Ross v R [1979] HCA 29; (1979) 141 CLR 432 (21 June 1979)

HIGH COURT OF AUSTRALIA

ROSS v. THE QUEEN [1979] HCA 29; (1979) 141 CLR 432

Criminal Law (Q.)

High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Aickin(5) JJ.

CATCHWORDS

Criminal Law (Q.) - Appeal - Court of Criminal Appeal - Summary conviction - Aggravated assault - Whether indictable offence or simple offence - Criminal Code (Q.), ss. 3, 335*, 343*, 343A*, 344*, 345*, 659, 668D**, 673** - Children's Services Act, 1965 (Q.), s. 29 (7) (c)***.

* The relevant provisions of ss. 335, 343, 343A, 344 and 345 of the Criminal Code (Q.) are set out at pp. 436-437, post.

** Sections 668D and 673 are set out at pp. 434-435, post.

*** Section 29 (7) (c) of the Children's Services Act, 1965 (Q.) is set out at p. 434, post.

HEARING

Sydney, 1979, April 4; June 21. 21:6:1979
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

June 21.
The following written judgments were delivered: -
BARWICK C.J. In this appeal I have had the advantage of reading the reasons he gives for reaching it. (at p433)

2. I should like to add on my own account that the legislative scheme of the sections set out in the reasons of my brother Gibbs is that certain indictable offences may be tried summarily with specified penal consequences. The manner of trial does not alter the relevant statutory nature of the offence. If the offence be a common assault, it remains indictable because a misdemeanour though by the statute allowed to be tried summarily. The penal consequence of conviction will depend on the manner of trial. (at p433)

3. When s. 344 of the Criminal Code (Q.) provides that punishment appropriate to an assault in circumstances of aggravation shall not be inflicted "unless" the defendant "has been charged therewith", it is quite clearly, in my opinion, not creating a new and different offence from the misdemeanour of common assault. The aggravation affects the possible penalty but does not alter the statutory nature of the offence. The presence of the word "charged" in s. 344 means no more, in my opinion, than that the defendant, at a time when he has an opportunity of denying or dealing with the alleged circumstances of aggravation, must have been made aware of the prosecutor's intention to establish such circumstances of aggravation: and the defendant must be given notice of the particular circumstance or circumstances of aggravation alleged. Naturally, the usual place for any such information to be found is in the document charging the common assault, i.e. the complaint or information. But the presence there of the particulars of circumstances of aggravation does not alter the statutory nature of the offence. (at p433)

4. Section 29 (7) (c) of the Children's Services Act, 1965 (Q.), as amended, and s. 659 of the Criminal Code are, in my opinion, addressed to completely different matters, the latter section, in my opinion, having no impact on the former. (at p433)

5. The purpose of s. 29 (7) (c) is to give a right of appeal because of the relevant statutory nature of the offence with which the defendant has been charged and convicted. It is the statutory nature of the offence which is determinative of the right of appeal. (at p434)

6. Section 659 is addressed, in my opinion, to the consequence of the summary conviction of an indictable offence. It is not a section designed to alter the statutory nature of the offence which has been charged and tried summarily. So far from dealing with the statutory nature of the offence, s. 659, in my opinion, by deeming the nature of the conviction to be other than in fact it is, is making provision for the penal consequences which flow from the conviction, and therefore with the penal consequences of the conviction. For the purposes of a right of appeal, the conviction is of an indictable offence: for the purposes of punishment, the conviction is deemed to be a conviction for a simple offence. (at p434)

7. I agree with the course proposed by my brother Gibbs. (at p434)

GIBBS J. The question raised by this application for special leave to appeal is whether the Court of Criminal Appeal of Queensland has jurisdiction to entertain an appeal by a person who has been convicted before a Children's Court constituted by a stipendiary magistrate on a charge of aggravated assault under s. 344 of the Criminal Code (Q.). (at p434)

2. By s. 668D of the Criminal Code a person convicted on indictment is given a right to appeal to the Court of Criminal Appeal, although in some cases mentioned in the section the leave of the Court or the certificate of the judge of the court of trial is necessary. However, there are two statutory provisions relevant to the present case that give to a person summarily convicted of an indictable offence the same right of appeal as if he had been convicted on indictment. The earlier of these provisions is a s. 29 (7) (c) of the Children's Services Act, 1965 (Q.), as amended, which so far as material is as follows:
"A person convicted of an indictable offence before a Children's Court and the Attorney-General of the State shall have the same rights of appeal against conviction and against sentence passed consequent thereupon as if the convicted person had been convicted on indictment."
The other provision is s. 673 of the Criminal Code, which was inserted in its present form by s. 37 of the Criminal Code and the Justices Act Amendment Act, 1975 and which provides as follows:
"A person convicted summarily of an indictable offence may appeal against his conviction and against the sentence passed on his conviction on the same grounds and on the same conditions as if he had been convicted on indictment.
The rights conferred by this section are conferred to the exclusion of any other right of appeal conferred by the Justices Act 1886-1974 on persons aggrieved by summary convictions and sentences passed on such convictions."
Clearly the question whether there is a right of appeal to the Court of Criminal Appeal in the present case depends on whether the offence of which the would-be appellant was convicted was an indictable offence. (at p435)

3. The expression "indictable offence" is not defined by the Criminal Code but its meaning is revealed by s. 3 of the Criminal Code which is in the following terms:
"Offences are of three kinds, namely, Crimes, Misdemeanours, and Simple Offences.
Crimes and Misdemeanours are indictable offences; that is to say, the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.
A person guilty of a simple offence may be summarily convicted by two justices in petty sessions.

An offence not otherwise designated is a simple offence."

It appears from the words of this section that if an offence is a crime or a misdemeanour it is an indictable offence, and that the fact that an offender may be prosecuted or convicted otherwise than upon indictment, pursuant to an express provision permitting that to be done, does not necessarily mean that the offence is not an indictable offence. (at p435)

4. The question for decision in the present case therefore depends on whether an aggravated assault is a crime or misdemeanour, and the latter question requires a consideration of the provisions of the Criminal Code by which the offence is created. Assaults are defined by s. 245, and by s. 246 it is provided that an assault "is unlawful and constitutes an offence unless it is authorized or justified or excused by law". Those sections however throw no light on the question whether an assault is a crime or misdemeanour, or merely a simple offence. The provisions that govern that question are those of Ch. XXX and Ch. XXXI of the Criminal Code. In Ch. XXX, which is headed "Assaults", there appears s. 335 which deals with common assaults, and provides as follows:
"Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment with hard labour for one year."
Among the other sections in that Chapter is s. 339 which provides that any person who unlawfully assaults another and thereby does him bodily harm is guilty of a misdemeanour. Chapter XXXI, which is headed "Assaults Punishable on Summary Conviction" contains ss. 341- 346. Section 341 provides that any person who unlawfully assaults another may, subject to the provisions of Ch. XXXI, be summarily convicted before two justices. Section 342 requires the justices, in certain circumstances, to abstain from dealing summarily with a case of assault. Then follow three sections which make provision for the punishment which may be imposed upon persons convicted summarily of certain assaults. Section 343 provides (inter alia) as follows:
"Any person who unlawfully assaults another is liable on summary conviction to a fine of five hundred dollars, inclusive of costs, and in default of payment to imprisonment with hard labour for six months unless the fine and costs are sooner paid, or to imprisonment with hard labour for six months in the first instance."
Section 343A provides, inter alia, as follows:
"Any person who unlawfully assaults another and thereby does him bodily harm is liable on summary conviction to a fine of one thousand dollars inclusive of costs and in default of payment thereof to imprisonment with hard labour for two years, or to imprisonment with hard labour for two years in the first instance."
Section 344 provides, inter alia, as follows:
"If the justices are of opinion that the assault is of such an aggravated nature that the offender cannot be sufficiently punished under the provisions of section 343 or 343A, the offender is liable on summary conviction to a fine of one thousand dollars, inclusive of costs, and in default of payment to imprisonment for twelve months unless the fine and costs are sooner paid, or to imprisonment with hard labour for twelve months in the first instance.

. . .
Without prejudice to the generality of the foregoing provisions of this

section, the following shall be circumstances of aggravation: -
(a) that the unlawful assault is an offence of a sexual nature as defined by section 2A of "The Criminal Law Amendment Act of 1945';
(b) that the person assaulted is a child under the age of seventeen years;

(c) that the person assaulted is a female;
(d) that the person assaulted is a male child under the age of fourteen

years.
An offender shall not be punished as for an assault of an aggravated nature within the meaning of this section unless he has been charged therewith and the circumstance or circumstances of such aggravation have been stated in such charge.

. . ."
Section 345 provides, inter alia, as follows:
"When a complaint of an assault has been heard upon the merits before

justices, on complaint by or on behalf of the party aggrieved, under section 343, 343A or 344, and they dismiss the complaint, they are required forthwith to make out a certificate of the fact of such dismissal and to give it to the accused person." (at p437)

5. The scheme of these two Chapters of the Code is, in my opinion, that by Ch. XXX certain assaults are declared to be misdemeanours and by Ch. XXXI provision is made for the summary conviction and punishment of persons who have committed those misdemeanours in certain circumstances. There is a significant distinction between the language used in ss. 335 and 339, on the one hand, and ss. 343, 343A and 344 on the other. By s. 335 common assault is declared to be a misdemeanour but by s. 343 a person guilty of common assault is rendered liable on summary conviction to the punishments mentioned in the section. Similarly s. 339 creates the misdemeanour of assault occasioning bodily harm and s. 343A sets out the punishments to which a person guilty of that misdemeanour is liable on summary conviction. It is clear beyond argument that a person summarily convicted under s. 343 or s. 343A is convicted of a misdemeanour, i.e., of an indictable offence. Section 344 differs from ss. 343 and 343A in that it has no direct parallel in Ch. XXX. Nevertheless the words of s. 344, like those of ss. 343 and 343A, are not apt to create an offence; rather, they provide the penalties that may be imposed if the offender is dealt with summarily, instead of upon indictment. Both ss. 343 and 344 have the effect that a person who has committed the misdemeanour of common assault may be prosecuted and convicted summarily, but s. 344 enables increased penalties to be imposed if the assault has been an aggravated one. The provisions of s. 345, which treat a conviction under s. 344 as a conviction for assault, support the view that s. 344 creates no new offence, and that view was accepted as correct by the Court of Criminal Appeal in Cronin v. Hamilton-Smith; Ex parte Hamilton-Smith (1958) Qd R 24, at pp 31, 39 . (at p437)

6. Counsel for the respondent submitted that s. 344 was intended to create a new offence, different from assault, of which the circumstance of aggravation forms an element. In support of this argument reliance was placed on Reg. v. Phillips and Lawrence (1967) Qd R 237 , which it was submitted contained statements inconsistent with Cronin v. Hamilton-Smith; Ex parte Hamilton-Smith (1958) Qd R 24 . In Reg. v. Phillips and Lawrence the appellants had been convicted of a number of offences, including robbery in company with personal violence. The Crown case was that the offences were committed in the prosecution of a common purpose and that s. 8 of the Criminal Code was applicable. That section is as follows:
"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
It was held, for reasons not relevant to the present case, that there had been a misdirection as to the effect of s. 8. However, two members of the Court of Criminal Appeal dealt with a further argument, viz. that when the prosecution relies on s. 8 an accused person cannot be convicted of robbery with personal violence unless he himself has used personal violence. This argument rested on the contention that robbery with personal violence is not a different offence from robbery, but is the same offence with circumstances of aggravation, so that "offence" in s. 8, when applied to the facts of the case in question, meant simply robbery, and an offender, who did not himself use personal violence, was deemed by s. 8 to be guilty of robbery only. Hanger and Hart JJ. rejected this argument, holding that robbery and robbery with personal violence are different offences. Hanger J. said (1967) Qd R, at p 261 :
"As by s. 411 the offender becomes liable to an increased punishment if the robbery is accompanied by the circumstance of aggravation, it appears to me that the circumstance of aggravation is an element of the offence. In these circumstances, the offence in s. 8 includes the offence of robbery with any circumstance of aggravation."
Hart J. said (1967) Qd R, at p 285 :
"Section 2 (of the Criminal Code) is as follows - 'An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.' Robbery in company makes a person liable to punishment, robbery in company with personal violence makes him liable to another punishment. I think therefore that each of these is an offence. I also think that s. 575 contemplates that an offence with a circumstance of aggravation may be an offence itself."
The conclusion which their Honours reached as to the effect of s. 8 may well have been right even if they were wrong in thinking that robbery with personal violence is a different offence from robbery. When persons form a common intention to rob with personal violence, and the other conditions of s. 8 are satisfied, the natural effect of the words of the section would appear to be that the participants in the common purpose are deemed to have committed the offence - robbery - with the circumstances of aggravation which it was part of common purpose to bring about: in other words, they are deemed to have committed robbery with personal violence. Neither the words of s. 2 of the Criminal Code, nor those of the definition of "circumstance of aggravation" in s. 1, appear to me to support the view that an offence committed with circumstances of aggravation is necessarily a different offence from the offence without those circumstances, although s. 575 contemplates that an element of an offence committed with circumstances of aggravation may itself constitute a different offence. But whatever view may be taken on these questions, I have concluded, for the reasons already given, that the provisions of Ch. XXX and Ch. XXXI sufficiently indicate that it was not intended that aggravated assault should be a different offence from assault. (at p439)

7. It was further submitted on behalf of the respondent that aggravated assault cannot be an indictable offence, because the requirements of s. 344 that the offender be charged "therewith", and that the circumstances of aggravation be stated in the charge, are applicable only to summary prosecutions. It would indeed be surprising if it had been intended that a misdemeanour, when committed in circumstances of aggravation, declines in gravity and becomes a simple offence which cannot be tried on indictment. The truth however is that a person who has committed an assault in the circumstances of aggravation mentioned in s. 344 has committed a misdemeanour for which he may be tried either summarily under that section or on indictment under s. 335. He has committed an indictable offence. If he is charged on indictment, the provisions of s. 564 require any circumstance of aggravation which is relied on to be stated in the indictment. (at p439)

8. It is true that the decision whether an adult person accused of common assault should be tried summarily or on indictment lies with the magistrate before whom the charge is brought, and that the consent of the accused is not necessary to give the magistrate jurisdiction to proceed summarily: Peiffer v. Mossop; Ex parte Peiffer (1952) St R Qd 137 ; Clark v. Ratnik; Ex parte Ratnik (1956) St R Qd 10 . As I have already indicated, it does not follow from the fact that an accused person has no right to be tried on indictment that the offence is not an indictable offence, because s. 3 recognizes that there may be provisions of the Criminal Code which expressly enable a person charged with an indictable offence to be prosecuted and convicted summarily. The magistrate has not the same discretion to proceed summarily when the offender is a child: see s. 29 of the Children's Services Act, and in the present case a question that will fall for decision when the merits of the appeal come to be considered is whether the provisions of s. 29 were wrongly disregarded. (at p440)

9. We were referred to the provisions of s. 659 of the Criminal Code which are as follows:
"When a person has been summarily convicted of an indictable offence, the conviction is to be deemed a conviction of a simple offence only, and not of an indictable offence."
If these words were given the fullest operation of which they are capable, they would render the provisions of s. 673 entirely nugatory - since every person summarily convicted of an indictable offence would be deemed to have been convicted of a simple offence, there would never be a case in which an appeal could be brought under s. 673. There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s. 659 to be given a construction that will render them harmonious with those of s. 673, if that is possible. If the two sections could not both be given effect, s. 673, being the later enactment, would prevail. On any view, s. 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s. 673 expressly confers. This does not mean that s. 659 itself is deprived of effect; that section has ample room for operation - e.g., in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence. (at p440)

10. For these reasons, a person who has been convicted summarily of aggravated assault under s. 344 of the Criminal Code has a right of appeal to the Court of Criminal Appeal by virtue of ss. 673 and 668D. (at p440)

11. The expression "indictable offence" is not defined in the Children's Services Act. By s. 8 of that Act, "simple offence" is defined to mean -

"A simple offence as defined by "The Justices Acts, 1886 to 1964'."

By s. 4 of the Justices Act, 1886 (Q.), as amended, "simple offence" is defined as follows:
"Any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise."
By the same section, "indictable offence" is defined as follows:
"An offence which may be prosecuted before the Supreme Court . . . or other court having jurisdiction in that behalf, by indictment in the name of the Attorney-General or other authorized officer."
It appears from these definitions that an offence, such as assault, may be both a simple offence and an indictable offence for the purposes of the Justices Act. However, these definitions do not in my opinion throw any light on the meaning of s. 29 (7) (c) of the Children's Services Act, which does not include the expression "simple offence". An offence which is an indictable offence under the provisions of the Criminal Code is in my opinion an indictable offence within s. 29 (7) (c). Moreover, if there is any inconsistency between s. 659 of the Criminal Code and s. 29 (7) (c) of the Children's Services Act, the latter provision, which is both the later and more specific enactment, must prevail. Accordingly, a person convicted of aggravated assault before a Children's Court has a right of appeal to the Court of Criminal Appeal by virtue of the combined effect of s. 29 (7) (c) of the Children's Services Act and s. 668D of the Criminal Code. (at p441)

12. It remains to mention the decision of the Court of Criminal Appeal of Queensland in Reg. v. Rankin Unreported; 28th February 1978. . In that case it was held that persons convicted summarily of offences against ss. 445 and 447 of the Criminal Code had no right of appeal under s. 673. Sections 445 and 447 themselves in form appear to create new offences, namely unlawfully using cattle and illegal branding. Those new offences appear to be simple offences, notwithstanding that by s. 450 a person charged with either of them may, if the magistrate considers it appropriate, be committed for trial on an indictable offence; presumably the offender, if committed, would be tried for a different offence, e.g., stealing. It is unnecessary to express any final view on those questions, but it is apparent that the scheme of Ch. XLIV, in which ss. 445 and 447 appear, is very different from that of Ch. XXX and Ch. XXXI, and that the result at which I have arrived in the present case is not necessarily inconsistent with the decision in Reg. v. Rankin. (at p441)

13. The Court of Criminal Appeal was in error in holding in the present case that it lacked jurisdiction to entertain the appeal. I would grant special leave to appeal, would allow the appeal and would remit the matter to the Court of Criminal Appeal to enable the appeal to that Court to be heard. (at p442)

STEPHEN J. For the reasons stated by Gibbs J. I would grant special leave to appeal, allow the appeal and remit the matter to the Court of Criminal Appeal so that the appeal to that Court may now be heard. (at p442)

MASON J. I am in agreement with the reasons for judgment which have been prepared by Gibbs J. (at p442)

2. I would grant special leave to appeal, allow the appeal and remit the matter to the Court of Criminal Appeal to enable the appeal to that Court to be heard. (at p442)

AICKIN J. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs and am in complete agreement with them. I therefore agree that special leave should be granted, the appeal allowed and the matter remitted to the Court of Criminal Appeal for hearing. (at p442)

ORDER

Application for special leave to appeal granted.

Appeal allowed and order of the Queensland Court of Criminal Appeal set aside. Order that the matter be remitted to that Court to enable the appeal to that Court to be heard.