Cowan v The Queen A48/1994 [1995] HCATrans 87 (30 March 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A48 of 1994

B e t w e e n -

RUSSELL STEPHEN COWAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J

DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 30 MARCH 1995, AT 10.04 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT: May it please the Court, I appear with my learned friend, MR H.I.P. PATSOURIS, for the applicant. (instructed by Patsouris & Associates)

MR J.J. DOYLE, QC, Solicitor-General for the State of South Australia: If the Court please, I appear with my learned friend, MS W.J. ABRAHAM , for the respondent. (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN J: Mr Abbott.

MR ABBOTT: This application for special leave, if the Court pleases, raises fairly and squarely what procedures must be followed and what must be done by a court of summary jurisdiction and what rights must be accorded to a defendant before a court of summary jurisdiction acquires jurisdiction to hear and determine summarily minor indictable offences that would otherwise be dealt with by the procedure of trial by jury. We say the effect of the Full Court's judgment is to now permit a new procedure which is contrary to the Act and to the rules. The jurisdiction is of a Magistrates Court to deal with minor indictable offences in the same way as it deals with summary offences and, therefore, to proceed to hear and determine such minor indictable offences summarily is derived exclusively from section 103.

I take the Court to section 103 of the Summary Procedure Act, part of which is set out at page 37 of the application book, but I will need to refer to the section in its entirety. But in particular, section 103(2), which deals with the procedure in a Magistrates Court where an information charging an indictable offence has been filed, and in subsection (2), where that offence is in fact a minor indictable offence, it is our submission that subsection (2) prescribes the way in which the court of summary jurisdiction acquires jurisdiction to deal with that matter summarily. And the precondition to the acquisition of jurisdiction is the failure of an accused to elect "in accordance with the rules, for trial in a superior court", to use the words in of section 103(3.

So that, in our submission, means if he does not elect, then the Magistrates Court acquires jurisdiction to deal with a minor indictable offence in the same way as a summary offence. In turn, the essential precondition - - -

BRENNAN J: And indeed would be the court with exclusive jurisdiction?

MR ABBOTT: In that sense it will be the court with exclusive jurisdiction. In turn, the essential precondition to a defendant not electing for trial in a superior court - and thereby granting the summary court jurisdiction - is the conditions of section 103(2). These preconditions are, in our submission, firstly the provision to him of a copy of the information and, secondly, the provision to him of the appropriate form for electing for trial. I point out - - -

BRENNAN J: What if those conditions are not satisfied?

MR ABBOTT: It is our submission if those conditions are not satisfied that the court of summary jurisdiction does not acquire jurisdiction.

BRENNAN J: What jurisdiction is there then to hear and determine - - -

MR ABBOTT: The matter then proceeds as a preliminary hearing and ending, if a case is made out, in committal for trial.

BRENNAN J: Under what power?

MR ABBOTT: Under the power set out in this division of section 104 where it talks about:

a charge of an indictable offence is to proceed to a preliminary examination -

In other words, we say that a failure to strictly comply with the sections of the Act which would give this unusual jurisdiction to the Magistrates Court to deal with minor indictable offences summarily, if not followed, thereafter leads to the matter being dealt with as a preliminary examination and to trial by jury.

BRENNAN J: On whom is the duty in 103(2) cast?

MR ABBOTT: The court of summary jurisdiction, and if that be doubted I refer the Court to section 103(1) because section 103(1) assumes that the defendant has personally appeared. It talks of an information being filed and the first position being when "the defendant is in custody". If the defendant is not in custody either he is brought to the court by warrant or by summons. When he is in court, appearing either as a result of warrant or summons and charged with an information alleging a minor indictable offence, subsection (2) of section 103 requires that he be provided with a copy of the information and the appropriate form for electing for trial.

It is our submission that the failure to comply strictly with section 103(2) either results in no jurisdiction for a magistrate to deal with a minor indictable offence in a summary way or results in such a defect that the fundamental right to choose for trial by jury has been improperly cut down.

BRENNAN J: When did the accused first appear in person here?

MR ABBOTT: Some substantial time afterwards. The application book at page 36 refers, in the second paragraph, to the first appearance personally which was about a year later. I must inform the Court that the information, as you can see from the beginning of page 36 of the judgment of the Chief Justice, the information was sworn on 13 July and on 14 July it says:

Both defendants appeared before the Court.....and were represented by counsel. They were remanded on bail to appear on 11th August.

As I understand it, they either appeared on 14 July or on 21 March, but there were occasions on which their non-attendance was excused. In any event, If the Court pleases, it is our submission that the failure to strictly comply with the procedures means that the court did not have jurisdiction to go on with the hearing. This is the basis on which Justice Millhouse arrived at his dissenting decision, and that is set out at the application book page 55 where he says, at line 10:

Because the procedures were not strictly complied with, the learned special magistrate did not have jurisdiction to go on with the hearing. He could not cure the deficiencies by the exercise of his discretion pursuant to Rules 5.01 or 40.01. It matters not that the appellant was himself in default in notifying his election. The whole thing was a nullity.

His Honour then, at line 23, said:

It was not even substantial compliance - the endorsements on the two forms were significantly different, not to the same effect.

In our submission, both views, either the jurisdictional view or fundamental defect view, are supported by authority but either line of authority will produce the same result.

BRENNAN J: Why does not one construe subsection (3) in the light of rule 40 as simply being a requirement of conformity with the rules, including the dispensing power in the rules?

MR ABBOTT: Because there has to be a failure to elect in accordance with the rules and the rules in particular, rule 21 which deals with election, require strict compliance and I refer your Honour to - - -

BRENNAN J: Subject to rule 40.

MR ABBOTT: Subject to rule 40 in one sense, but if one looks at rule 21.02, which is the crucial rule, that, in our submission, is not a rule which is subject to rule 40 but which is a rule which mirrors section 103(1) because the wording of section 103(1) refers to the defendant being in custody and rule 21.02 provides:

where the defendant is served with a summons, at the time of service of the summons -

that mirrors section 103(1)(b)(ii).

BRENNAN J: Yes, I appreciate that, but the problem really is whether or not subsection (3) of section 103 has or has not been satisfied in this case. If the situation is that there was no election in accordance with the rules, then the section is indicative of the jurisdiction and the way in which the matter should be disposed of. Your argument, as I understand it, is that the words "in accordance with the rules" in subsection (3) mean "unless for some reason the rules were not properly complied with under subsection (2)".

MR ABBOTT: And that includes the provision of the appropriate form.

BRENNAN J: My question to you is why is it that one does not construe subsection(3), and in particular the words "in accordance with the rules", in accordance with their ordinary meaning; in other words, compliance within time. And if it is said that is a Draconian reading, one understands that rules of court always do - and in this case - contain a provision such as rule 40.

MR ABBOTT: The answer that I give to your Honour is that the rules provide not merely for time observances but also for, in our submission, personal appearance.

BRENNAN J: I appreciate that, but your whole problem is to link subsection (1) and subsection (2) with the meaning of the words "in accordance with the rules" in subsection (3).

MR ABBOTT: And to show the Court that what happened was not even in substantial accordance with the rules, because when this defendant first appeared before the court pursuant to section 103(1), the appropriate form for electing for trial in a superior court under subsection (2) was not provided pursuant to the section, nor was it provided pursuant to the rules. And notwithstanding rule 40, it just did not happen. We say the case law demonstrates, and the case law referred to in our list of authorities, demonstrates that a failure to strictly comply with provisions such as this either results in no jurisdiction or results in such a defect in the fundamental right to apply for trial by jury. As the High Court said in Tassell v Hayes, the right to elect ought not to be diminished save by language which is reasonably capable of no other construction.

References to a defendant in legislation dealing with the election procedure and processes have invariably been held to mean the defendant personally, and not the defendant by his counsel or solicitor, and in a sense the legislation has been construed as being mandatory and not directory.

In our submission the majority of the Full Court erred, and I take the Court to the application book at page 42. At page 42 his Honour the Chief Justice set out, in essence, his view of the legislation in these terms, at line 15:

Mr Abbott argued that Rule 21.02 requires that the form be served on the defendant personally on the first occasion when the defendant personally appears before the Court.

My argument was not only that but also section 103(1) and section 103(2) and (3) also required that. His Honour said:

I think that, having regard to the purpose of the Rule, that is an unduly strict interpretation of it. Rule 21.02 is not a statutory precondition of jurisdiction such as that considered in Hacking v Keith [1966] VicRp 50; [1966] VR 364. It is a machinery provision designed to implement s103(2) and to furnish a defendant with a ready means of making an election and appropriate information as how it is to be done in accordance with the Rules. I think that where a defendant does not personally attend but appears by counsel or solicitor, that appearance should be treated as the appearance of the defendant for the purpose of the Rule.

I observe that there is no statutory warrant for non-personal attendance. Section 103 is predicated upon personal attendance and it is our submission his Honour fell into error in holding that it was open to counsel or solicitor, in the absence of personal attendance, to in effect effect compliance with the rules. His Honour went on to say:

The defendant is provided with the form for the purpose of the Rule if the form is furnished to his counsel or solicitor.

In our submission, that clearly is at odds with the Act. The Act does allow, in some circumstances, for service or delivery through a legal practitioner in lieu of a defendant but it says so. For example, section 104(1)(b), which deals with the preliminary procedure process, talks of the provision of the documentation not only to the defendant but also to the solicitor for the defendant.

There are other sections which have been construed as obliging the court to physically hand a notice or document to a defendant personally. I refer the Court to - - -

DEANE J: Mr Abbott, was there anything before the courts below to indicate whether your client had in fact been aware of the right to elect?

MR ABBOTT: There was nothing to indicate, other than the fact that he was represented - - -

DEANE J: We know that he was represented and that his solicitor was served with a form, but is there anything to indicate or to suggest that your client was not informed of the existence of the right of election?

MR ABBOTT: There is nothing to indicate that he was not informed, for example, by his solicitor of his right to elect. On the other hand, the form that was provided to the solicitor was the incorrect form.

DEANE J: Yes, I follow that. It would be significant, though, if there was material suggesting that the defendant had never been made aware of the right to elect, but there is nothing on that, is that the position?

MR ABBOTT: There is nothing on that. The section 107(5) of the Summary Procedure Act provides for a procedure:

Where the Court commits a defendant for trial the Court must inform the defendant of his or her obligation to give notice of evidence of alibi that the defendant may desire to adduce at the trial and provide the defendant with a written statement explaining that obligation.

That section has invariably been, as far as I know, universally applied in South Australia to require the court to physically hand what is referred to as the alibi notice personally. So his Honour the Chief Justice, in our submission, erred in holding, at page 44 of the application book, that the words in section 103 and the rules were directory and not mandatory. And he said, at page 44 of the application book, line 3:

Rule 21.02 is designed to assist a defendant by directing that he be provided with the form which he will need to make his election. It thereby implements s103(2). I think that the requirement in s103(2) and Rule 21.02 for the provision of the form to a defendant, is directory in character.

His Honour then went on to deal with why he thought the rule was directory in character but nowhere does he appear to have dealt with the central issue as to why he thought the Act was directory in character. His Honour does appear to have decided that the rules were directory in character because of case flow management and he says this at page 40 of the application book. At line 15, the start of the paragraph, he says:

A further factor was the need to apply modern case management techniques -

and he referred to the need to know -

well in advance of a hearing whether it is to be a contested, perhaps lengthy, summary trial, or a relatively brief preliminary hearing -

In our submission, his Honour failed to consider and had no regard to section 105(4) of the Summary Procedure Act which provides for the withdrawal of the election made at any time prior to the conclusion of the preliminary examination.

BRENNAN J: I think your time has expired, Mr Abbott.

MR ABBOTT: If the Court pleases.

BRENNAN J: We need not trouble you, Mr Solicitor.

In this case, where there is nothing to suggest any substantial miscarriage of justice, the question is merely one of construction of a statutory provision regulating the procedure of the Magistrates Court. That is a question appropriately to be left to the final determination of the Supreme Court of South Australia. For those reasons this application is refused.

MR DOYLE: If the Court pleases, I make application for costs.

BRENNAN J: Do you, in a criminal matter?

MR DOYLE: It is as it were a procedural aspect of it, your Honour, which has come up through the Supreme Court.

BRENNAN J: Yes. We need not trouble you on that, Mr Abbott. The application will be refused, but not with costs.

AT 10.28 AM THE MATTER WAS CONCLUDED