ACT Dpp v McDowall [2002] ACTSC 72 (26 July 2002)

Last Updated: 26 July 2002

AUSTRALIAN CAPITAL TERRITORY DIRECTOR OF PUBLIC PROSECUTIONS v STEPHEN SCOTT McDOWALL [2002] ACTSC 72 (26 July 2002)

CATCHWORDS

PRACTICE AND PROCEDURE - Jurisdiction - Application to deal with a summons issued by Magistrates Court relating to an alleged breach of recognizance - Recognizance ordered by Supreme Court in substitution for sentence imposed by Magistrates Court - Whether Supreme Court has jurisdiction to deal with the allegation of breach - Whether summons defective by reason of lack of jurisdiction - Summons defective and set aside.

Magistrates Court Act 1930

Crimes Act 1900

Supreme Court Act 1933

Australian Capital Territory (Self-Government) Act 1988 (Cth)

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

CD v Chief Executive, Department of Education & Community Services [2000] ACTSC 81; 27 Fam LR 19

NR Pty Limited v William Frances Kearney [2000] ACTSC 92

The Queen v J B & C H; Ex Parte Peter Steven Kuhnke [2001] ACTSC 10; (2001) 118 A Crim R 120

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58

Rose v Snape [2000] ACTSC 115

No. SCA 13 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SCA 13 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: AUSTRALIAN CAPITAL TERRITORY DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND: STEPHEN SCOTT McDOWALL

Respondent

ORDER

Judge: Higgins J

Date: 26 July 2002

Place: Canberra

THE COURT DECLARES THAT:

1. The proceedings before the Supreme Court are incompetent.

THE COURT ORDERS THAT:

1. The summons issued on 14 December 2001 by the Chief Magistrate is defective and is set aside accordingly.

2. The respondent be discharged from custody in respect of these proceedings.

1. On 27 February 2001, the respondent was convicted by Magistrate Doogan on a charge that he had, on 28 August 2000, assaulted Shari Andrello, his former partner. Her Worship imposed upon him a sentence of four months imprisonment.

2. On the same day, the respondent appeared before Magistrate Burns upon charges that on 19 January 2001 he intentionally inflicted actual bodily harm on Fiona West, his then current partner. He pleaded guilty to that charge and a conviction was recorded.

3. Magistrate Burns imposed a sentence of 12 months imprisonment, suspended after six months upon a two year recognizance with supervision. The sentence was to commence on 19 January 2001, to reflect time spent in custody.

4. There was, additionally, a charge found proved of breach of recognizances entered into in respect of other unrelated and earlier offences found proved on 17 October 2000, both by Magistrate Madden and Magistrate Campbell. A concurrent sentence of two months imprisonment was imposed for the breach of those recognizances.

5. On 28 February 2001, the respondent filed a Notice of Appeal against the severity of the first two sentences. That had the effect of staying the enforcement of the first two sentences, pursuant to s 216 of the Magistrates Court Act 1930.

6. On 2 March 2001, the respondent sought bail pending the hearing of the appeal before Miles CJ. Bail was refused.

7. On 2 April 2001, the appeal was heard before me. It was upheld. Magistrate Doogan's sentence was varied to three months from 1 January 2001 to take account of time spent in custody.

8. Magistrate Burns' sentence was varied by reducing the head sentence to nine months imprisonment, retaining the same commencement date. The respondent was ordered to be released forthwith upon the same terms as imposed by Magistrate Burns (that is, two years good behaviour with supervision from 27 February 2001 but with additional terms requiring acceptance of directions as to residence and employment).

9. It is that latter recognizance that is relevant for present purposes.

10. On 14 March 2002, the respondent appeared before me upon a summons issued on 14 December 2001 by the Chief Magistrate upon information laid on oath before him alleging breach of that recognizance by reason of various failures to accept supervision and obey directions.

11. Those proceedings were adjourned to 2 April 2002 and subsequently to 31 May 2002 when I heard submissions as to whether this Court possessed original jurisdiction to entertain the proceedings. My concern was that the orders made on 2 April 2001 had been made in the exercise of the Court's appellate jurisdiction and varied orders made in the Magistrates Court.

12. The question was whether, in those circumstances, the recognizance could only be enforced at first instance by the Magistrates Court.

13. Both of the parties submit that this Court has jurisdiction to entertain the matter. However, that does not relieve me of the obligation to determine whether the Court has jurisdiction.

14. The appellate jurisdiction I exercised in varying the recognizance is that conferred by ss 207 and 208 of the Magistrates Court Act 1930.

15. The powers I exercised were those set out in s 218(1) of that Act, to:

"(a) affirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; or

(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to the directions the Supreme Court thinks fit."

16. As noted above, I varied the sentences imposed including a variation of the order suspending part of Magistrate Burns' sentence.

17. The recognizance was ordered pursuant to s 403, Crimes Act 1900 (formerly s 556B(1)).

18. Also relevant is s 218(2) of the Magistrates Court Act 1930. It provides:

"A judgment or order of the Supreme Court under subsection (1)(a) or (b) shall have effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly."

19. The power to deal with an offender who has allegedly breached a recognizance is expressed in s 404(1) (formerly 556C(1) Crimes Act 1900). The summons to be issued is one:

"... directing the person to appear before the court by which he or she was so released at a time specified in the summons and show cause why he or she should not be dealt with by that court under this section or, if the information is laid on oath, may issue a warrant for the arrest of the person and for his or her being brought before the court by which he or she was so released to be dealt with under this section."

20. The only express power granted to the Supreme Court to deal with a person alleged to have breached a recognizance imposed by a Magistrates Court order is referred to in s 404(6), Crimes Act 1900 in the following terms:

"Where a person who has been released under section 403(1) is convicted by the Supreme Court of an offence committed during the period of good behaviour, the Supreme Court may, upon convicting the person and in addition to dealing with the person for the offence of which he or she is convicted, deal with the person in like manner as it or the Magistrates Court, as the case may be, could deal with the person if he or she were before whichever of those courts is the appropriate court in pursuance of a summons or warrant issued under subsection (1)."

21. The clear intent of ss 402 to 404, Crimes Act 1900 is that each of the two courts is empowered to conditionally release only offenders before it. Each court, save for s 404(6), Crimes Act 1900, will only enforce its own release order.

22. It is true, as Mr Sharman for the respondent submitted, that in Kelly v Apps [2000] FCA 687 (19 May 2000); [2000] FCA 687; (2000) 98 FCR 101, Wilcox J, with the concurrence of Gallop and Marshall JJ, stated, referring to the conferral of jurisdiction on this Court ("all original and appellate jurisdiction that is necessary to administer/for the administration of justice in the Territory" - s 20(1)(a) Supreme Court Act 1933 and s 48A, Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act):

"17. The words of [s 20(1)(a) Supreme Court Act 1933] are extremely broad. They include all appellate jurisdiction that is necessary to administer justice in the Territory.

18. The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory."

23. That provision, and the overriding provision, so far as the ACT Legislature is concerned in s 48A, Self-Government Act, has received some elucidation in subsequent decisions.

24. In CD v Chief Executive, Department of Education & Community Services [2000] ACTSC 81 (6 October 2000); [2000] ACTSC 81; 27 Fam LR 19, Crispin J stated, at [54]:

"Subsection 380(2) of the Children and Young People Act 1999 provides that a party may appeal to the Supreme Court from the making of an order under Pt 7 of the Act only on a question of law or on the ground that a substantial miscarriage of justice has occurred. However, subs (5) of that section provides that nothing in Chapter 11 (Appeals and Reviews), of the Act limits the operation of Pt 11 of the Magistrates Court Act 1930 or `another Act that makes provision with respect to the appellate jurisdiction of the Supreme Court'. In Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court of Australia held that a comparable provision contained in subs 207(2) of the Magistrates Court Act 1930 prevented any limitation by the earlier subsection on the appellate jurisdiction conferred upon the Supreme Court by s 20 of the Supreme Court Act 1993. Paragraph (1)(a) of that section grants the Supreme Court `all original and appellate jurisdiction that is necessary to administer justice in the territory'. The paragraph was said by Wilcox J at [18] to reflect a legislative intention to `ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory'. The decision of the Full Court is binding and there is no apparent basis upon which it could be distinguished. Accordingly, I am obliged to find that subs 380(5) prevents any limitation upon the wide appellate jurisdiction conferred by s 20 of the Supreme Court Act."

25. In NR Pty Limited v William Frances Kearney [2000] ACTSC 92 (24 October 2000), Miles CJ observed:

"7. It is necessary to state yet again the principles governing the appeal since they have or may have been affected by the recent decision of the High Court of Australia in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3; 160 ALR 588, and the decision of the Full Court of the Federal Court of Australia in Kelly v Apps [2000] FCA 687.

8. The jurisdiction of this Court to entertain and determine an appeal from a decision of the Magistrates Court sitting in its civil jurisdiction is conferred by s 20(1)(a) of the Supreme Court Act 1933, which provides that the Supreme Court has `all original and appellant (sic) jurisdiction that is necessary to administers (sic) justice in the Territory'. This provision `is obviously intended as a salutary provision to enable justice to be done by the Supreme Court': Kelly v Apps at [21] per Wilcox J.

9. The decision in Kelly v Apps was handed down by the Full Court on 19 May 2000. The present appeal was conducted without consideration of the effect of the Full Court decision. I will assume that the provisions of s 393 of the Magistrates Court (Civil Jurisdiction) Act 1982 as to the powers of the Supreme Court on appeal remain unaffected, and that the principles as to fact finding on such appeals also remain unaffected. I leave unresolved the question whether Kelly v Apps means that the Supreme Court is not constrained by s 393 nor by previous doctrine about the restricted role of appeal courts."

26. Miles CJ, in The Queen v J B & C H; Ex Parte Peter Steven Kuhnke [2001] ACTSC 10 (9 February 2001); [2001] ACTSC 10; (2001) 118 A Crim R 120, also stated:

"1. The nature of the present matter needs clarification. The heading on the documents filed suggests that it is within both the appellate jurisdiction and the original jurisdiction of the Court, which would appear, on an initial impression at least, to be impossible. Perhaps in the light of Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, it is possible. Perhaps it does not matter.

4. Neither counsel sought to rely on the general appellate jurisdiction of the Court conferred by s 20 of the Supreme Court Act 1933 (the Supreme Court Act) and recognised in Kelly v Apps. If that jurisdiction were sought to be invoked, the Court would need to make a decision whether the appellate jurisdiction conferred by s 20 extends to an appeal against a decision of a Magistrate which is tantamount to an acquittal. The provisions of the Federal Court of Australia Act 1976, which give the Federal Court jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory, have been held not to extend to appeals against acquittals: Thompson v Mastertouch TV Service Pty Limited (No 3) [1978] FCA 24; (1978) 19 ALR 547. It is not necessary for the purpose of the present proceedings to decide whether s 20 is so limited in its operation."

27. The most recent observations in connection with Kelly v Apps (supra) were made by Spender J in FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58 (14 June 2002):

"10. The crucial submission for the appellant relies on a decision of the Full Court of the Federal Court in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101. ...In that case, a Magistrate had ordered that certain charges against the respondent be dismissed, and that the appellant pay the respondent's costs, the quantum of which was reserved...

11. In an ex tempore judgment, Wilcox J held in Kelly v Apps that s 20(1)(a) of the Supreme Court Act conferred jurisdiction on the Supreme Court to entertain an appeal against the making of a costs order by a Magistrate who dismissed an information for an offence...

14. It seems to me to be surprising that s 20 of the Supreme Court Act should be regarded as confirming the width of the power of the Supreme Court in respect of jurisdiction it possesses, but not as an express grant of power to rectify any wrong that might occur in the administration of justice by any court in the Australian Capital Territory.

15. Rights of appeal can only be conferred by statute, and the extent of those rights is to be determined by the terms of the enactment conferring those rights. The Tenancy Tribunal Act confers a right of appeal on questions of law. The orthodox and ordinary construction of that express conferral of power in a particular and defined circumstance involves the conclusion that, in cases where a right of appeal is not granted, as in this case, in respect of questions of fact or questions of mixed fact and law, an appeal does not lie in respect of those matters. Such an approach is a manifestation of the well-known expressio unius principle.

16. Moreover, as a matter of general construction, where there has been a specific grant of power in a particular area, that grant governs the position even where there is a more general provision. Again, this is a manifestation of the principle generalia specialibus non derogant.

17. The difficulties involved in this ex tempore judgment of the Full Court of the Federal Court in Kelly v Apps have been recognised in later cases by judges at first instance.

18. In Rose v Snape [2000] ACTSC 115, Higgins J decided that an application to cancel a periodic detention order made by the Supreme Court in substitution of a sentence imposed by the Magistrates Court should be dismissed. His Honour said at [47]:

`It now seems that, if Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice.

Is leave no longer necessary for Small Claims Appeals? May appeals from the Administrative Appeals Tribunal be brought on the merits? Should this Court now regard itself as having jurisdiction to try summary offences? If so, by Judge alone or by jury?

As Crispin J noted in Westbrook v R (unreported, ACTSC, 18 July 2000, No. SCA 23 of 2000) the decision in Kelly v Apps appears to render any such limitation on appeals irrelevant. Presumably, the same follows for the conferral of original jurisdiction.

Nevertheless, even if, arguably, there is now jurisdiction in this Court to deal with matters expressly included only within the jurisdiction of the Magistrates Court, this Court would ordinarily decline, pursuant to s 20(2) to arrogate to itself that jurisdiction.

This application, for reasons already expressed, falls within the jurisdiction of the Magistrates Court. There is, in my view, no compelling reason for this Court to entertain this application, even if it has concurrent jurisdiction.'

19. In Rose v Snape, Higgins J referred to a decision of a Full Court of the Supreme Court of the ACT in Spurr v Fishpool (1972) 20 FLR 174, where Fox, Blackburn and Connor JJ unanimously held that a prosecution appeal against a costs order made by a Magistrate in dismissing a criminal information was incompetent. Higgins J said at [46]:

`If there is a difference between Spurr v Fishpool and Kelly v Apps other than the mere semantics of the legislative provision in question, I do not perceive it. It may be that their Honours in Spurr v Fishpool took the old-fashioned view that appellate jurisdiction needs to be expressly conferred.'

20. I note that counsel for the successful respondent in Spurr v Fishpool was T. J. Higgins, now Higgins J.

21. His Honour concluded that the terms of s 218(2) of the Magistrates Court Act were `quite clear' and that an `order made by this Court on appeal from the Magistrates Court takes effect as if it was an order of that Court. If it needs to be enforced, it is that Court's processes which must be invoked.' His Honour held that the present application fell within the jurisdiction of the Magistrates Court and hence there was no compelling reason for the Supreme Court to entertain the application, even if it had a concurrent jurisdiction. Kelly v Apps was thus able to be distinguished.

22. It is the same broad jurisdictional argument referred to in Kelly v Apps that is raised in this case.

23. Even if one accepts, as a first instance Judge in the Supreme Court of the Australian Capital Territory must, that Kelly v Apps was rightly decided on the facts of that case, the decision is clearly distinguishable from the present circumstances.

24. I find myself in respectful agreement with the observations of Crispin J in FAI Properties Pty Limited v Nationwide Travel Canberra Pty Limited [2000] ACTSC 82, an unreported judgment of 6 October 2000. That case was similar to the matter I am presently concerned with, in that it involved an appeal from the Tenancy Tribunal. I agree with the following observations of Crispin J at [14] - [18] which I will, for that reason, set out at length:

`The Tenancy Tribunal Act 1994 imposes significant limitations on appeals from decisions of the Tribunal. Section 58 provides that a party to a Tribunal hearing may appeal to the Supreme Court on a `question of law from a decision of the Tribunal in that hearing'.

It is true that the questions of fact are not explicitly referred to in the section and the expressio unius est exclusio alterius rule of statutory construction must be applied with caution ...

In Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court held that s 20 of the Supreme Court Act 1933 (ACT) provided `all appellate jurisdiction that is necessary to administer justice in the Territory': per Wilcox J at [17]. Indeed, their Honours said that the intention of the legislature seems to have been to `ensure that the Supreme Court had the ability to right any wrong that might have occurred in the administration of justice by any court within the Territory': per Wilcox J at [18]. Whilst s 207 of the Magistrates Court Act 1930 purported to stipulate the appellate jurisdiction of the Supreme Court in relation to decisions under that Act subs 207(2) provided that nothing in the relevant part of the Act limited the operation of any other Act that made provision with respect to the appellate jurisdiction of the Supreme Court. The Full Court said that the important point was that there was a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act 1933 and that the Magistrates Court Act 1930 specifically stated that nothing in the relevant provisions was to cut down jurisdiction conferred under other legislation. ...'

25. ... It has been suggested that the generalia specialibus rule should be observed more strictly when the apparently inconsistent provisions are found within a single Act than in separate enactments..." (References omitted)

28. What then follows from the conferral of jurisdiction by s 48A, Self-Government Act and s 20, Supreme Court Act 1933?

29. Whilst, as Spender J indicates, the maxim of construction generalia specialibus non derogant may assist, s 48A, Self-Government Act, is an overriding provision alterable only, whether expressly or impliedly, by a provision of a Commonwealth Act. Any inconsistent provision in an enactment of the ACT Legislature is of "no effect to the extent that it is inconsistent with a law". "Law" means any law in force in the Territory other than an "enactment" or a "subordinate law" (s 28, Self-Government Act). An "enactment" is a law made by the Assembly or deemed to be an "enactment" by virtue of s 34, Self-Government Act. Commonwealth Acts, including the Self-Government Act, are excluded from the legislative power of the ACT Legislature. The Supreme Court Act 1933 is able to be amended. It is an enactment but the provisions of s 48A, Self-Government Act are entrenched so far as the ACT Legislature is concerned.

30. Whilst an enactment could impliedly repeal s 20, Supreme Court Act 1933, restricting appeal rights in respect of specific matters, that is not the case with s 48A, Self-Government Act. Indeed, Kelly v Apps (supra) itself was a decision that an appeal right existed even though no statute had created it, apart from s 20 itself implicitly doing so.

31. However, whilst I accept that this Court has broad appellate and original jurisdiction it is, absent express conferral, to extend only so far as is necessary to do justice in the Territory. There is no derogation from that ideal in the Magistrates Court enforcing orders made or deemed made by it. Further, the provisions of s 20 and s 48A (supra) do not purport to abolish the distinction between original and appellate jurisdiction.

32. I note that in Rose v Snape [2000] ACTSC 115 (7 December 2000), I took the view that a periodic detention order made in the exercise of the appellate jurisdiction of this Court fell to be enforced within the original jurisdiction of the Magistrates Court.

33. The recognizance in the present case was similarly made, not in the exercise of the original jurisdiction of this Court, but in the appellate jurisdiction.

34. The distinction should not be overlooked. The appellate jurisdiction over this matter was exhausted when final orders were made. It could not be doubted that, had the appeal been dismissed, the sentence confirmed in consequence would have been perceived as a sentence of the Magistrates Court. The fact this Court has varied a sentence on appeal does not alter its juridical character.

35. I therefore conclude that the proceedings before me are incompetent. The purported summons is defective and is set aside accordingly, and the respondent be discharged from custody in respect of these proceedings.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Higgins.

Associate:

Date: 26 July 2002

Counsel for the applicant: Mr A Robertson

Solicitor for the applicant: ACT Director of Public Prosecutions

Counsel for the respondent: Mr T Sharman

Solicitor for the respondent: Saunders and Company

Date of hearing: 31 May 2002

Date of judgment: 26 July 2002