PM v The Queen [2007] HCATrans 144 (24 April 2007)

Last Updated: 2 May 2007

[2007] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S351 of 2006

B e t w e e n -

PM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2007, AT 9.33 AM

Copyright in the High Court of Australia

MR R.F. SUTHERLAND, SC: If your Honours please, I appear with my learned friend, MR G.K. WALSH, for the applicant. (instructed by Fox O’Brien)

MR L.M.B. LAMPRATI, SC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, the application brought in this matter relates to a matter of statutory construction which has very real practical effects in relation to the prosecution of children.

GLEESON CJ: Is the central issue whether or not, if somebody has been charged with something that is not a serious indictable children’s offence it has to go to the Children’s Court first?

MR SUTHERLAND: That is so, your Honour.

GLEESON CJ: Rape is not a serious indictable children’s offence?

MR SUTHERLAND: Your Honour, the offences which are categorised, pursuant to the Crimes Act in relation to section 61J, embrace what are now termed “aggravated sexual assault” and aggravated sexual assault may be prosecuted in circumstances where there are “circumstances of aggravation” which are itemised by the legislature.

GLEESON CJ: And then that is bodily harm relevantly here?

MR SUTHERLAND: They include maliciously inflicting actual bodily harm, threatening to do so, an assault in the company of other persons.

GLEESON CJ: Mr Sutherland, is there an age at which you cease to be amenable to the jurisdiction of the Children’s Court?

MR SUTHERLAND: Yes, your Honour, 21.

GLEESON CJ: How old is your client?

MR SUTHERLAND: Now, he is 19 – just turned 19, as I understand it. There has been some considerable delay. He was 16 years of age when the offence occurred, and there was an important criterion at play, your Honour, that the legislature clearly mandates a procedure in circumstances where the only circumstance of aggravation is the age of the victim. So putting that into practical effect, where there is an allegation of unlawful sexual assault
between two “children” within the legislative definition of that term, it must, if there is no other circumstance of aggravation alleged, be dealt with summarily.

GLEESON CJ: What if he turns 21 before it is dealt with?

MR SUTHERLAND: That would then lead to a result, as I would perceive it, your Honour, where either the – it would depend what had happened, your Honour. It would depend if he is charged – if he is charged before the Children’s Court, one would imagine then it would proceed by way of a committal and the Children’s Court magistrate would determine - - -

GLEESON CJ: I am trying to work out what will happen if your client turns 21 before this matter ever actually comes on for hearing?

MR SUTHERLAND: Your Honour, I do not think that this Court has taken two years to determine matters of this kind. He is 19 and the matter was listed for mention in September of last year back in the Children’s Court. One would expect, your Honours, that it would be back in the Children’s Court forthwith.

GLEESON CJ: We might be assisted to hear from Mr Lamprati.

MR SUTHERLAND: May it please, your Honour.

GLEESON CJ: Yes, Mr Lamprati.

MR LAMPRATI: May it please, your Honours.

GLEESON CJ: We have a division, two and two, between the four judges who have considered this matter so far, and two of them take the view that in relation to what is said not to be a serious children’s indictable offence, that is, sexual assault without actual bodily harm, it has to go to the Children’s Court first. That is the point at issue, is it not?

MR LAMPRATI: In essence, yes, but the point made would really turn on its head settled procedures over decades. For example, as Justice Latham pointed out, implicit in this approach is that at trial or at District Court, the Crown could not take a plea to a lesser charge. As Justice Latham pointed out, if the non-serious indictable offence has to go, has to be committed from the Local Court to the District Court, the District Court has no jurisdiction to deal with it, which is effectively what Judge McGuire decided. He had no jurisdiction so he sent it back to the Local Court. Now, that simply cannot be right, your Honour. It is done every day. Pleas are taken to lesser charges. Crown Prosecutor looks at the brief, comes to the view that the charge that was originally placed before the magistrate is not the appropriate charge and charges another one.

As your Honour pointed out in one of your Honour’s decision, as Chief Justice in New South Wales – Hunt, I think was the decision – sometimes the charge has actually been laid by a police officer. It is the vehicle, true, that whereby it goes to the Children’s Court, but if this point is right, then the District Court has no jurisdiction to take a plea to a lesser charge. You would have to send the thing back to the District Court to have it committed from there. That simply cannot be right.

GLEESON CJ: Back to the District Court?

MR LAMPRATI: Sorry, to the Local Court, your Honour, yes – Children’s Court, more correctly – to have it dealt with. That simply cannot be right.

GLEESON CJ: This was the view that Justice Basten took in the Court of Appeal?

MR LAMPRATI: It appears he took that view, your Honour, but in my submission, the section simply does not warrant that. Section 31, which is a bone of contention, says:

(1) If a person is charged before the Children’s Court with an offence . . . other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily.

If a Crown prosecutor at trial negotiates a plea with the defence for a lesser charge, how is that person charged before the Children’s Court? Manifestly, he is not.

GLEESON CJ: This is a case in which somebody is under the age of 18 at the time he allegedly commits the offence, and before the age of 21 he comes before a District Court judge and pleads guilty to a lesser offence, being a non-serious indictable offence?

MR LAMPRATI: Yes.

GLEESON CJ: On the theory espoused by Judge McGuire and Justice Basten, you say the consequence of that would be that the District Court cannot deal with the lesser offence?

MR LAMPRATI: Yes, because it has been said there is no jurisdiction, and that in fact is what her Honour Justice Latham said with Justice Whealy agreeing, and I assert from time immemorial that is being done every day in the District Court. I will give your Honour the reference.

GLEESON CJ: Yes, please. I just want to have a look at section 31. Your argument is that section 31, which mandates that:

the proceedings shall be dealt with summarily -

only applies:

If a person is charged before the Children’s Court –

and it is up to the prosecuting authorities to decide whether the person will be charged before the Children’s Court, or what?

MR LAMPRATI: In the case of the course that was followed here, your Honour, he was charged before the Children’s Court. The charge was withdrawn, then the prosecutor on arraignment took the view that the charge a non-serious indictable offence was an appropriate charge and put that count on the indictment. Now, there is nothing wrong in that, absent mala fides and the body of law relating to stays and so on, that would apply – that could apply in that situation if the Crown, for example, used that sort of procedure to circumvent section 31, but there is no suggestion of that here. As Justice Latham pointed out – it is paragraph 106 of her Honour’s judgment, page 42 of the application book, your Honour, the bottom of the page.

GLEESON CJ: Yes.

MR LAMPRATI: That is the point I am making.

GLEESON CJ: You have another argument, as I understand it, in relation to the fragmentation of proceedings?

MR LAMPRATI: Yes.

GLEESON CJ: A possible point of view is that these proceedings have been comprehensively fragmented already, having regard to the history?

MR LAMPRATI: Yes, using “fragmented” in a neutral sense, yes. Your Honour, that is commonplace for charges to be changed on review by a prosecutor. Without any suggestion of unfairness or seeking to procedurally wrong-foot anybody, for example, that is not suggested here either.

GLEESON CJ: How did Justice Basten deal with the point made in paragraph 106 of Justice Latham’s reasons?

MR LAMPRATI: I am not sure that his Honour directly addressed it.

HEYDON J: He did on page 26, paragraph 39.

GLEESON CJ: He said this was “consequentialist rhetoric”.

MR LAMPRATI: It is a lot more than that, your Honour. It has profound, I would suggest, ramifications for proceedings in the District Court. I mean, daily pleas are negotiated. Many of those are concerning young people. If this means that you have to send things back to the Children’s Court which is, in effect, as I understand it, what is required, or you simply are in the position where you cannot deal with it, you cannot take a plea, for example, to a lesser charge, it has very serious ramifications to the point where it simply cannot have been intended by the legislature.

GLEESON CJ: You may be right.

MR LAMPRATI: Perhaps I am indulging in rhetoric.

GLEESON CJ: You may be right, but you seem to be persuading us it is a very important point.

MR LAMPRATI: I was conscious of that as I was saying it, your Honour, but not an important point, a point so unthinkable that it simply could not have been contemplated by the legislature, your Honour. As Justice Latham pointed out, there is nothing in the legislation of the changes that brought these procedures into place to suggest that this was the intention and nothing in the explanatory memoranda. Indeed, the whole thing seems to have exploded like a bombshell.

They pleaded to this indictment. It was indeed after - as I understand it – the girl’s evidence had been given by recording and thinking about it overnight that it was raised in the middle of the trial by advocate for the defence in response, ironically, from a question by a juror: “This child is a juvenile, what is he doing in the District Court?” Then people started – well, the tune changed and in the morning we faced this application, and here we are now.

Your Honours, I appreciate what your Honour is saying about the importance of it, but it really is, in my submission, quite a bizarre turn of events and we submit the majority is plainly right, and that this is not a matter calling for special leave.

GLEESON CJ: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honour, the only thing that is bizarre, if I may say with the greatest of respect to her Honour, is that Justice Latham concluded – could I just take your Honour to tab 8 in the white folder where the Criminal Procedure Act is set out. This is the section of the Criminal Procedure Act pursuant to which the Director is empowered to present an indictment, and relevantly, subsection (3) reads - albeit with the wrong word in part:

This section does not apply to offences that is –

Presumably that should read “that are” –

required to be dealt with summarily.

So that one needs to overcome that prohibition in order to permit what happened in this case to proceed. Her Honour had to find that the words “is required to be dealt with summarily” were different, and can I take your Honours back to tab 6, and section 31 of Children (Criminal Proceedings) Act. Subsection (1):

If a person is charged before the Children’s Court with an offence . . . other than a serious children’s indictment offence, the proceedings for the offence shall be dealt with summarily.

Now, however one wants to dress it up, what her Honour found was that the words “shall be dealt with summarily” did not mean “required to be dealt with summarily”, and she did so through, we respectfully respect, a tortuous and tortured process of logic which was subject to – may I be bold enough to describe it as trenchant criticism, but we would submit well-founded criticism by Justice Basten, because if one concludes that “shall be dealt with summarily” must have the same meaning as “is required to be dealt with summarily” as a matter of statutory construction, then Justice Basten is correct and the majority is wrong.

So, however one wants to approach it emotively in talking about the practical effects in the District Court, the position is simply this, your Honours. There is a special protective legislative regime in relation to children. They are to be dealt with in a different way than adults. This young man, albeit it there has been an effluxion of time, was deprived of the process which was mandated by the Children (Criminal Proceedings) Act because of a combination of circumstances in which the matter went to the District Court for a different class of offence, that is, one which was defined to be a serious children’s indictable offence, but once it got there, a prosecutor looking at it presumably thought that we cannot prove this, so let us just run on a children’s indictable offence.

If the ramifications of that are that the matter should be remitted to a Children’s Court to be dealt with within that regime then so be it. That hardly creates the sort of problems that the learned Crown – Mr Lamprati, points out to your Honours. There are situations – for example, let us imagine that a child was charged with murder, and it gets to the Supreme Court and a Crown Prosecutor looks at it and says “We will never get up on this. The best we are going to do is a common assault”. Is it seriously suggested that there would be an ex officio indictment for common assault?

His Honour Justice Basten analyses that and says, no, it is ridiculous. That would not happen. It will be sent to the Children’s Court to be dealt with as a summary matter which is all that it could ever be. So that to look at the shades of grey between those extremes merely tests the principle, and we respectfully submit that what happened here is a matter which has serious ramifications.

It highlights the apparent conflict, according to Justice Latham, between the intention of the Children (Criminal Proceedings) Act and the Criminal Procedure Act which relates to adults, and her Honour resolves that conflict in favour of the Director having a power of his own motion to bring the proceedings in an adult court, whereas Justice Basten says that is a tortuous logic. You cannot reconcile the conclusion in the manner in which Justice Latham has done, and he sets out in very stark terms what we submit is compelling logic, and at the end of the day what that highlights is that this is a matter, firstly, of substantial importance. It is a matter of widespread application to any child falling within the gaps in the way that our client, in one sense, has appeared to do. It is a matter which may well have application generally in the criminal law, and that for those reasons, both on the merits of the particular matter and because of the criteria relating to the general application of the case, it is a proper vehicle for a grant of special leave.

GLEESON CJ: It is ready to go now, is it?

MR SUTHERLAND: Yes, your Honours.

GLEESON CJ: So there is no reason why there should be any delay in actually hearing the appeal?

MR SUTHERLAND: No, provided Justice Johnson lets me away from the jury for five minutes, or somebody else does it, of course, yes, your Honours.

GLEESON CJ: We are not going to be interested in considerations about the convenience of counsel, Mr Sutherland.

MR SUTHERLAND: Of course not, your Honour. I was being facetious and I apologise.

GLEESON CJ: Yes. If we were to grant special leave in this matter it would quite likely come on for hearing in the June sittings of the Court.

MR SUTHERLAND: Yes, your Honour. We fully understand that, and indeed, dare I say, apprehended that that might be so.

GLEESON CJ: Yes, thank you, Mr Sutherland.

MR SUTHERLAND: There is nothing further that I can put on the application, your Honour.

GLEESON CJ: In this matter, there will be a grant of special leave to appeal. We will adjourn to reconstitute.

AT 9.53 AM THE MATTER WAS CONCLUDED