) (NSW) 163

Munday v. Gill [1930] HCA 20; (1930) 44 CLR 38;

Brangwynne v. Evans (1962) 1 ALI ER 446

First Constable of Norfolk v. Clayton (1983) 2 AC 473

Brooks v. Bagshaw (1914) 2 KB 798

McDonnell v. Smith [1918] HCA 26; (1918) 24 CLR 409

Walsh v. Doherty [1907] HCA 51; (1907) 5 CLR 196

Ex parte O'Sullivan; Re Craig (1944) 61 WN (NSW) 197

Ex parte De Mestre; Re Chisholm (1943) 61 WN (NSW) 43

Ex parte Eaton & Sons Pty Limited; Re Wellington (1975) 74 WN (NSW) 176

Ex parte Lovell; Re Buckley (1938) 55 WN (NSW) 63

Archbold Criminal Pleading Evidence and Practice 42nd Ed., para 4-57

HEARING

CANBERRA
15:1:1988

ORDER

1. The order made on 27 August 1987 be made absolute.

2. The convictions and penalties recorded against the prosecutor on 5 May 1987 be quashed.

DECISION

This is the return of an order nisi for certiorari made by the Chief Justice on 27 August 1987 in respect of convictions and penalties imposed by Magistrate Nicholl in the Magistrates Court, Canberra, on 5 May 1987. The grounds upon which the order nisi was made, and which were urged on behalf of the prosecutor in support of the order being made absolute, were:

(1) The convictions penalties and orders were made by

the respondent without the prosecutor having been
charged with the offences alleged against him.

(2) The convictions penalties and orders were made by
the respondent without the prosecutor entering
unambiguous pleas to the said charges.

(3) The respondent proceeded to hear more than one
information at the same time without expressly
asking the prosecutor whether he consented to that
course and without his consent.

2. On 17 September 1987 on the application of the prosecutor, I made an order joining Magistrate W.K. Nicholl as a second respondent. On the hearing of the return of the order the Magistrate appeared by counsel to submit to the jurisdiction. Counsel for the Magistrate then withdrew.

3. The facts giving rise to the prosecutor's convictions were not in dispute. The prosecutor appeared before Magistrate Nicholl in the Magistrates Court, Canberra, on 4 May 1987 in response to a summons, returnable that day, in respect of Information No. 87/15135 charging him with an offence of failing to keep a Register of Drugs of Addiction contrary to s.28(5) of the Poisons and Narcotic Drugs Ordinance 1978. The prosecutor was unrepresented and appeared in person. Ms M. Quirk appeared for the informant.

4. The prosecutor's evidence in support of his application for certiorari and as deposed to in his affidavit of 13 August 1987, was that when he arrived at court he was told by an officer of the court that a number of other charges were to be preferred against him, and he was shown a series of documents which appeared to be in the form of informations and summonses and which related to alleged offences against s.6(1) of the Poisons and Narcotic Drugs Ordinance, which creates an offence of administering a Schedule 8 substance to one's self. Schedule 8 lists a number of drugs. The prosecutor was never given a copy of any of these informations and summonses, nor were they ever served upon him.

5. It is necessary to set out in full what happened when the prosecutor appeared before the Magistrate. The transcript reads as follows:

"HIS WORSHIP: Do you have anybody appearing for you,
Mr Katelaris?

MR A. KATELARIS: I will be speaking on my own behalf.

HIS WORSHIP: All right. Very well. You may remain
seated. Do you - well, first of all, have you seen
copies of all the charges?

MR KATELARIS: I have only seen these copies this
morning. I was given a summons obviously some weeks
ago.

HIS WORSHIP: Yes. Well - - -

THE COURT: Your Worship, this is in the same position
as the other one; there are a number of fresh charges.
HIS WORSHIP: Yes. Well, the - they add up to what,
1,2,3,4,5,6,7,8,9,10 - there are 10 charges alleging
that you administered morphine and four that you -
alleging that you administered cocaine, and a further
charge of failing to keep a register of drugs of
addiction and, if I am right, they have probably all
alleged to have happened between 31 December 1985 and,
well, in this case, 20 December 1986. That seems to be
the pattern right throughout, does not it? From your
interview with the police officers, are you aware of
the individual occasions that are involved in these
charges, Mr Katelaris, or not?

MR KATELARIS: I beg your pardon?

HIS WORSHIP: Are you - from your interview with the
police officers, are you aware of - even though, see,
all of these offences, if you take the administering
morphine of which there are - what did I say, eight,
and they are alleged to have occurred between December
one year and December the next, so that then it is not
telling you it happened on 18 February on 1 April, or
whatever, are you aware from your questions and answers
with the police officers of the individual occasions
that are being referred to in which it is alleged you
administered - - -

MR KATELARIS: I could not specify on the date, if that
is what you are referring to.

HIS WORSHIP: Yes. Well, if - I mean, they may not be
able to specify a date, or maybe even you - - -

MR KATELARIS: Just the period of time; I could not
pick out each individual instance . . . . . . .

HIS WORSHIP: Yes. Yes, but you have acknowledged you
- administering morphine on about the 10 occasions or
so that are referred to in the summonses. The - - -

MR KATELARIS: I have been strongly advised to seek
legal counsel, and, in fact, I have sought legal
counsel on three separate occasions with different
persons.

HIS WORSHIP: Yes.

MR KATELARIS: I believe the facts of the matter - in
fact, it was on - following that count that I have -
that the matter has not been resolved to this point,
and I have decided to adopt a straightforward view to
clear the matter, whichever way it is going to go,
rather than put it off and hide the facts of the matter
behind legal technicalities.

HIS WORSHIP: All right. Well, the - well, let us, -
well, as for the original summons that you received,
are you wishing to plead guilty or not guilty? That
summons alleges you failed to keep a register of drugs
of addiction between 31 December 1985 and 19 July 1986.

MR KATELARIS: I will be pleading guilty to that
charge.

HIS WORSHIP: You plead guilty to that. Now - - -

MR KATELARIS: May I ask - - -

HIS WORSHIP: Yes?

MR KATELARIS: - - - because I am not experienced in
the courtroom, I want to be given an opportunity just
to present - to speak on my own behalf, just as the
gentleman spoke on behalf of the lady preceding us.

HIS WORSHIP: Yes, you will - what - well, the
procedure is that you - we hear - I hear the facts for
the prosecution and give you the opportunity of asking
any questions that you want to, and then I hear if you
have got any record, and then after that, I hear
whatever you want to tell me that is relevant to the
proceeding. Now, my only concern at the moment is that
the precise details of these charges are only - well,
are missing, that there are general allegations made,
and no doubt based on something that you have said; it
is also alleged that this is a - the last of the
charges in this fresh series of charges also alleges
that you - I am sorry, it is not 'also'; it alleges
that between 31 December 1985 and 19 July 1986, being a
person who has lawful authority to supply a schedule 8
substance to another person, failed to keep a register
of drugs of addiction. Now, that is a different
offence to the one - the earlier one, although it is -
again, it is in somewhat similar terms.

MR KATELARIS: They are all inter-related.

HIS WORSHIP: Pardon?

MR KATELARIS: They are inter-related, they are the
same thing.

HIS WORSHIP: Yes. Yes, but no doubt it is alleging on
another day, at another time during that period that
you did not - or is it - - -

MR KATELARIS: One of them relates to failing to keep a
register, another one relates to preparing a false
document . . . . that register.

HIS WORSHIP: Well - - -

MR KATELARIS: Your Worship, is there a charge under
section 90B of the Crimes Act 1914?

HIS WORSHIP: I do not think so, but is that second -
that one that I just referred to is under 28(5) of the
Poisons and Narcotic Drugs Ordinance, so that there are
two - there is the offence in the summons and the
offence in 1890 are expressed in similar terms. Now,
is that an error and it should be under another section
and in a different form?

MS M. QUIRK: Yes. My understanding is that 15135 may
well be a duplication of 1890.

HIS WORSHIP: All right. And the - well, there is -
there has been no charge presented as far as I can see
pursuant to section 90B at all.

MS QUIRK: No, your Worship.

HIS WORSHIP: Well, now, Mr Katelaris, I can do two
things: one, I can certainly let you see the charge
sheets, but even that is not going to help you very
much. I - is there a statement that has been prepared
that in effect is going to indicate to him the basis on
which each of these charges is preferred?

MS QUIRK: Well, your Worship, there is no remand
statement as such. And there is record of interview
which I understand that - - -

HIS WORSHIP: Well, is that the - the record of
interview the basis of the charges?

MS QUIRK: Yes, your Worship.

HIS WORSHIP: Do you have a copy of the record of
interview.

MR KATELARIS: I do, myself, yes.

HIS WORSHIP: Yes.

MR KATELARIS: And you also have a copy of the
supplementary notes that I have provided, not in
interview, but separately.

HIS WORSHIP: I do not, but the police officer may.

MS QUIRK: Handwritten statement, yes.

HIS WORSHIP: Well, all right. Well, first of all, can
you confirm that the charge 15135, which is the summons
that issued, is the same as 1890 and you are going to
offer no evidence on one of them?

MS QUIRK: Yes, your Worship.

HIS WORSHIP: Well, he has pleaded guilty to the
summons matter, so perhaps it will make sense to
discharge - - -

MS QUIRK: Yes, we will offer no evidence on 1890; yes,
your Worship.

HIS WORSHIP: All right. Well, based on the material
that is in the record of interview, there are, I think
it is 10, is not it - 10 charges alleging that you
administered morphine to yourself, four charges
alleging that you administered cocaine to yourself, and
you have already pleaded guilty to the failing to keep
the register of drugs that is referred to in the
summons. Now, given that you have got the material in
the record of interview which are the basis on which
these summonses - or these charges have been
preferred, do you now have sufficient to enable you to
know whether you wish to plead guilty or not guilty to
these 10 charges of administering morphine and the four
counts of administering cocaine?

MR KATELARIS: I have already made a statement to that
- - -

HIS WORSHIP: Yes, I know that, but - - -

MR KATELARIS: - - - and I do - you know, I do intend
to plead guilty when it is - - -

HIS WORSHIP: Well, you plead guilty. Now, are you -
wishing the matters to be dealt with today?

MR KATELARIS: If possible.

HIS WORSHIP: All right. Well, very well. All right.
Well, I will hear the supporting material.

MS QUIRK: Thank you, your Worship."

6. In his affidavit the prosecutor states that at no stage was he ever charged with any of the particular offences, and further that he had intended to plead guilty to some of the offences but it was not possible for him to understand what these charges were and the dates on which the alleged offences were said to have occurred.

7. He also raised some matters of substance in relation to the offences. In respect of the offence against s.28(5) of the Poisons and Narcotic Drugs Ordinance 1978, the prosecutor stated that when he appeared before the Magistrate he did not realise that the obligation to keep a register applied only to a person who had lawful authority to supply a Schedule 8 substance to another person otherwise than by way of administration of the substance to the person, and claimed that as the drugs that he had used were all by way of administration he was not required to keep a register under s.28. He said that if he had known that the requirement to keep a register did not apply to him he would not have pleaded guilty to an offence against s.28(5). He also claimed that in relation to the offences of administering a Schedule 8 substance to himself contrary to s.6(1) he would have had a defence under s.6(4) which provides that it is a defence to a prosecution for an offence against s.6(1) that the defendant was acting in accordance with the directions of a medical practitioner.

8. Evidence was given on behalf of the first respondent in the form of an affidavit by Brian Samuel McDonald sworn 13 October 1987. He deposed that he was one of the officers of the Australian Federal Police and was involved with the first respondent in the investigation and prosecution of the prosecutor. He deposed to the oral conversations and written record of interview between the investigating police and the prosecutor. He stated that on 4 May 1987 at approximately 9.30 am he was present in the precincts of the court and there spoke to the prosecutor. He asked the prosecutor whether the matter was to proceed on that day and whether he had someone representing him in court, to which the prosecutor replied that he had seen a solicitor but wanted to get the matter resolved that day.

9. In the course of the morning he had a further conversation with the prosecutor in relation to the additional matters for which the prosecutor had not been served with a summons. He said that he did not show the prosecutor copies of the charges as he did not have them in his possession. He claimed, however, that he explained to the prosecutor the nature of the charges and requested one of the duty solicitors from Legal Aid to have a talk to the prosecutor.

10. It is clear from the evidence of the prosecutor, neither was it denied on the hearing of the return of the order nisi, that the prosecutor was never served with copies of the additional charges which were heard and disposed of by the Magistrate. This of course, as I shall demonstrate, is not fatal to the result of the present application provided informations had been laid before the Magistrate even if they were merely verbal.

11. I shall deal with the arguments submitted on behalf of the prosecutor in the order in which they were submitted by his counsel. The first submission was that the offences of administering a Schedule 8 substance to one's self created by s.6(1) and of failing to keep a Register of Drugs of Addiction created by s.28(2) and (5) of the Poisons and Narcotic Drugs Ordinance 1978 are, unless the contrary intention appears, indictable offences. Accordingly, so the submission ran, the Magistrate had no jurisdiction to hear and determine the offences charged under those provisions except pursuant to s.477 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory.

12. Both s.6 and s.28 appear in Part II of the Poisons and Narcotic Drugs Ordinance 1978. The penalties provided for offences against s.6(1) and s.28(5) are set out in s.8(3) of the said Ordinance. Section s.8(3) provides that a person who commits an offence against a provision of Part II, being an offence for which a penalty is not provided by any other provision of Part II, is punishable on conviction by imprisonment for a term not exceeding 2 years or a fine not exceeding $2,000 or both such imprisonment and fine. Section 8(3) is applicable to the offences created by s.6(1) and s.28(5) because a penalty is not provided by any other provision of Part II for those offences. Accordingly, s.33D of the Interpretation Ordinance 1967 applies to offences under s.6(1) and 28(5) of the Poisons and Narcotic Drugs Ordinance 1978. Section 33D, which was inserted into the Interpretation Ordinance 1967 by Ordinance No. 24 of 1985, coming into force on 21 June 1985, provides that an offence under any Ordinance that is punishable by imprisonment for a period exceeding one year is, unless the contrary intention appears, an indictable offence.

13. In answer to that submission, counsel for the first respondent submitted that a contrary intention does appear in the Poisons and Narcotic Drugs Ordinance 1978 so that s.33D of the Interpretation Ordinance 1967 does not apply to offences against s.6(1) and 28(5). Counsel relied upon the express provision in s.4(5) of the Poisons and Narcotic Drugs Ordinance 1978 that offences against s.4(2) and (3) are punishable upon indictment. It was submitted that a contrary intention appears in the Ordinance itself in that indictable offences are expressly provided for and distinguished from all other offences not so expressed to be indictable.

14. Reliance was placed upon a decision of Kelly J. in The Queen v. Sharon Rosemary Town delivered on 10 May 1982, unreported. In my opinion the first respondent's case is not assisted in any way by that decision, if indeed it can be described as an authoritative decision of this court. The matter came before his Honour by way of a directions hearing preliminary to the criminal trial of the accused. Counsel for the Crown intimated that a count would be added to the indictment charging an additional offence in respect of which the accused had not been committed for trial. This course was objected to by counsel for the accused. Having heard argument, which is not discernible because it was not transcribed, his Honour intimated that in due course the Crown's application to add the count should be made in the context of the trial and that if necessary he would give a formal ruling that the further count could not be added because ss.4, 5 and 6, when read together with s.8(3) of the Poisons and Narcotic Drugs Ordinance 1978, indicated what he described as "a contrary intention on the part of the legislature". The incomplete transcript does not disclose his Honour's reasons for that preliminary conclusion. That indication having been given, counsel for the Crown intimated that it would not persist in adding the extra count. It is to be noted that his Honour never gave a formal ruling. In any event, it is to be noted that s.33D of the Interpretation Ordinance had not come into operation on 10 May 1982.

15. Counsel for the first respondent also cited The Queen v. Dobson and Anor; Ex parte McKean 40 ACTR 1. In my opinion that authority supports the prosecutor's argument that the offences with which the prosecutor was charged are indictable offences and that no contrary intention appears from the provisions of the Poisons and Narcotic Drugs Ordinance 1978. In that matter the prosecutor was charged with two offences against the Poisons and Narcotic Drugs Ordinance 1978. The first was an offence of supplying cannabis to other persons contrary to s.4(2) of the Ordinance, and the second of having cannabis in possession for the purpose of supplying it to another person contrary to s.4(3). The prosecutor had applied to the Magistrate to hear and determine the charges in a summary manner and the Magistrate ruled that he did not have jurisdiction to do so. Connor J. ordered that a writ of mandamus issue to the Magistrate requiring him to consider and determine whether he should hear and determine the charges in a summary manner. He held that the fact that the offences charged were expressed to be punishable on indictment (s.4(5) of the Ordinance) did not prevent them from being dealt with summarily under s.477 of the Crimes Act 1900 (NSW).

16. Applying his Honour's reasoning to the offences now under consideration, it follows that if offences which are expressed to be punishable on indictment may be dealt with summarily under s.477 of the Crimes Act 1900 (NSW), then a fortiori offences which are not expressed to be so punishable but are so punishable by virtue of other legislation may likewise be dealt with pursuant to s.477. But, in any event, it is to be noted that s.477 has been amended three times since R. v. Dobson and Anor; Ex parte McKean was decided on 19 February 1982 and, of course, s.33D of the Interpretation Ordinance 1967 has been enacted. Section 9 of the Interpetation Ordinance 1937 which provides that all proceedings for offences (other than indictable offences) against the provisions of any Ordinance or Regulations thereunder may, unless the contrary intention appears in any Ordinance, be heard and determined by a court of summary jurisdiction, does not apply because offences against s.6(1) and s.28(5) of the Poisons and Narcotic Drugs Ordinance 1978 are indictable offences by virtue of s.33D of the Interpretation Ordinance 1967.

17. I hold that the offences against s.6(1) and s.28(5) with which the prosecutor was charged attracted the penalties prescribed by s.8(3) of the Ordinance and by the operation of s.33D of the Interpretation Ordinance 1967 were indictable offences. I turn to consider whether they could have been disposed of summarily by the Magistrate pursuant to s.477 of the Crimes Act 1900 (NSW) or otherwise and, if so, in what circumstances.

18. Section 477 of the Crimes Act 1900 (NSW) was in its present form on 4 May 1987, and the relevant parts read:

'477.(1) This section applies in relation to any
offence against a law of the Territory, being -

(a) a common law offence; or

(b) an offence punishable by imprisonment for a term
not exceeding -

(i) if the offence relates to money or other

(ii)in any other case - 10 years.

(2) Where -

(a) a person (in this section referred to as the
defendant) is before the Magistrates Court charged
with an offence in relation to which this section
applies;

(b) the Court is of the opinion that it has no
jurisdiction, apart from this section, to hear and
determine the charge summarily; and

(c) in the case of a charge relating to money or to
property other than a motor vehicle - the amount
of money or the value of the property does not, in
the opinion of the Court, exceed $10,000,

the Court may proceed in accordance with the succeeding
provisions of this section.

(3) The Court may invite the defendant to plead
guilty or not guilty to the charge.

(4) Where the defendant pleads guilty to the
charge, the Court may accept or reject the plea.

(5) . . .

(6) Where -

(a) the defendant pleads or is to be taken to have
pleaded not guilty to a charge;

(b) the Court is of the opinion that the case can
properly be disposed of summarily; and

(c) the defendant has consented to its being so
disposed of,

the Court may hear and determine the charge summarily
and may sentence or otherwise deal with the defendant
according to law.

(7) Where -

(a) the Court accepts a plea of guilty to a charge;

(b) the Court is of the opinion that the case can
properly be disposed of summarily; and

(c) the defendant has consented to its being so
disposed of,

the Court may sentence or otherwise deal with the
defendant according to law.

(8) Before forming an opinion whether or not a
case can properly be disposed of summarily, the Court
shall have regard to -

(a) any relevant representations made by the
defendant;

(b) any relevant representations made by the
prosecutor in the presence of the defendant;

(c) whether, if the defendant were found guilty or the
defendant's plea of guilty has been accepted by
the Court, the Court is, by virtue of this
section, empowered to impose an adequate penalty,
having regard to the circumstances and, in
particular, to the degree of seriousness of the
case; and

(d) any other circumstances which appear to the Court
to make it more appropriate for the case to be
dealt with on indictment rather than summarily.
(9) Where the Court accepts a plea of guilty to a
charge, and -

(a) the Court is of the opinion that the case cannot
properly be disposed of summarily; or

(b) the defendant has not consented to its being so
disposed of,

sub-sections 90A(5) to (10) (inclusive) of the
Magistrates Court Ordinance 1930 apply in relation to
the defendant as if the Court had accepted a plea of
guilty to the charge under that section.

(10) Where the Court disposes of a case summarily
pursuant to this section and convicts the defendant of
the offence, then, subject to sub-sections (11) and
(12), but notwithstanding any other law of the
Territory, the Court may not impose a sentence of
imprisonment exceeding 2 years nor impose a fine
exceeding $5,000.

(11) . . .

(12) Where -

(a) the Court disposes of a case summarily pursuant to
this section and convicts the defendant of an
offence; and

(b) the maximum penalty prescribed for the offence by
the law creating that offence (in this sub-section
referred to as the prescribed penalty) is less
than the maximum penalty that the Court, by virtue
of sub-section (10) or (11), as the case requires,
is authorized to impose.

the Court shall not impose on the defendant a penalty
that exceeds the prescribed penalty."

Sub-section 90A(5) to (10) of the Magistrates Court Ordinance 1930 provide for the committal for sentence of persons who have been charged with an indictable offence, have pleaded guilty to the charge and the court has accepted the plea.

19. Section 19(1) of the Magistrates Court Ordinance 1930 provides:

"19.(1) Whenever, by any law for the time being in
force in the Territory, any offence is punishable on
summary conviction or any person is made liable to a
penalty or punishment or to pay a sum of money for any
offence, act or omission, and no other provision is
made for the trial of the person committing the
offence, the matter may be heard and determined by the
Court in a summary manner under the provisions of this
Ordinance, and the jurisdiction shall be deemed to be
conferred on and may be execised by the Court."

20. As other provision has been made for the trial of persons committing offences against s.6(1) and 28(5) of the Poisons and Narcotic Drugs Ordinance 1978, namely by the provision of the penalties of 2 years or $2,000 or both, and the operation of s.33D of the Interpretation Ordinance, s.19 has no operation in respect of such offences.

21. It follows that the offences with which the prosecutor was charged could not have been disposed of summarily otherwise than by the operation of s.477. It is equally clear that a pre-requisite to the matters being disposed of summarily pursuant to s.477 was that the prosecutor consented to them being so disposed of, and that is so whether he pleaded not guilty (s.477(6)) or guilty (s.477(7)).

22. I find that the prosecutor never gave any such consent. It was somewhat faintly contended on behalf of the first respondent that in stating to the Magistrate that it was his intention to have all matters disposed of there and then in the court on that day, the prosecutor was consenting to the matters being heard and disposed of in a summary way. Such a submission is insupportable on the facts. In my opinion, the consent contemplated by s.477(6) and (7) is a clear and unequivocal consent and in effect an election on the part of the person charged to waive his right to trial by jury. Such an approach is supported by a number of authorities.

23. In In Re Feldt (1910) 13 WALR 28 a young person between the age of 12 and 16 was convicted before Justices on a charge of unlawful assault. Under ss.677-8 of the Criminal Code, in its form at that time, Justices, before dealing summarily with young persons such as the applicant in that case, were required to ask the accused whether he objected to the charge being dealt with summarily, and to add certain explanations as to the right of the accused to elect to be tried by jury. They gave the accused in that case no right of election and did not in any way follow the procedure laid down. The Full Court held that the failure to follow the procedure laid down rendered the conviction bad and ordered that the rule nisi for a writ of certiorari to quash the conviction be made absolute.

24. In Dodemaide v. Tucker (1927) VLR 539 the condition precedent to the right of a Court of Petty Sessions to hear and determine a charge of larceny of goods of a value not exceeding two pounds had not been followed, i.e. the following question should have been put to the defendant: "Do you consent that the charge against you shall be tried by us or do you desire that it shall be sent for trial by a jury?". It was held that that course of procedure was mandatory and could not be waived. Any conviction obtained otherwise than in accordance with the mandatory procedure was an excess of jurisdiction.

25. In Omant v. Reardon and Ors (1905) 1 TasLR 97 the Full Court of Tasmania held that the conviction of a youth of 14 years could not stand because the Justices who tried the case summarily had failed to make a statement set forth in s.2 of the Petty Offences Act 1931 (Vic), No.12 and therefore had no jurisdiction to try the case summarily.

26. In The Queen v. Cockshott and Ors (1898) 1 QB 582 it was held that where a person appeared before a court of summary jurisdiction and was not informed of his right to be tried by jury, the conviction was bad. Wright J. emphasised the importance of the pre-requisite set out in the relevant legislation and said:

"I think it would be wrong to fritter away the
protection which the section intends to give to accused
persons. It intends to give them protection in the
broadest and most generous way by providing that the
option of trial by jury shall be put before any accused
person before the charge is gone into. I think the
option ought to be put before him before he is asked
whether he pleads guilty or not guilty. The protection
is possibly even more necessary where he intends to
plead guilty."

And later:

"I think it is immaterial whether in fact he knows he
has the right or not; he ought to be informed of it by
the court".

27. The importance which superior courts in England have attached to failure to comply with procedural requirements to the exercise of summary jurisdiction is perhaps best demonstrated by Stefani v. John (1948) 1 KB 158. In that matter the appellant was charged before Justices with an offence punishable on summary conviction but was not informed before the charge was gone into as required by s.17 of the Summary Jurisdiction Act 1879 of his right to elect whether he would be tried summarily or by jury. During the hearing the Clerk to the Justices called attention to the omission, whereupon his counsel in the presence of the appellant stated that his client did elect to be tried summarily and that no technical question would be raised on the omission. The Justices thereupon adjudicated and convicted.

28. In allowing the appeal the Court of Appeal held that the statute which gave the Justices jurisdiction not having been complied with, they had no jurisdiction to adjudicate and the conviction was quashed. Lord Goddard C.J. said at p.160 that the real question was whether the Justices in the circumstances had power to act as a court of summary jurisdiction. He cited the passage from Wright J. in The Queen v. Cockshott and Ors, supra, and went on to say at p 161:

"Summary jurisdiction, of course, is entirely a matter
of statute. The Justices have only power to deal with
cases summarily if they are given power by statute so
to do, and if some provision in the statute is not
complied with, it follows that the Justices have no
jurisdiction to hear and determine."

The other members of the court agreed and the conviction was quashed.

29. An interesting Australian authority is R. v. Rochow (1983) 1 QdR. 184. In that case the accused person had to be asked to show cause why he should not be convicted and the Justices had not explained to him his right to be tried by jury as provided in s.444 of the Criminal Code. The Court of Criminal Appeal (Campbell CJ, Sheahan and McPherson JJ) held that the section must be strictly complied with before the accused can be considered as having validly elected summary trial, failure by the Justices to comply with the provisions of s.444 is not a mere irregularity capable of being waived, and it was immaterial whether or not the accused knew of his right to trial by jury.

30. Another example of the strictness with which supervisory courts will view the failure to comply with procedural pre-requisites to the exercise of summary jurisdiction by Justices is provided by Peattie v. Murphy (1964) 82 WN (Pt 1) (NSW) 163. In that matter the applicant was charged before a Magistrate with an indictable offence which was punishable summarily by consent. The procedure laid down by s.479 of the Crimes Act 1900 was not strictly followed. At the conclusion of the evidence for the defence, the Magistrate realised the error and drew the attention of the solicitor for the defendant to what had happened. By then, of course, the warning appropriate to a person about to be charged, and the necessary direction required at the close of the evidence for the prosecution, had not been given. At the conclusion of the evidence for the defence, and after the error had been brought to the attention of the solicitor for the defendant, the appropriate direction under s.479 was then given. The plea was not guilty and the defendant elected to be dealt with summarily. It was agreed that the evidence which had been given by him might be taken to be evidence for the defence and after argument and addresses the defendant was convicted as charged.

31. A Full Court (Brereton, Manning and Asprey JJ) held that the error was irremediable on the grounds that at the end of the case for the prosecution in what was up to that stage a committal proceeding, the defendant had gone into the witness box and given evidence without any warning of any sort. This placed him in a situation from which there could be no escape. If he had elected to be tried at Quarter Sessions, the evidence which he had then given would have been available against him. Accordingly the defect could not be cured.

32. It follows, in my opinion, that the prosecutor's first submission must prevail. The offences with which he was charged were indictable, he had not consented to them being disposed of summarily, and the Magistrate therefore had no jurisdiction to dispose of the charges summarily. The convictions recorded were accordingly made without jurisdiction and must be quashed.

33. This is sufficient to warrant an order that the order nisi be made absolute. However, as the two other grounds on which the order nisi was made are of general importance, I proceed to express my opinion upon those grounds.

34. The second submission on behalf of the prosecutor was that the Magistrate had no jurisdiction to hear all the charges against the prosecutor together and at the same time in the absence of the informant's and the prosecutor's consent, and the prosecutor never consented. It is necessary to consider the provisions of the Magistrates Court Ordinance 1930 for the purposes of this submission. It was conceded at the outset that there is no provision in the Ordinance for consent by a defendant charged with more than one offence for all offences to be heard together (cf. s.78A of the Justices Act 1902 (NSW)).

35. Proceedings may be commenced in the court by information (s.25). The information may be laid for an indictable offence or an offence which may be dealt with summarily as provided in s.19 (s.26(1)). Every information shall be for one offence only (s.26(2)). Where it is intended to issue a warrant in the first instance against the party charged, the information shall be in writing and on oath (s.30(1)). Where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing or on oath but may be verbal merely and without oath, whether any law under which the information is laid requires it to be in writing or not (s.30(2)). In relation to offences punishable summarily, if both parties appear either by counsel or a solicitor, the court shall proceed to hear and determine the information (s.112). Where the defendant is present at the hearing, the substance of the information shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted and why an order should not be made against him, and if he has no cause to show the court may convict him or make an order against him accordingly (s.113). The provisions of s.113 are relevant to the third submission on behalf of the prosecutor that the substance of the information was never stated to him and he was never asked if he had any cause to show why he should not be convicted.

36. Returning to the provisions of the Ordinance, where the defendant does not admit the case against him, the court shall proceed to hear the informant and his witnesses and the defendant and his witnesses and any evidence in reply, shall consider the whole matter and determine it (s.114). The other provision significantly relevant to the third submission is that upon application made to him by a person and upon payment of the fees as prescribed, the Clerk of the court shall furnish to that person a copy of, inter alia, an information (s.144).

37. In support of his submission that the Magistrate had no jurisdiction to hear all the charges simultaneously, counsel for the prosecutor relied upon Munday v. Gill [1930] HCA 20; (1930) 44 CLR 38 and in particular upon the dissenting judgment of Isaacs CJ. He also relied upon Brangwynne v. Evans (1962) 1 All ER 446 and First constable of Norfolk v. Clayton (1983) 2 AC 473.

38. In Munday v. Gill, supra, the High Court was dealing with a different factual situation to the present case. In Munday v. Gill separate informations had been laid against a number of persons for knowingly continuing in an unlawful assembly and against others for being a member of an unlawful assembly. At the commencement of the hearing before the Magistrate the defendants objected to the cases being heard together and one case was proceeded with and a conviction was recorded. By consent all the remaining informations were then taken together and evidence given in the preceding case by two police officers was by consent read over to them, adhered to and admitted, the depositions of the evidence of two other witnesses also being tendered and by consent of counsel for the defendants admitted as evidence. At the close of the case for the prosecution the Magistrate, at the request of the defendants' counsel, stated that the whole of the evidence given in the "lumped" cases would be taken into consideration in respect of each defendant for the purpose of determining whether there was an unlawful assembly. The defendants were all severally convicted and fined.

39. The headnote reads that it was held by Gavin Duffy, Rich, Starke and Dixon JJ (Isaacs CJ dissenting) that although the defendants charged upon different informations for summary offences were entitled to separate hearings, it was a right which could be renounced or waived by them and did not go to the jurisdiction of the Magistrate. Isaacs CJ dissented because he was of the view that the convictions were made without jurisdiction and such a fundamental defect could not be cured by the consent of the defendants. Careful reading of the various judgments in the case does not lead to the establishment of a principle that, if a Magistrate proceeds to hear and determine several charges against the same defendant without his consent, the Magistrate is acting without jurisdiction. The ratio decidendi of the case is, in my opinion, best revealed from the following passage in the judgment of Dixon J. at p.89-90:

"It may be conceded that defendants charged upon
different informations for summary offences are
entitled to separate hearings, but these cases show
that in England, Victoria and New Zealand it has long
been considered that failure to give effect to this
right does not go to the jurisdiction of the justices,
nor to the validity of the conviction, but is an
irregularity only which the defendants may waive. This
view is in accordance with principle as well as with
justice and convenience. The statutory requirement
that an information shall be confined to one offence
does not appear to affect the question whether a
defendant may waive his right to a separate hearing of
every information."

40. In Brangwynne v. Evans (1962) 1 All ER 446-7, Lord Parker CJ said:

"I am quite satisfied, however, that it has always been
a principle of our law that a defendant can only be
called on to answer one charge at a time in a
magistrates' court. An illustration of that is to be
found in s.10 of the Summary Jurisdiction Act, 1848,
(see now the Magistrates' Courts Act, 1952, s.1) and in
r.14 of the Magistrates' Courts Rules, 1952, (S.I. 1952
No. 2190; 32 Halsbury's Statutes (2nd Edn.) 421)
whereby it is expressly provided that no information
shall contain more than one charge. That is a good
illustration of the principle to which I have referred,
and, although there is no statutory provision on the
point, it would seem to follow that, if that principle
is to be adhered to, two informations, albeit each
containing one charge, ought not to be tried at the
same time, unless, of course, the defendant consents."

41. That authority was, however, modified by the House of Lords in Chief Constable of Norfolk v. Clayton (1983) 2 AC 473. In that matter two defendants were charged on a total of five informations with offences against s.78 of the Post Office Act 1969, three of the informations charging one of the defendants alone with the commission of an offence, and the other two charging each jointly with the other, and the informations having been tried together by the Justices in the absence of the defendants and without their consent, the defendants were convicted and the Divisional Court on applications for judicial review, quashed the convictions. In allowing the prosecutors' appeal the House of Lords held that in the circumstances of the case the applications for judicial review would be refused and the cases remitted to the Crown Court to continue the hearing of the appeals.

42. In his speech Lord Roskill, at p.487, identified the conflict of authority between trying two informations together without consent as an absence of jurisdiction on the one hand, and as one only of practice and procedure on the other. He observed that if Lord Parker were correct in Brangwynne v. Evans, supra, in his emphasis on want of jurisdiction, it is difficult to see how consent can give jurisdiction which would otherwise be lacking because in principle if there is no jurisdiction in a court which is the creature of statute, and whose powers are delimited by statute, jurisdiction cannot be conferred by consent. He referred to the relevant Magistrates Court rule (which is comparable to s.26(2) of the Magistrates Court Ordinance 1930 of this Territory) that an information shall be for one offence only, and observed that the rule is primarily designed to prevent informations being duplicitous.

43. Lord Roskill declined to lay down any rule of law in what he regarded to be so obviously an area of practice. He preferred to leave the decision whether to hear two or more informations simultaneously to the Magistrate's discretion. At the same time, he observed that when occasion arose for the exercise of the discretion, Justices would be well advised to enquire both of the prosecution and of the defence whether either side had any objection to all the informations being heard together, and if consent was forthcoming on both sides there was no problem. If such consent was not forthcoming, the Justices would then consider the rival submissions and rule as they thought right in the overall interests of justice.

44. Applying those dicta to the circumstances of the present case, I am not prepared to find that the Magistrate had no jurisdiction to hear all informations simultaneously in the absence of the prosecutor's consent. The advice proffered to Magistrates in Lord Roskill's speech is no doubt sound and should be applied. But failure to obtain consent or refusal of consent is not, in my opinion, fatal to the exercise of the Magistrate's jurisdiction. I would refuse to make the order absolute on this ground.

45. The third submission on behalf of the prosecutor was that he never pleaded guilty to the several offences in an unambiguous way and the Magistrate should not have recorded pleas of guilty in the circumstances. It is relevant to look at the context in which the alleged pleas of guilty were made and to examine whether the prosecutor was ever properly charged at all. There is no difficulty about the institution of the proceedings for failing to keep a Register of Drugs of Addiction contrary to s.28(5) of the Poisons and Narcotic Drugs Ordinance 1978. In that matter there was a written information laid before the Magistrate and a summons returnable on 4 May 1987 served upon the prosecutor.

46. It is in relation to the other charges in respect of which no summons ever issued that the difficulties arise. As set out above, proceedings may be commenced in the Magistrates Court by information laid, inter alia, by the informant (s.25). An information may be laid before a Magistrate in any case where a person has committed or his suspected of having committed in the Territory an indictable offence or an offence which may be dealt with summarily (s.26(1) and every information shall be for one offence only (s.26(2)). Where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing on oath but may be verbal merely and without oath (s.30(2)). That which marks the beginning or "institution" of proceedings is not the issue of a summons or warrant but the laying or making of an information (Brooks v. Bagshaw (1914) 2 KB 798; McDonnell v. Smith [1918] HCA 26; (1918) 24 CLR 409; Walsh v. Doherty [1907] HCA 51; (1907) 5 CLR 196).

47. The function of an information is to aver, that is, to allege, against the defendant matters which, as alleged, constitute an offence. If the information fails to do this, it is bad (Ex parte O'Sullivan; Re Craig (1944) 61 WN(NSW) 197; Ex parte De Mestre; Re Chisholm (1943) 61 WN(NSW) 43). As to the description of the offence, the general rule is that all the facts and circumstances should be stated with such certainty and precision that the defendant is enabled to judge whether they constitute an offence, to determine the species of offence, and to ensure that the defendant and the court know what case is being made against the defendant (Stone's Justices Manual, 88th Ed., 1956, at 230 quoted with approval by McClemens J. in Ex parte Eaton & Sons Pty Limited; Re Wellington (1975) 74 WN(NSW) 176-179).

48. It follows that where a person is in fact before the court, whether brought there by summons or by warrant, or for any other reason, an information, oral or written, may thereupon be laid and if this is done, there is jurisdiction to try the offence. But the information must be laid to give the Magistrate jurisdiction. In the context of the present case that means that the several charges in respect of which there was no written information, should have been stated verbally to the prosecutor. Otherwise it would not be possible to convict the prosecutor, even accepting that his pleas of guilty were unambiguous, because he had not been charged by information.

49. In order to support a conviction for an offence, it is necessary either that the information and summons on which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else if they do not, that the defendant should have been accurately charged orally before the Magistrate and should have raised no objection to the absence of a written information or summons (Ex parte Lovell; Re Buckley (1938) 55 WN(NSW) 63).

50. However, no such argument was advanced on behalf of the prosecutor, no doubt because of the provisions of s.228 of the Magistrates Court Ordinance 1930. Section 228 provides that where the person convicted was present at the hearing of the case, the conviction or order shall be sustained although there may not have been any information or summons, unless he objected at the hearing that there was no information or summons. The comparable provision in the New South Wales Justices Act 1902 is s.133 and there is some variance as to how widely s.133 is to be interpreted (Compare Ex parte Griffiths; Re Farrington (1944) 44 SR(NSW) 319; 61 WN 188 and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153; 55 WN(NSW) 63 with Ex parte Walker; Re Goodfellow (1944) 45 SR(NSW) 103; 62 WN(NSW) 58 and Ex parte Findlay; Re James (1953) 53 SR(NSW) 174; 70 WN 115.)

51. Nevertheless, counsel for the prosecutor contended that the adequacy of any plea of guilty is to be looked at in the context of the untidy way in which the prosecutor was charged before the Magistrate. The transcript shows that the Magistrate was told at the commencement of the hearing that there were a number of fresh charges. It is not clear who told the Magistrate that. It may have been his Clerk in court or the transcript may be wrong and it may have been counsel appearing for the informant. However, the Magistrate did not then charge the prosecutor orally. He outlined the general scope of the charges and proceeded on the assumption that the prosecutor knew about the substance of each charge because of some prior interview with police officers. That is the context in which the Magistrate interpreted the prosecutor's responses as amounting to a plea of guilty to each offence. It is quite clear on any reading of the transcript that the prosecutor never pleaded guilty to any offence in any clear and unambiguous way and that the Magistrate nevertheless recorded pleas of guilty to each offence.

52. The law on the subject is succinctly stated in Archbold Criminal Pleading Evidence and Practice 42nd Ed., para.4-57:

"It is important that there should be no ambiguity in
the plea, and that where the defendant makes some other
answer than Not Guilty or Guilty, as the case may be,
care should be taken to make sure that he understands
the charge and to ascertain to what the plea amounts.
Where the plea is imperfect or unfinished, and the
court of trial has wrongly held it to amount to a plea
of guilty, on appeal the Court of Appeal may order that
a plea of not guilty be entered and that the appellant
be tried on the indictment: R. v. Ingleson (1915) 1 KB
512; 11 CrAppR 21; or that the appellant be sent back
to plead again to the indictment: R. v. Baker (1912) 7
CrAppR 217; R. v. Hussey (1924) 18 CrAppR 121; R.
v. Brennan (1941) 28 CrAppR; or may merely quash the
conviction without sending the appellant back for
trial: R. v. Alexander (1912) 7 CrAppR 110; R. v.
Golathan (1915) 11 CrAppR 79; R. v. Field (1943) 29
CrAppR 151. In the case of an undefended defendant
who pleads guilty care should always be taken to see
that he understands the elements of the crime to which
he is pleading guilty, especially if the depositions
disclose that he has a good defence: R. v. Griffiths
(1932) 23 CrAppR 153 and see observations in R. v.
Blandford Justices, ex p G. (An Infant) (1967) 1 QB
82, D.C."

53. At no stage did the prosecutor plead guilty in clear and unambiguous terms. I uphold the third submission on behalf of the prosecutor. On this ground also the convictions should, in my opinion, be quashed.

54. It is unnecessary to deal with certain supplementary submissions made on behalf of the prosecutor about possible defences to the charges under s.6(1) and s.28(5) of the Poisons and Narcotic Drugs Ordinance 1978.

55. The order I make is that the order made on 27 August 1987 be made absolute and the convictions and penalties recorded against the prosecutor on 5 May 1987 be quashed. I shall hear counsel on the question of costs.