PM v The Queen [2007] HCATrans 295 (14 June 2007)

Last Updated: 19 September 2007

[2007] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S217 of 2007

B e t w e e n -

PM

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 JUNE 2007, AT 10.20 AM

Copyright in the High Court of Australia

MR R.F. SUTHERLAND, SC: May it please your Honours, I appear for the appellant. (instructed by Fox O’Brien Solicitors)

MR L.M.B. LAMPRATI, SC: May it please your Honours, I appear for the respondent with my learned friend, MS N.F. NOMAN. (instructed by Director of Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honour the Chief Justice, when you were Chief Justice of New South Wales, in an appeal by a man called Stanton, which is reported in (1991) 52 A Crim R 164 and at page 168 your Honour the Chief Justice said in the context of that case this, at the end of the second last or penultimate paragraph on page 168:

the Children (Criminal Proceedings) Act is important legislation which establishes distinctive procedures and principles relevant to criminal proceedings against persons whose conduct falls within its purview, and it confers protections and benefits upon such persons which the court should safeguard. In the present case the procedures of that Act have been bypassed.

KIRBY J: That is your text for your sermon today?

MR SUTHERLAND: It is the Chief Justice’s text but I adopt it, Justice Kirby. It is. We respectfully submit that when the Parliament of New South Wales passed specific legislation to deal with criminal proceedings against children, rather than having it dealt with under the umbrella of the Criminal Procedure Act which was in place, it did so for all of those well-known reasons to do with the specific protection of children as an identified class distinguishable and to be distinguished from adults.

In so doing a significant thing happened in relation to a very serious category of offence under the Crimes Act (NSW). I direct your Honours’ attention, if I may, please, to section 61J of the Crimes Act (NSW) which deals with the serious offence under the heading of, “Aggravated sexual assault” of a person having “sexual intercourse with another person without the consent”. The particular section, section 61J, identifies that act, that is an allegation of “sexual intercourse without consent”, including it occurring in “circumstances of aggravation” which are then set out.

The significant feature that the Children (Criminal Proceedings) Act brought about was that it distinguished categorically within those circumstances of aggravation which are set out in subsection (2) and which I do not stand here to read to your Honours but which are there listed and include, as we can see, matters of clear aggravating nature, such as a malicious inflicting of “actual bodily harm”, not simply occasioning it but maliciously inflicting it, threatening to inflicting it. Subsection (c), committing the offence in “company”. I will pass over (d) for the moment. Subsection (e), where a person is “under the authority of the alleged offender” – dealing with all of those multitudinous circumstances of a person in authority. At (f) and (g) where the “victim has a serious physical”, or “intellectual disability”.

The clear distinction that the Children (Criminal Proceedings) Act brought about was to categorise every one of those particulars of aggravation except subsection (d), which I will come back to, as what was classed within the terminology of the Children (Criminal Proceedings) Act as a serious children’s indictable offence. That is a phrase which does not appear in the Criminal Procedure Act in relation to adults. One simply has indictable offences, summary offences, but a category of offence was identified as a serious children’s indictable offence.

What the Children (Criminal Proceedings) Act requires is that an offence so identified, that is a serious children’s indictable offence, must be dealt with according to law, that is, that when a child is charged, whether they are arrested pursuant to warrant or whether they are brought to court by a court attendance notice the proceedings against them will be conducted as a committal proceeding in the well-known and customary fashion pursuant to the requirements of the Criminal Procedure Act, just as if the person charged were an adult, and at the end of the prosecution case the Children’s Magistrate will make the same sort of decision that he or she would make if they were sitting in the local court, “Is there a prima facie case?” and go through the tests prescribed to see whether or not the person ought to stand trial.

However, the Children (Criminal Proceedings) Act – and perhaps I should take your Honours in terms to the relevant section. If I could ask your Honours to go to the Children (Criminal Proceedings) Act. Your Honours will see in the definition section, section 3, firstly, that a “child”, as is notoriously and well known, “means a person who is under the age of 18 years”, relevantly, at the time of the commission of the offence and “serious children’s indictable offence” your Honours will find within that list of definitions:

(c) an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2)(d) of that section) –

of the Crimes Act, relevantly. So that what we end up with is a situation where the Parliament in enacting the Children (Criminal Proceedings) Act 1987 made a specific exception to one of the particulars which otherwise would simply be a circumstance of aggravation under section 61J. The particular that they identified was where the only circumstance of aggravation, excluding assault in company and malicious infliction of bodily harm and so on and so forth, is the fact that the complainant is under age, that in that circumstance the offence is defined completely categorically differently, namely, it is an indictable offence and as such it falls within the prescription of section 31 of the Act setting out the manner in which proceedings should be dealt with for offences other than serious children’s indictable offences. So may I take your Honours’ attention, please, to section 31 of the - - -

HAYNE J: Is that the relevant point at which to start in this Act? Why is not the relevant point to begin in the Act section 8 because 31 is premised upon the person being charged before the Children’s Court and the question at issue arises where an indictment has been filed in the District Court. If there is a point to begin, why is it not section 8?

MR SUTHERLAND: I am content to go to section 8, of course, your Honour.

HAYNE J: But is that not the starting point or is section 31 the starting point?

MR SUTHERLAND: I must say, Justice Hayne, I am not sure that it makes a difference in the end, but if we go to section 8, and I am content to do that, one goes to section 8 and one finds:

Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice.

GLEESON CJ: What do you make of the word “should”?

MR SUTHERLAND: That it permits the arrest of a child. That section was not aimed at ex officio indictments, in my respectful submission. It was aimed at the proposition that in the ordinary course the prosecuting authority should commence it by court attendance notice, but in circumstances where a child may ignore the court attendance notice or simply not turn up or there was some concern about ongoing commission of offences, then in such a circumstance a warrant for arrest may issue and you would arrest the person. So that what it does is - - -

HAYNE J: Wrapped up in that is a notion about criminal proceedings, commencement of criminal proceedings and it gives a purely hortatory reading to “should”, whereas, when you read 8(1) and (2) together, (2) not applying to certain things, I would have thought it might have been open to your side of the argument to say that “should not” might be a modish piece of drafting that really constitutes a limitation, may not be.

MR SUTHERLAND: Your Honour, the aim of it, in my respectful submission, was not with the thought in the New South Wales Parliament that the Director or the Attorney-General might be going around and issuing ex officio indictments against children. The aim was to say – and I am putting this colloquially - while you might go out and arrest adults and there is all the common law aspects of that and various statutory provisions, in relation to children you should get them there with a court attendance notice. However, if the proceedings that you are going after the child for is an allegation of a serious children’s indictable offence, in that case the “should proceed by court attendance notice” will not mandate or compel or impel that process.

So it is really designed, in my respectful submission, to tell police officers or child welfare agencies or the like, “You should not be going out and arresting children. You should in the ordinary course be using a court attendance notice. However, if it is a serious children’s indictable offence then you may proceed by warrant.” In my respectful - - -

GLEESON CJ: There is a decision of the Court of Criminal Appeal – I think it was referred to in a fairly recent decision of this Court – which explains in New South Wales the history of provisions relating to commencement of criminal proceedings. You do not commence criminal proceedings by an indictment, for example.

MR SUTHERLAND: No.

GLEESON CJ: You commence criminal proceedings by either arrest without warrant or summons or court attendance notice or whatever.

MR SUTHERLAND: May I say this? If section 8 is the correct starting point in response to Justice Hayne’s inquiry of me, then I would embrace it to the extent that – I would put to the Court that “should” should be read with a fairly compelling imperative. It certainly ought not to be read as embracing the commencement of proceedings by an ex officio indictment. But whether one starts there or comes at it by commencing with section 31 - - -

GLEESON CJ: Where do we find court attendance notices? That is Division 1 of Part 2 of Chapter 4 of the Criminal Procedure Act, according to the definition.

MR SUTHERLAND: Yes, it is the signed form of notice as is prescribed under the Criminal Procedure Act, but I do not think anything turns on that fact. It simply picks up a process in the procedure which was in place in 1986 in the Criminal Procedure Act and replaced the old issuing of an information and summons that your Honour might have been familiar with in bygone years.

GLEESON CJ: Well, apparently – I am only looking at the index to the Criminal Procedure Act, but court attendance notices do not relate only to children.

MR SUTHERLAND: No, they do not. No, they were in place, Chief Justice, in 1986. They were introduced effectively to provide a different administrative process – I should not call it administrative, but judicial process of getting somebody to attend court in lieu of the old-fashioned manner of laying an information and issuing a summons so that one would come before a court pre-1986 either by information and summons or by warrant in the ordinary course. I mean, obviously there were circumstances where somebody might be arrested without warrant, but you would then be charged before a justice.

What happened in 1986 when the Criminal Procedure Act was brought in was that a process of issuing a court attendance notice was created and when the Children (Criminal Proceedings) Act was passed the following year in 1987, it adopted that process, that is, the issuing of a document from the registry of a court that would be served on a defendant requiring them to come to court on a nominated date. Of course, the other way of getting somebody there is to go out and arrest them.

GLEESON CJ: So whether you are applying it to children or to adults – and I have to say, I do not think I have ever had occasion to look at this before – the court attendance notice is an alternative method of commencing criminal proceedings to arrest?

MR SUTHERLAND: Yes, your Honour, and when one goes - - -

HAYNE J: Sorry, just before we leave these provisions of the Criminal Procedure Act - I am not at all familiar with them – section 172 seems to be – is it the important provision or is it only an important provision? Do I begin by looking at 172 because if I do I look back at what is a court and I find that, I think, firstly in section 171 then section 170? I just want to follow this legislative chain through it if I have to understand what a court attendance notice is, and I think I probably do, do I not?

MR SUTHERLAND: Yes. It does not loom, I must say, Justice Hayne, as the prominent important point, as I perceive the particular point at issue, but certainly, in my respectful submission, the significant difference is that you can be brought to court, as I have just said to the Chief Justice, as one used to be able to be brought by summons. One is brought to court either by a notice, if you like, whether it is a summons or whether it is a court attendance notice, but a command, a physical subpoena, if one likes, which is the document issued with the authority of the court through the registry which requires a person to attend on a certain day. If they do not attend then various ramifications may flow. Perhaps there would be a warrant issued. It would depend whether service was proved and all those typical things which arise in relation to compelling or requiring somebody to come to a court. It is simply a process - - -

KIRBY J: What was the reason for abolishing 800 years of history of summonses going over to a notice to attend court? Do you know?

MR SUTHERLAND: I can think of a number of facetious responses, but - - -

KIRBY J: I thought it was a little too shocking to people to get a summons.

MR SUTHERLAND: Yes. I can think of a number of facetious responses, but none that are appropriate.

GLEESON CJ: Well, we see an example of a court attendance notice on page 2 of the appeal book.

MR SUTHERLAND: Yes.

GLEESON CJ: Which I have to say is the first court attendance notice I am conscious of ever having seen.

MR SUTHERLAND: I do not think your Honour has any fears of worrying about what the name is that is blacked out. It was blacked out for a reason.

GLEESON CJ: The proceedings against me have usually been commenced by arrest.

MR SUTHERLAND: Your Honour would see from the physical document, “You are required to attend” in this particular case “the SUTHERLAND CHILDRENS Court at” such and such a date and at such and such a time. There are details of the offence and reference to what is called the “Law Part Code” number, all of which permits one to identify just what it is that one is being charged with, and a person in receipt of such a notice would, in the ordinary course, turn up at court and be charged and the criminal proceedings have of course thereby been commenced.

The particular point that I hope I am not labouring too long is that it is in contradistinction to the process of arrest and it is in that context that section 8, in my respectful submission, ought to be read, so that section 8 does not say, “Thou shalt not arrest a child”. What is says is you should commence proceedings by a court attendance notice.

HAYNE J: It is an unusual form of legislation to say, “Better you do this. We do not tell you you have to, but better you do it”. I am sorry to be tedious and slow about this, or even more so than normal, but when you go to the Children (Criminal Proceedings) Act, court attendance notice is a notice issued under Division 1 of Part 2 of Chapter 4 - - -

MR SUTHERLAND: Of the Criminal Procedure Act, yes.

HAYNE J: Of the Procedure Act. That seems to be under section 172 and its form is prescribed by 175.

MR SUTHERLAND: Yes.

HAYNE J: But what I find odd is, when I go to the kind of courts in which you can start these procedures, I do not find children’s courts in 170. Contrast that with Chapter 3 of the same Act, which is not the cross-reference made in the Children (Criminal Proceedings) Act, Chapter 3 of the same Act, which is indictable procedure, speaks of court attendance notices but, I think, also includes requiring you to attend before a Children’s Court magistrate. So at the moment I am left with a gap in my understanding of the way in which the legislative provisions all slot together.

MR SUTHERLAND: The short submission that I make in relation to that, Justice Hayne, is that the Children (Criminal Proceedings) Act was enacted after the Criminal Procedure Act and it brought in, as I say, specific requirements for children beyond anything that is in the Criminal Procedure Act. If that is a convenient point, may I take your Honours then to section 31.

GLEESON CJ: Just before you do, what offences, if any, are prescribed by regulation within section 8(2)(a)(iii) of the Children (Criminal Proceedings) Act?

MR SUTHERLAND: I regret I cannot answer that on my feet, Chief Justice. Your Honour, the Crown may be able to assist your Honour by the time they get to their feet, but I do not think any of the three of us are able to at the moment.

GLEESON CJ: Thank you.

MR SUTHERLAND: Your Honours, the particular significance, as I say, is that an offence may be commenced other than by a court attendance notice if it is a serious children’s indictable offence. So just pausing there, the original allegation against PM could on one view have been commenced by him being arrested. In fact, it would not have been because the initial offence was indictable. I will withdraw that. I will come back to it. Your Honour, the next point that I wanted to take your Honours to was section 31, if it is convenient, Justice Hayne, to go to that now. Section 31 in its terms is:

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

The first point that one needs to confront in relation to that particular subsection is what is meant by “if”. Justice Basten in the court below formed the conclusion that “if” ought to be read so as to be construed to really mean “when” and we would urge that construction upon the Court. I have jumped over section 28 and perhaps I should have touched on that on the way. Can I just take your Honours back to that for a moment. Section 28(1):

The Children’s Court has jurisdiction to hear and determine:

(a) proceedings in respect of any offence (whether indictable or otherwise) other than a serious children’s indictable offence –

Now, that particular phrase “serious children’s indictable offence”, which repeats throughout the legislation and it repeats throughout my submissions to your Honours – the typist complained that she did not want to hear that phrase ever again, I think – but a serious children’s indictable offence, that is the significant point and that is why I took your Honours to 61J. Section 61J throughout is a serious children’s indictable offence unless the only circumstance of aggravation is subsection (d), the age of the complainant. So that where the Children’s Court is given jurisdiction under section 28 it cannot deal with a serious children’s indictable offence other than by way of committal proceedings. Your Honours see that in 28.

GLEESON CJ: But there is an anterior question. We are here to decide whether or not the jurisdiction of the Children’s Court is exclusive. Is there nothing in the legislation that deals expressly with that question?

MR SUTHERLAND: Not in terms, your Honour. What it does is to – and I will come to the terms of section 31 shortly, but our entire submission is that what this legislation does is to mandate – to use to that as a verb – a procedure for offences other than that special category that has been created for this legislation of a serious children’s indictable offence.

GLEESON CJ: I thought it was part of your argument – I may be wrong – that even serious children’s indictable offences are to be dealt with in the first instance by the Children’s Court but by way of committal.

MR SUTHERLAND: Your Honour, I do not know that I necessarily embrace that.

GLEESON CJ: No, but I think we may need to make up our minds about that.

MR SUTHERLAND: Your Honours may do.

GLEESON CJ: So if I could just ask you to confine attention at the moment to murder. If somebody under the age of 18 is charged with murder, which I presume is a serious children’s indictable offence - - -

MR SUTHERLAND: Yes, your Honour.

GLEESON CJ: - - - and an example of such a case is the case of Morgan which was referred to in the reasons here, in your submission, do the prosecuting authorities have a discretion as to whether the committal proceedings in respect of that murder charge are to be conducted in the Children’s Court or in an ordinary Magistrates Court, a Local Court, or, in your submission, is it mandatory that the committal stage of the proceedings for murder be conducted in the Children’s Court?

MR SUTHERLAND: I must say, Chief Justice, I have not turned my mind specifically to that question because I am advocating in relation to an indictable offence. Your Honour, – I have had one of those black holes into which one’s recollection disappears - section 7 provides that:

Except as provided by this Act, a Local Court may not hear and determine criminal proceedings that the Children’s Court has jurisdiction to hear and determine.

GLEESON CJ: All right. So what happens in the case of murder?

MR SUTHERLAND: Your Honour, in the ordinary course, one would imagine it would be dealt with – whether it is arrest or warrant or whether it has been a court attendance notice one would find it unusual if the allegation was murder there would be a court attendance notice. One would presume that the child would be arrested, interviewed pursuant to those protective legislative requirements in the presence of an adult or a parent and so on and so forth and not as if he or she were an adult, and then proceeded with by way of committal only in a Children’s Court.

GLEESON CJ: That is mandatory?

MR SUTHERLAND: I think it is, your Honour. Just on a perusal of that I must say, unless there is some section that the Crown can assist in relation to it does appear to me that it is mandatory. Your Honour, I would not want to be bound to that position. It may be that it is not inconsistent with what I am seeking to advocate.

GLEESON CJ: I am not suggesting you are wrong about that, but it seems rather difficult to understand the legislative scheme without having a view about that.

MR SUTHERLAND: Your Honour, I am not sure that I was seeking to avoid it but - - -

CRENNAN J: You are relying on 28(1)(b) in relation to that submission, after looking at section 7?

MR SUTHERLAND: After 7, yes, Justice Crennan. Jurisdiction is given to a Children’s Court to deal with committal proceedings and, of course, as your Honour may be aware, there are all sorts of different procedural aspects to the way the Children’s Court functions and people remain seated, gentle aspects, if I can put it in that neutral fashion for the way in which one proceeds. I must say it certainly is my submission that it is mandatory, but if there is some reason why a serious allegation such as murder might be transported to the Local Court, and it appears to me that it cannot be, but if it could be that does not necessarily prove fatal to the submission that I want to develop. I think the short answer to your Honour the Chief Justice’s inquiry is that I think it is mandatory.

Your Honour, the jurisdiction, before I leave section 28, is defined by reference to age in subsections (c) and (d) and the two requirements are, firstly, that the person:

(c) who was a child when the offence was committed –

that is, that they were under 18, and then there is a window to permit the criminal process to occur, that they must remain:

under the age of 21 years when charged before the Children’s Court with the offence.

The significance of that, when one goes back to a case such as Stanton, which your Honour did, and I referred to earlier, as Chief Justice of New South Wales, was that when Stanton came to trial, he was 22 years of age and that was a significant point before your Honours in the New South Wales Court of Criminal Appeal in Stanton, just as there were other significant aspects. Some of the offences occurred when he was under 18 and one certainly occurred when he was over 18.

Could I just take one moment to correct a typographical – in fact, I do not think I can blame the typist, I think it is a dictation error. In my written submissions to your Honour at page 11 I was seeking to paraphrase the factual background in Stanton, which I have referred to the page before, and at the top of page 11 I said: “Committal proceedings in respect of all counts had taken place together and by the time he was called for trial he was 22 years of age. It was by that time too late for him to be dealt with within the jurisdiction of the Children’s Court in respect of the offences which had occurred when he was – it says “over,” that should read “under” – when he was under 18 years of age. In all events, what I was seeking to just draw your Honours’ joint and several focus upon was the delineation of age in section 28.

We then move to section 31. The relevant section which I have read just a little while ago, of course, is:

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

I urge upon your Honours the construction of “if” that Justice Basten put on it –

with an offence (whether indictable or otherwise) other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily.

Justice Latham in the court below - - -

HAYNE J: Just before you develop that, the offence charged in the indictment filed in the District Court was not a serious children’s indictable offence.

MR SUTHERLAND: The one that was presented before the jury was not.

HAYNE J: That charge was never laid before the Children’s Court, was it, in that form?

MR SUTHERLAND: It was. There might have been some difference in the actual terminology, but no it was. Could I just go back to the factual background - - -

HAYNE J: But can I show you where this is going so that you deal with it?

MR SUTHERLAND: Yes.

HAYNE J: No matter whether “if” is used in the sense of “when” or in some other sense, how is section 31(1) engaged on your submission in respect of the charge that was laid in the indictment that was opened and ran for a day in the District Court?

MR SUTHERLAND: One of two ways, Justice Hayne. First as a matter of fact, it was laid in the local court. When this young man was first charged, he was charged with the offence under section 61J(2)(d).

HEYDON J: That is page 2 of the appeal book.

MR SUTHERLAND: Yes, thank you, Justice Heydon.

HEYDON J: Then there was another one on page 4 which more or less corresponds with the indictment on page 19.

MR SUTHERLAND: What had happened, if I can just draw those threads together factually, there were two charges laid in the Children’s Court. The first alleged a non-serious children’s indictable offence, that is, an allegation where the only circumstance of aggravation – and I do not say only in any sense other than it being the only one that is relevant for the purpose of this submission – the only circumstance of aggravation was the fact that the complainant was under 16.

Subsequently, a circumstance of aggravation that changed the nature of the charge from a non-serious children’s indictable offence to a “serious children’s indictable offence” was preferred. Because that second charge had been laid and the prosecutor indicated, “That is the charge I want to proceed on”, what took place in the Children’s Court was a committal proceeding as was mandated by section 28(2) in respect of the serious children’s indictable offence.

GLEESON CJ: What happened to bring an end of the charge of the non-serious children’s indictable offence?

MR SUTHERLAND: The prosecutor asked that it be withdrawn and the formal order, I think, was withdrawn, dismissed.

GLEESON CJ: What is the provision or the statutory provision that produces the consequence that that exchange between the prosecution and the magistrate had the consequence in law that the charge in respect of the non-serious children’s indictable offence came to an end?

MR SUTHERLAND: I had intended to apologise for the absence of my learned junior, Mr Walsh, who is stuck in a trial in Sydney and I now very much regret that he is not here because he would be able to remind me immediately. Just pardon me, your Honour, I think I can answer that. Can I take your Honours to section 208 of the Criminal Procedure Act. That section provides, as your Honours will see:

If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.

GLEESON CJ: Presumably, if in section 31 “if” means “when” it is subject to section 208, that is, you issue a court attendance notice, the person comes before the Children’s Court, a charge is laid, is the charge laid in the Children’s Court or before the court attendance notice is issued?

MR SUTHERLAND: I think it is laid in the Children’s Court.

GLEESON CJ: In all events, it is section 208 of the Criminal Procedure Act that in this case brought about the consequence that the charge of the non-serious indictable offence – that in respect of that charge the matter was dismissed and the accused person was discharged.

MR SUTHERLAND: The formal order was words to that effect by the presiding magistrate.

GLEESON CJ: It seems to be common ground that that does not stop you bringing the same charge again at a later stage.

MR SUTHERLAND: I am not sure about that, your Honour, I must say.

GLEESON CJ: There is no plea of autrefois acquit or - - -

MR SUTHERLAND: It seems to me there has been no hearing on the merits, if I can – I do not see that there is a - - -

GLEESON CJ: So nobody has ever suggested in this case that because of what went on in the Children’s Court in relation to the non-serious indictable offence, no further proceedings could thereafter be taken against your client in respect of that offence.

MR SUTHERLAND: That is certainly not my understanding.

GLEESON CJ: Thank you.

MR SUTHERLAND: Your Honour, the CAN, as its acronym is variously referred to, the court attendance notice is, as I understand from the learned Crown, effectively filed in the court after it has been served, to the extent that that makes any difference to the initiation of the process. But if we can just go back, as I was endeavouring to deal with section 31, the critical point of departure between the arguments that we seek to impress upon your Honours and the judgment of Justice Latham as part of the majority in the court below, is that her Honour described what section 31(1) did as creating a presumption in favour of summary disposition.

We respectfully submit that it does no such thing. It is a mandatory provision and it uses clear words identified as mandatory in their imperative in legislative provisions the length and breadth of the land that the words “shall be dealt with summarily” are clear and unambiguous. The significance of interpreting those words is brought into sharp focus when one goes to section 8 of the Criminal Procedure Act which relevantly – if I could just take your Honours through it – sets out the process for the prosecution of indictable offences:

(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.

(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.

Now, just pausing there, section 7 of the DPP Act empowers the Director, but the Criminal Procedure Act in its terms makes provision for the filing of what used to be described, and customarily still are, as ex officio indictments, so that the specific power in section 8(2) to present an indictment whether or not the person has been committed for trial in respect of the offence is set out in the statutory provision there. But subsection (3), albeit with the grammatical error, then says as follows:

(3) This section does not apply to offences that is required to be dealt with summarily.

Ignoring the grammatical error, and reading it arbitrarily as “offences that are” or “an offence that is”, the question that then arises – I leave completely to one side the question of whether the grammar makes the whole thing a nullity, I do not suggest it does - is whether or not the phrase “is required to be dealt with summarily”, how that conforms or fits with section 31.

HAYNE J: That tips you back to section 6(1) of this Act and you tip out of 6(1) into the Children’s Act, but you go from 8(3) of the Criminal Procedure Act back into 6(1), do you not? That is your first port of call.

MR SUTHERLAND: I am sorry, Justice Hayne, I have just lost myself there for a moment.

HAYNE J: Murphy’s law is alive and well. The paper you need is the one you have put aside. Section 6(1)(a) in particular of the Criminal Procedure Act, is it not:

The following offences must be dealt with summarily:

(a) an offence that under this or any other Act is required to be dealt with summarily –

You go from there, you look at 7, you find that 7(1) says those that are “to be dealt with summarily” are to be dealt with by a Local Court. That is then qualified by 7(2). That does not apply, in effect, if there is some other provision, so that it all conforms in a way that tips you, does it not, from 8(3) to 6(1)(a) back, you say, to 31 query as informed by 8.

MR SUTHERLAND: Indeed. Your Honour, I certainly do not disagree with the way it works back through the Act, but the significance really does not change. The phrase that is consistently used is “is required to be dealt with summarily”. So that one finds in 6(1)(a) “is required to be dealt with summarily”. It is the same touchstone of English construction and the point that we unsuccessfully advocated, certainly so far as Justice Latham’s reasoning was concerned, was that “is required to be dealt with summarily” and “shall be dealt with summarily” must relevantly mean the same thing.

GLEESON CJ: The problem – it may not be a problem – that seems to be agitating the prosecuting authorities is what the consequence is in what must be a very common situation where a person is committed for trial for a serious children’s indictable offence and when the matter comes on for hearing, the lawyers for the child and the prosecuting authorities reach an agreement that the child will plead guilty to an offence that is not a serious children’s indictable offence and the prosecution will accept that plea in satisfaction of the indictment. On your argument, if that occurs, the District Court has no jurisdiction to deal with the plea of guilty and the matter goes back to the Children’s Court to be dealt with by a magistrate, is that right?

MR SUTHERLAND: No, no, it may be that there is a two-step process. Can I take your Honour to section 31 in order to hopefully resolve that conundrum. We have just dealt with section 31(1) but if I can take your Honours further to 31(2):

Notwithstanding subsection (1):

(a) if a person is charged before the Children’s Court with an indictable offence (other than an offence that is punishable summarily without the consent –

so let us ignore that for the moment, and –

(b) if the person informs the Children’s Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with –

the relevant provisions of the Criminal Procedure Act. Now, whether or not one can simply sidestep that by pleading guilty in the District Court and thereby imbuing the court with sufficient jurisdiction or whether or not as a matter of practicality the matter would formally need to go back to the Children’s Court consent would be noted and it would be remitted back, as a procedural step.

Of course they could still be dealt with in the District Court, but that then begs the next question as to whether or not the District Court would decide to pass sentence or whether as they are in power they would send it back to the Children’s Court to pass sentence.

GLEESON CJ: But that is what we have to decide, is it not? The problem with which we are confronted would be no different if, contrary to the fact, Mr Walsh had announced that his client intended to plead guilty to the lesser charge. The issue would be exactly the same. The question is, on your construction of the Act what happens then?

MR SUTHERLAND: What would happen is that charge 1, that is the non-serious children’s criminal offence, would be back before the Children’s Court, the child would consent to being dealt with according to law, or the child would say, “No, I want to be sentenced here”. It would very much depend upon the facts. There are many circumstances where the plea might be negotiated in the District Court but the District Court, rather than pass sentence on a child will say, “In the circumstances of this case we send it back to the Children’s Court for sentence because there is a whole different regime of sentencing options”.

So that what could have happened, Chief Justice, is that if Mr Walsh’s instructions were, as we are postulating, on day one he may have said, “We wish to plead guilty” and the presiding judge, Judge McGuire may have said, “Well, in the circumstances, I will send you back to the Children’s Court. I will note the admission, and you can go back to the Children’s Court and you can be sentenced” or, “You can be committed for sentence”, I mean, depending upon the view of the magistrate.

GLEESON CJ: What else could Judge McGuire have done?

MR SUTHERLAND: I think probably only that. I do not think that he would proceed to pass sentence in the circumstances, certainly not on the construction that I read of the legislation. It is not a difficulty of a kind which creates a massive impediment to the proper administration of justice, in my respectful submission. It simply would be a matter that rather than Judge McGuire saying, “We note the plea of guilty. How long do you want for a pre-sentence report? Right, come back in two months time”, he would simply be remanded back to the Children’s Court.

GLEESON CJ: I am not suggesting that there would ever be a case in which the plea of guilty would be motivated by the identity of the judge who had been assigned to hear the trial.

MR SUTHERLAND: I have never heard such a thing, your Honour.

GLEESON CJ: No. On your construction, and I am not suggesting this is necessarily wrong, but on your construction if Mr Walsh had said, “In this case my client will – if you will withdraw that charge of the serious children’s indictable offence my client will plead guilty to the other charge, the lesser charge” then Judge McGuire would have had no jurisdiction to deal with the matter and it would have had to go back to the Children’s Court where either the child would consent to be being dealt with according to law, in which case it would go back to a District Court judge, or the matter would be dealt with by the Children’s Court in accordance with a significantly different sentencing regime.

MR SUTHERLAND: Absolutely, and your Honour, if I can just intermingle practicalities with principle, one would want to go back to the Children’s Court where the maximum penalty is two years. One would not want to stay in front of Judge McGuire, or anybody who might be perceived as lenient, dealing with a maximum of 20 years. There are significant differences, including, in a practical sense, the whole circumstance of whether it – and I will come to this in due course – but whether it is a committal or whether it is a summary hearing.

If it is dealt with as a committal proceeding, as it was, the complainant is not called. There is no cross-examination. But, if it is dealt with as a summary hearing then a magistrate in the Children’s Court would assess the credibility of the complainant before deciding whether to continue as a summary hearing or whether to commit for trial. If it is dealt with summarily it is a two year maximum.

Judge McGuire commented on that when the point was raised before him, so that what happened was that in the practical circumstances of this case the prosecutor at the Children’s Court having laid a serious children’s indictable offence carrying a maximum of 20 years that must be dealt with according to law in circumstances where whatever in fact happened in the lost property room, whatever in fact happened in the interplay between the complainant and the defendant, on any view of it, one would have thought, objectively, most prosecutors would have had some reservation about whether, even on the complainant’s version, there was a malicious inflicting of actual bodily harm as opposed to some incidental occurrence, whatever it was that happened.

One would imagine that that was the motivating feature – without knowing, of course – that led the Crown Prosecutor that ultimately filed the bill of indictment to abandon that very serious circumstance of aggravation and simply seek to run on the fact that the girl was under 16.

Now, in the circumstances, and I have put it into my written submissions, your Honour the Chief Justice made some further observations in Stanton about it not being suggested in that course that there was any decision making by the prosecution that caused the circumstance to arise. It was the effluxion of time and the boy was by then 22. But here it is very different, very different. If the charge which was originally preferred and which was subsequently then filed in the indictment before Judge McGuire had proceeded, goodness only knows what would have happened. It is not like Grassby and Barton where one simply loses the possibility of a no prima facie case or one simply loses the opportunity to test the evidence and all of that welter of material of principle that has been examined in cases like Barton and Grassby.

There are some very, very practical differences and significant differences in relation to the whole manner of procedure. So that if Mr Walsh had instructions to plead, I have absolutely no doubt, in his absence today, that he would have said to Judge McGuire exactly what he did say when, as I put it as politely as I could in my submissions, it was prompted by the note from the jury that he discerned the significance of the difference between the charges and I do not think I am out of line in saying it is fairly clear to me that my learned junior, skilled and very experienced and expert as he is, perhaps had not twigged to the significance of the distinction when the indictment was changed.

But certainly when the overnight adjournment came about he came back the next morning and put, in effect, the submission that I am seeking to develop to your Honours, and I have no reservation in concluding that the likely circumstance were his instructions to enter a plea to the 61J(2)(d) that he would have said, “Your Honour, my instructions are to enter a plea of guilty. Your Honour should send it back to the Children’s Court where we will enter the plea”. I am positive that is what he would have sought. I am not sure if that answers your Honour the Chief Justice’s inquiry but I think in practical circumstances that is what would have happened.

GLEESON CJ: Yes, I think so. Thank you.

MR SUTHERLAND: Your Honours, the reasoning in the court below by Justice Latham we seek in the respectful way to attack on a number of bases. The principal illogicality that we advocate in her Honour’s reasoning is starkly identified by Justice Basten who delineated the four points of departure as he perceived the reasoning. I have quoted it and I do not stand before your Honours and read what I have put into the submissions in that regard, but I have quoted his Honour’s - Justice Basten’s observation about not waiving aside such a requirement so blithely, as it were.

Justice Latham, in our respectful submission, when one reads through her reasons, appears, if I may say with respect - and I will not keep repeating that. It is of course implicit in everything I say about what her Honour has had to say, but it is implicit that there was some problem with a complaint about the absence of a committal, and I have made the point in the written submissions, that was not the complaint that Mr Walsh brought at first instance. It was the absence of the mandatory requirement that the matter be dealt with summarily and it shall be dealt with summarily that we have come back to repeatedly, and I do not want to become repetitive, but I do urge upon your Honours at least a consideration that in a very real sense the whole process is different.

What had happened, of course, because it was a committal proceeding, was that there was no entitlement to require the complainant to be there, there was no entitlement to cross-examine her. All that was able to be done was in the light of what, as I perceive my learned junior’s cross-examination at the lower court at the committal proceedings was aimed at was dealing with the hyperbolic allegation of seven insertions and in the absence of DNA and various other aspects. So he required the pathologist, I think it was, to be there in order to clarify some matters which obviously would then focus on the way the trial would be conducted.

GLEESON CJ: Mr Sutherland, if you are right in your construction of the Act, what happens in a case where the charge is homicide, a case like Morgan, there is a committal proceeding in the Children’s Court and the accused is committed for trial to the Supreme Court and then before the Supreme Court the accused indicates a willingness to plead guilty to manslaughter, what enables the prosecutor to charge the accused with manslaughter in the Supreme Court?

MR SUTHERLAND: There is no mandatory requirement for it be dealt with summarily. It is a serious children’s indictable offence. It is a customary alternative to murder.

GLEESON CJ: That is probably a bad example that I just gave because the charge of homicide embraces a charge of manslaughter. But if you had a charge of serious indictable offence A and at trial before the District Court or the Supreme Court the child indicates a willingness to plead guilty to serious indictable offence B, on your argument section 8 does not require the proceedings in respect of charge B be commenced in the Children’s Court? I am picking this example because that is a case where, to give effect to the agreement about the plea to the lesser charge, it is necessary for there to be another charge. That is why said on reflection homicide is probably a bad example.

MR SUTHERLAND: Your Honour, can I hedge my response by simply saying it really does depend upon the factual circumstances. Let us take a preposterous example in one sense. Assume the child was charged with a homicide and for whatever reason, one can hypothesise till the cows come home, but for whatever reason the prosecution were prepared to abandon that but take a plea to common assault. It would be sent back to the Children’s Court and the child would plead guilty to common assault in the Children’s Court.

GLEESON CJ: Common assault is not a serious indictable offence, I presume.

MR SUTHERLAND: No, it is not. If it is a serious children’s indictable offence it would rather depend, I should imagine, on whether or not it was caught up in the original allegations. I am thinking of cases such as, was it Connolly in England where somebody was charged with, I think, manslaughter and then later tried for perjury after being acquitted and matters where there are quite a mutation, if you like, or a very drastic difference between the second allegation and the first. In some circumstances, if it were an adult, the accused might be sent back to stand a committal proceeding that brings in notions of fairness and brings in prospects of whether there ought be stays and whether it is an abuse of process and so on and so forth. But it is very difficult to answer the question in a vacuum, Chief Justice, because it seems to me that, depending on the particular circumstance, in many situations it would have to go back to the Children’s Court.

GLEESON CJ: Take the facts of Morgan. That is a case in which a group of young people lured a man to a park and kicked him to death. Three of the young people pleaded guilty to manslaughter. One of them did not plead guilty to manslaughter and later, because of the information that emerged, as I recollect it, in the sentencing proceedings in relation to the first three, the prosecuting authorities decided to charge young person number four with murder. Could the charge of murder be laid for the first time in the Supreme Court on an ex officio indictment, for example?

MR SUTHERLAND: I think not, but I have to say immediately that if it could be, it does not necessarily prove fatal to the particular submission that I put which may ultimately be confined to 31(1) where it shall be dealt with summarily because there is a distinction that might be brought. The notion that because of the operation of section 7 and section 8 that the Children’s Court has exclusive jurisdiction may mean that what has to happen in that particular case because it was a young person is that the evidence ought to be tested at a committal proceeding and that rather than simply filing an ex officio indictment - - -

GLEESON CJ: I took the example of Morgan because that evidence had been comprehensively tested, I think. In other words, there could always be an objection to proceeding by way of ex officio indictment because there was injustice involved in it.

MR SUTHERLAND: Yes. I am familiar in broad terms with Morgan. I confess I have not read the judgments but I do recall the factual background. But, in my submission, had they not been comprehensively tested in the sort of circumstances that your Honour the Chief Justice is outlining, then I would have thought it ought go back and have a committal proceeding in the Children’s Court.

HAYNE J: On this construction of section 31 may I take you to appeal book page 82 and the reasons of Justice Basten, particularly paragraph 24 where his Honour deals with this question of construction of section 31.

MR SUTHERLAND: I am sorry. Was that 82, your Honour?

HAYNE J: Page 82, paragraph 24, about lines 23 or following. Do you have it?

MR SUTHERLAND: Yes, I do, your Honour.

HAYNE J: His Honour in the third sentence of that paragraph says that “if” could mean “when” in the sense of “whenever” and that it is that meaning that is to be preferred. Could I understand what you say, whether by reference to what Justice Basten says or independently of what Justice Basten says, is the reading of 31(1) that obliges the laying of an offence other than a serious children’s indictable offence in the Children’s Court? Can I explain why the question arises?

MR SUTHERLAND: Certainly, Justice Hayne.

HAYNE J: If “if” means “whenever” so that you read it “whenever a person is charged before the Children’s Court with an offence other than a serious children’s indictable offence is to be tried summarily”, that seems to be a reading that construes section 31 as dependent upon satisfaction of a condition precedent, namely, that there is in fact a charge which has been laid before the Children’s Court. Now, what is it in the Act generally or 31 in particular that requires that the charge be laid only in the Children’s Court?

MR SUTHERLAND: The combination of section 28 of the Children (Criminal Proceedings) Act which imbues the Children’s Court with jurisdiction in respect of such an offence and section 7 of the Criminal Procedure Act.

HAYNE J: You may mean 8, do you, of the Criminal Procedure Act, the “Prosecution of indictable offences” and that chain we looked at earlier, 8 back into 6 via 7?

MR SUTHERLAND: Yes, your Honour.

HAYNE J: That chain, yes.

MR SUTHERLAND: Yes, I am sorry, 8 and 8(3).

CRENNAN J: And I think you mean 7 and 28 of the Children (Criminal Proceedings) Act read together.

MR SUTHERLAND: Thank you, Justice Crennan, yes. I think that is the answer to your Honour Justice Hayne’s inquiry and it is frankly the best one that I can give you.

HAYNE J: As you might have gathered, coming to it uninformed it had seemed to me that 8 of the Children (Criminal Proceedings) Act would be advanced as both a necessary and a sufficient step to the exclusivity, but - - -

MR SUTHERLAND: Your Honour, the background, of course, really does come to the whole notion of there being – and I said this more than an hour ago, but there is an identified class of the community.

HAYNE J: Exactly so. But, hence, read 8 not as just, well, look on the whole it is better if you do or better unless some undefined, unreferred to exceptional circumstances occur, should, as I say, is simply modish drafting which imposes an obligation.

MR SUTHERLAND: I think the reason for the modish selection of terminology, if I can pick up that phraseology, was simply, as I say, to permit in appropriate circumstances the use of warrant, but I frankly think that the drafting may be adequately described by the way your Honour Justice Hayne puts it. We really advocate, when it is all said and done, that the protective nature of children’s legislation of this kind ought not be ignored or stepped around. It is for that reason that I picked up – and not just because your Honour the Chief Justice was presiding today – that phrase or paragraph from Stanton which, although it did not carry the day in Stanton for the particular reasons of the facts of that case and the fact that he was 22 years of age and the fact that there was no question about the jurisdiction of the District Court because he was 22 and the Children’s Court no longer had jurisdiction, that in those circumstances it seems to me to be apposite to focus on that statement of principle by the Chief Justice and then to buttress it by analysing the legislation.

When one looks to the reasons for the protective legislation touching upon the procedural matters in the Children’s Court, the different regime of approach to sentencing, the different options that are available until somebody hits 21 years of age, when one looks at all of those questions of principle, it really goes full circle to saying, well, why was it that the New South Wales Parliament when they enacted this protective legislation singled out section 61J(d) out of that concatenation of particulars in circumstances of aggravation and gave it a different nomenclature, gave it a different category of offence?

GLEESON CJ: Insofar as your argument depends upon section 8(1), it follows, does it not, from the provisions of section 8(2), and in particular section 8(2)(a)(i), that in the case of a child who is charged with a serious children’s indictable offence the provisions of 8(1) do not apply and insofar as the exclusivity of the jurisdiction of the Children’s Court depends on 8, it does not have exclusive jurisdiction?

MR SUTHERLAND: Other than the fact that 28(1)(b) gives the Children’s Court jurisdiction to deal with:

committal proceedings in respect of any indictable offence (including a serious children’s indictable offence) - - -

GLEESON CJ: Yes, but what makes that jurisdiction exclusive?

MR SUTHERLAND: If you go back to section 8 – I am sorry. No, it would not be.

GLEESON CJ: So that if a child is charged with murder, what, can somebody exercise a discretion as to whether the proceedings are commenced in a Children’s Court or in a Local Court? By that I mean the committal proceedings.

MR SUTHERLAND: No, your Honour, because section 7 of the Children (Criminal Proceedings) Act excludes the jurisdiction of the Local Court:

Except as provided by this Act, a Local Court may not hear and determine criminal proceedings that the Children’s Court has jurisdiction to hear and determine.

GLEESON CJ: And the words “hear” and “determined” include commit for trial?

MR SUTHERLAND: Yes, just as “hear” and “determine” in the summary process that I am focusing on includes hearing it summarily until the completion of the prosecution case and then determining whether to transmute it, as it were, into a committal from that point on or whether to continue with the summary hearing.

GLEESON CJ: So committal proceedings against children in respect of serious indictable offences always take place in the Children’s Court?

MR SUTHERLAND: Yes, your Honour.

GLEESON CJ: Thank you.

CRENNAN J: And “Local Court” in section 7 has special meaning related to the Local Courts Act?

MR SUTHERLAND: A Magistrates Court, other than a Children’s Court.

CRENNAN J: Yes, thank you.

MR SUTHERLAND: Your Honours, I fear I will become repetitive if I simply continue. Unless there is some specific matters, may it please your Honours, those are my submissions.

GLEESON CJ: Thank you, Mr Sutherland. Yes, Mr Lamprati.

MR LAMPRATI: Your Honour, I have handed these gifts to my friend and I will hand them up, your Honour. I have copies of the Children (Criminal Proceedings) Regulation 2005.

GLEESON CJ: Thank you.

MR LAMPRATI: May it please, your Honours, may I begin by respectfully reminding the Court of the provisions of section 60 of the Criminal Procedure Act. Having regard to submissions which have been made – not articulated by my friend but which are in the written submissions – we have both Acts in the one folder and it is very untidy. It has been stressed in cases that have been decided over the years, when a magistrate commits pursuant to the Criminal Procedure Act he commits to the effect that he finds that there is evidence capable of satisfying a reasonable jury properly instructed beyond reasonable doubt that the accused person has committed an indictable offence.

GLEESON CJ: Not the indictable offence charged.

MR LAMPRATI: Exactly. It is commonplace for Crown Prosecutors, as the trial approaches, to change the charge. That can happen for a number of practical reasons; conferences with witnesses might show the evidence is not as strong as had been first thought, forensic evidence reports may come in later and slightly change the facts. But it is not, as it were, when that is done, evidence of an attempt to get round what happened in the court below or in this context here to circumvent the procedures of the Children’s Criminal Court.

What appears to have happened is that as the matter approached for trial the prosecutor handling the matter decided that with the facts of the matter – and there are seven aspects of it which are referred to in the evidence – it was simpler to frame the charge as one under 61J(2)(d), the charge which alleged the age of the complainant as the aggravating factor.

GLEESON CJ: I made a note, and maybe my note was wrong, that you referred to section 60 of the Criminal Procedure Act. It is section 63 of the Criminal Procedure Act?

MR LAMPRATI: Yes, your Honour.

GLEESON CJ: It is the words – and these have been commented on in a number of cases – in section 63(1) “an indictable offence”.

MR LAMPRATI: Yes, and in sections 64 and 65 the same formula is used. The actual committal section is section 65:

a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person - - -

GLEESON CJ: Is Wentworth v Rogers the case about that?

MR LAMPRATI: I cannot remember, your Honour, I am sorry. One of the cases referred to by her Honour Justice Latham was the case of Butler where your Honour the Chief Justice, then Chief Justice of New South Wales, referred to this very fact and pointing out that the initial charges are often not drafted by a Crown Prosecutor at all, but by a police officer. In fact, that is what happened here. The court attendance notices are drafted in the name of the officer whose name appears on them. I raise these points, your Honour, because it does appear that at some stage of the proceedings before getting to the High Court there were suggestions of a deliberate attempt, as it were, to get round the provisions of the Children’s Court and - - -

KIRBY J: Justice Basten calls it consequentialist reasoning.

MR LAMPRATI: Yes, even in our submissions to the Court we may be condemned as consequentialist rhetoricians I think is the word, your Honour. To the extent that we have pointed out the difficulties that could arise from the position advanced by our friends we will just simply have to bear that cross. Your Honours, the consequences - - -

KIRBY J: Whatever happened about the old principle about let the heavens fall? If the law requires something, the consequences can – if they include the heavens falling, it cannot be much worse than that.

MR LAMPRATI: They can but it is legitimate to point out the consequences as - - -

GLEESON CJ: One person’s consequentialist rhetoric is another person’s purposive construction.

MR LAMPRATI: Yes, your Honour. To take your Honour the Chief Justice’s example, if you had a serious indictable offence committed and the charge were later added that is not a serious indictable offence, according to my friend’s argument, as I understand it, if that serious indictable offence went – for example, if there were on the evidence a directed verdict at trial – the other offence would have to go back to the Children’s Court because, on my friend’s argument, there is no jurisdiction any longer to deal with it.

GLEESON CJ: Now the question that your opponent asks rhetorically is, what is wrong with that?

MR LAMPRATI: What is wrong with it is it is very strange, to say the least. The trial would have to be terminated, the proceedings started all over again virtually in the Children’s Court. That is a very drastic consequence, your Honour, and it is not as if in the normal - - -

KIRBY J: But if we are talking about purposive construction, there does seem to have been some purpose on the part of Parliament to give a priority to children being heard in the Children’s Court and at least one juror, a citizen, wanted to know why that was not happening.

MR LAMPRATI: Yes, because there was a child although – indeed, your Honour, but it does not mean that the Children’s Court is exclusively concerned with the hearing of these matters. Indeed, the legislation is peppered with provisions which require all courts dealing with children to have regard to certain principles. It is not confined to the Children’s Court.

KIRBY J: But how do you show a verbal route to the result that you say is the Parliamentary purpose that avoids the inconvenient consequences that you pretty convincingly referred to? What is the verbal route, because if there is no verbal route, it can be as inconvenient as it likes but, as far as I am concerned, I will give effect, as Bean’s Case says, to the purpose of Parliament as revealed in the words Parliament has used.

MR LAMPRATI: Because the Act makes clear, your Honour, that other courts, apart from the Children’s Court, will deal with children in criminal matters. For example, section 6 of the Children (Criminal Proceedings) Act:

Principles relating to the exercise of criminal jurisdiction

A court, [that is any court] in exercising criminal jurisdiction with respect to children, shall have regard to the following principles - - -

HAYNE J: So much is inevitable from the consequence of there being committal for trial elsewhere.

MR LAMPRATI: Yes.

HAYNE J: I understand that other courts may engage with children at their trial, but I understand also that you say there is a raft of consequences which you would wish to characterise as awkward, difficult, et cetera.

MR LAMPRATI: I understand that.

HAYNE J: How do we grapple with the Act?

MR LAMPRATI: Yes, his Honour the Chief Justice raised that earlier so I refer to it. Your Honour, if I can go directly to section 31 of the Children (Criminal Proceedings) Act. My friend relies on that as advancing his argument that these matters that were charged ex officio or subsequent to the proceedings below were beyond the jurisdiction of the District Court. He says that section 31 means that, effectively, those charges must be dealt with before the Children’s Court. My submission is, your Honour, that section 31(1) and, indeed, subsections (2), (3), (4) and (5) are predicated on the fact that the person is before the Children’s Court. It is not dealing with the situation when the child has, as it were, left the court and we have moved on to the stage where the matter is being prepared for trial and ex officio indictments might be brought or the indictment itself might be amended by the addition of other charges.

CRENNAN J: You are relying on the meaning of “if”, which Justice Basten rejected, which at appeal book 82 is this:

‘if a person is charged before the Children’s Court, rather than on indictment before the District Court’ –

That is the content to which you are giving “if”?

MR LAMPRATI: Yes. His Honour said, as I understand it, “if” really means “when” or “whenever”. We ask the rhetorical question, how does that significantly change the meaning? It is a temporal thing; when the person is before the Children’s Court. That is reinforced, your Honour, by the wording, for example, of subsection (2)(b):

if the person informs the Children’s Court . . . that the person wishes to take his or her trial according to law –

It is talking of the presence at the Children’s Court. If he is charged before the court those consequences follow. But it does not apply, we submit, to circumstances when the matter has progressed beyond the Children’s Court and the matter is going for trial and questions of ex officio indictment arise.

HAYNE J: We begin with the fact that an indictment is filed in the District Court, that is the fact. Section 46(2) of the Criminal Procedure Act gives the District Court “jurisdiction in respect of all indictable offences”, other than some that are accepted by regulation. This is not an offence prescribed by regulation for the purposes of section 46(2) of the Criminal Procedure Act, is it?

MR LAMPRATI: Yes.

HAYNE J: That then sends you in search of some trenching upon the otherwise general conferral of jurisdiction by 46(2).

MR LAMPRATI: Yes.

HAYNE J: Section 31(1) is proffered as one example, you say, that the “if” clause, however it is understood, is a temporal circumstance or a circumstance that must exist before 31 is engaged.

MR LAMPRATI: Yes. You have be before the court, physically before the court.

HAYNE J: Now, this not being a serious children’s indictable offence that was charged in the indictment in the District Court, why does 8(1) not present a hurdle in your way?

MR LAMPRATI: Because we are beyond the stage of the Children’s Court proceedings, your Honour.

HAYNE J: What is the consequence of filing an indictment in the District Court? Does the filing of an indictment in the District Court in any sense commence a criminal proceeding against the person named in the indictment for the charge preferred in the indictment?

MR LAMPRATI: Yes.

HAYNE J: Are we not beginning to encounter a hurdle in your way? That is, do we not have to understand the commencement of criminal proceedings not in some general or generic sense, but rather by reference to the specific charge that the accused person has to answer? The specific charge with which we are concerned is not a serious children’s indictable offence.

MR LAMPRATI: Yes, your Honour.

HAYNE J: You say that the proceeding charging that offence may be commenced by filing the indictment?

MR LAMPRATI: Ex officio and then filing the indictment - - -

HAYNE J: I understand.

MR LAMPRATI: Yes. Yes, subject to this, your Honour. If it were done, as it were, not bona fide in an attempt to get round - - -

HAYNE J: Abuse of process, I understand all of that.

MR LAMPRATI: Abuse of process. If it were done in that sense - - -

HAYNE J: It is not suggested and we can put all that to one side.

MR LAMPRATI: Yes.

HAYNE J: Let us assume that there is a raft of sound reasons why this has come about.

MR LAMPRATI: Yes.

HAYNE J: But what do you say about 8 of the Children (Criminal Proceedings) Act?

MR LAMPRATI: Yes.

HAYNE J: You are just leading on a step. What is noticeably absent, I think, from the whole legislative scheme is the sort of provision found in other jurisdictions which enables the superior courts to deal, for example, with a plea of guilty to an offence otherwise only capable of being dealt with in the Children’s Court, a matter that has encountered some particular difficulty in Victoria recently where a child charged with homicide ultimately did a deal with the prosecution to plead to intentionally inflict serious injury or something. That fell within the jurisdiction of the Children’s Court. The Supreme Court had to deal with it as if it were the Children’s Court. That limited the sentence to two years. That was a rather awkward result for those advising the Crown.

MR LAMPRATI: Your Honour, my submission is that section 8 of the Children (Criminal Proceedings) Act in essence requires that it is preferable that criminal proceedings should not be commenced against the child otherwise than by way of court attendance notice. It is not in mandatory terms. The wording is clear, in my submission. As we put in the written submissions, your Honour, when the matter was debated in Parliament and my friend has perhaps poured a little cold water on it, the expression was encouraged.

There is a history, certainly in New South Wales, of the authorities, not only in respect of children either but in respect of adults, limiting the more drastic methods of apprehension to bring somebody before a court and where possible using first the summons and now the court attendance notice. In my submission, that cannot be used as a springboard to suggest that criminal proceedings must - - -

GLEESON CJ: Where do we see that Parliamentary material that you were just referring to?

MR LAMPRATI: We put it in paragraph 5.16 of the submissions, page 9, your Honour:

“the proposed section is intended to encourage the use of attendance notices and summonses in preference to warrants.”

GLEESON CJ: Well, your footnote 3 on page 9, the Minister referred to what he called:

the exercise of police discretion as to whether or not to commence proceeding by way of charge, summons or use of attendance notices - - -

MR LAMPRATI: Yes. Your Honour, in this welter - - -

HAYNE J: It is an unusual form of drafting to issue the exhortation without identifying for those thus exhorted what criteria they are to apply in pursuit of the exhortation.

MR LAMPRATI: Yes, your Honour.

HAYNE J: It is a form of drafting I do not think I have previously encountered.

MR LAMPRATI: It is like the “is.”

GLEESON CJ: But, Mr Lamprati, I am interested to understand in the context of the construction of section 8 the practical circumstances in which this operates. It seems to be common ground between you and your opponent that the most obvious alternative, perhaps the only alternative, to commencing proceedings by way of court attendance notice is commencing proceedings by way of arrest.

MR LAMPRATI: Yes.

GLEESON CJ: Well, it is my understanding that one reason you might arrest somebody is because they are about to escape.

MR LAMPRATI: Yes, or violent or whatever.

GLEESON CJ: Yes. Now, if section 8 were construed as making it mandatory to commence proceedings by way of court attendance notice, how would that apply in relation to violent children or children who are about to escape?

MR LAMPRATI: It would make a nonsense of the section because if it is mandatory to use that these discretions which depend on the opinion of the person on the ground, as it were, mean nothing.

GLEESON CJ: But I am just wondering if there is a practical reason why it might not have been intended to be mandatory when you bear in mind the circumstances in which a power of arrest might need to be exercised or might properly be exercised. Is that right? I just do not know.

MR LAMPRATI: The suggestion is that in the circumstances other than where set out in subsection (2) apply, it may not be appropriate to use a court attendance notice and therefore the exhortation, to use Justice Hayne’s expression, in subsection (1) does not apply, “does not apply”, it says.

HEYDON J: There is no inconsistency between commencing by way of court attendance notice and also arresting the person. Section 175 of the Criminal Procedure Act assumes that you can have a court attendance notice and also arrest the person. If you do arrest the person then it affects the contents of the notice but it leaves the existence of the notice standing.

MR LAMPRATI: What it appears to do is to give a discretion in the apprehending official.

HEYDON J: Discretion to do what?

MR LAMPRATI: To proceed other than by court attendance notice.

HEYDON J: If the person is not arrested and there is no court attendance notice, what other method is there?

MR LAMPRATI: Arrest. I am sorry, I am at cross-purposes, your Honour. I am suggesting that subsection (2) leaves it to the discretion, the opinion of a “person by whom the proceedings are commenced”. Typically, I would suggest, in the case of (b), a police officer, that:

there are reasonable grounds for believing that:

for example –

(i) the child is unlikely to comply with a court attendance notice –

and so on, then to proceed “other than by court attendance notice” – even arrest.

GLEESON CJ: Is burglary a serious children’s indictable offence?

MR LAMPRATI: Burglary?

GLEESON CJ: Yes.

MR LAMPRATI: I do not think so.

GLEESON CJ: Suppose the police find a child in the act of being in somebody’s home stealing property, what do they do?

MR LAMPRATI: Depending on the circumstances, your Honour, if, for example, they thought that the child was a serial offender and would go out and do it again, if they thought the child was likely to run away and escape, if they thought he was likely to be violent - - -

GLEESON CJ: That is all covered by parts of section 8(2).

MR LAMPRATI: Yes. Then the appropriate way to commence the proceedings would probably not be a court attendance notice.

GLEESON CJ: But that does not militate against giving subsection (1) a mandatory interpretation because those exigencies are all caught up in the qualification to subsection (1) contained in subsection (2).

MR LAMPRATI: Yes. The terms itself, your Honour, are not mandatory. It is “should not”. It is an exhortation. It is not “must not”, but the following “does not apply”. It is “should not”. Your Honour asked me about the – I think this might carry it a little further. In the Children (Criminal Proceedings) Amendment Bill 1987 – it is Act No 270 – dealing with section 8 it says:

The proposed section is intended to encourage the use of attendance notices and summonses in preference to warrants.

GLEESON CJ: Could we have a copy of that speech, please?

KIRBY J: Do we have the explanatory memorandum?

MR LAMPRATI: Yes, we have it.

KIRBY J: It is there.

MR LAMPRATI: I am just taking the stickers off it.

GLEESON CJ: Yes. If you could get copies of the explanatory memorandum and the second reading speech for us then we can look at the context in which that was said.

MR LAMPRATI: Yes. Our submission is that section 8 is not a mandatory requirement. The language shows that, we say.

We would submit on that, finally, your Honour, that it would be highly unlikely that the provision is mandatory if the circumstances in subsection (2) really are up to the opinion of the officer concerned. They are hardly mandatory - - -

HEYDON J: Paragraph (2)(a) does not turn on opinion. Paragraphs (a), (b) and (c) are all - - -

MR LAMPRATI: Yes, it is included there, your Honour. More fundamentally, I come back to the use of the words “should not” and the explanatory notes “to encourage”. I mean, it would have been simplicity itself to say “must not”. We have also featured in the written submissions, your Honours, what we submit would be a further difficulty by giving section 8 a mandatory construction, that if alternative charges are to be added subsequent to a committal, for example, it would mean – I withdraw that, your Honour.

GLEESON CJ: What was the legislative position before this Act of 1987, Mr Lamprati? The Children’s Court has been around a lot longer than this. Before 1987 was there legislation which bore upon this question of whether you had to proceed in the Children’s Court in respect of offences of certain kinds? Are there any judicial decisions bearing on that? What was the state of the law in New South Wales prior to this Act?

MR LAMPRATI: Your Honour, could I have a chance to look at that over lunch.

GLEESON CJ: Yes, perhaps you could let us have a note of that within seven days.

MR LAMPRATI: Yes, seven days, thank you.

HAYNE J: Could you be good enough also to attach to that note any regulations that are made for the purposes of sections 170 and 171 of the Criminal Procedure Act 1986? I have in mind particularly 170(2)(e) and 171 and its definition of “magistrate”. There is a contemplation of regulations and I would just like to see if there is anything being done under those.

MR LAMPRATI: Yes. I have referred to section 31(1), your Honour, but his Honour Justice Basten concluded that the power to file an ex officio indictment was excluded by the combined operation of section 31(1) and section 8(3) of the Criminal Procedure Act which says – I am sorry, your Honours have already been referred to section 8, “Prosecution of indictable offences.” Subsection (3) says:

(3) This section does not apply to offences . . . required to be dealt with summarily.

As detailed in the written submissions the charge that was added here, the charge pursuant to section 61J(2)(d), the one that was effectively put on the indictment, withdrawn and then by the prosecutor at trial put in the indictment, is not something, we submit, that is required to be dealt with summarily. It is an offence that in fact carries 20 years maximum imprisonment. It is quintessentially an indictable offence. It is indeed, under the Criminal Procedure Act, not one that one can elect on.

Of course section 60 relates to offences which may be dealt with summarily unless election is made to proceed on indictment. Now, section 61J does not appear either in table 1 to Schedule 1 or table 2 to Schedule 1. You cannot elect to have it dealt with summarily. Now, we have situation then, when it is not an offence, we submit, that not only is it required to be dealt with summarily but it can be dealt with summarily.

GLEESON CJ: Just a minute. I thought, and I may have misunderstood this, that the Children’s Court can always decide that a charge is not properly disposed of summarily.

MR LAMPRATI: Yes.

GLEESON CJ: Now, you point out rightly that the offence of having sexual intercourse with somebody without their consent is ordinarily regarded as a serious offence.

MR LAMPRATI: Yes.

GLEESON CJ: But are you submitting that the consequence of accepting the argument against you is that that offence must always be dealt with summarily by the Children’s Court?

MR LAMPRATI: According to Justice Basten, yes, because it is not a serious – I withdraw that. His Honour relies on a combination of section 31 from the Children (Criminal Proceedings) Act and section 8(3) in the Criminal Procedure Act to say that this offence simply has to be dealt with by the Children’s Court and also section 8(1) of the Children (Criminal Proceedings) Act, the section about the CANs - - -

GLEESON CJ: I am looking at subsection 31(3). Does that not, in effect, oblige the Children’s Court to consider the question whether having regard to the evidence the charge is one that is not properly to be disposed of in a summary manner so that if in the present case, for example, Mr Sutherland’s client had indicated a willingness to plead guilty to the charge of having sexual intercourse with this young woman without her consent and the matter went back to the Children’s Court, it would be part of the responsibility of the Children’s Court to decide whether it was proper to dispose of that in a summary manner. Is that right?

MR LAMPRATI: The example that your Honour gave if the District Court remits it back?

GLEESON CJ: Suppose, just alter the facts of the present case slightly to assume that this problem arose in circumstances where Mr Sutherland’s client indicated a willingness to plead guilty to the charge with which we are now concerned and suppose Judge McGuire was right to say, “I have no jurisdiction to deal with your plea of guilty. The matter must go back to the Children’s Court”.

MR LAMPRATI: Yes.

GLEESON CJ: Does it inevitably follow from that that the matter would have to be finally dealt with in the Children’s Court with all the limitations upon maximum sentence and so forth, or would it be open to the Children’s Court, looking at the case, to say, “Having considered the facts of this case, we do not think this is a charge that can properly be disposed of in this court?”

MR LAMPRATI: Well, under section 31, yes.

GLEESON CJ: Yes to what?

MR LAMPRATI: The magistrate could say, “I do not think it is properly to be disposed of here”.

KIRBY J: So what is wrong with that? It is a little administratively inconvenient but it then upholds Parliament’s purpose of having, prima facie, children dealt with in the Children’s Court.

MR LAMPRATI: The Children’s Court Magistrate would then send it back to the District Court.

GLEESON CJ: I think it is subsection (5) rather than subsection (3).

MR LAMPRATI: Yes, although that - - -

GLEESON CJ: Is that not the answer to your argument, that it seems very strange indeed that what in the old-fashioned days used to be called “rape” would necessarily have to be dealt with and dealt with only in the Children’s Court?

MR LAMPRATI: Yes.

KIRBY J: Where then lies consequentialist rhetoric?

GLEESON CJ: Except in relation to all the people who have pleaded guilty in the District Court in the past.

MR LAMPRATI: Yes.

KIRBY J: That sounds like heaven is falling to me.

HAYNE J: I read the words, you follow a purposive construction, he employs consequentialist rhetoric. It is one of those irregular - - -

MR LAMPRATI: Yes. One wonders if Dante reserved a special place in hell for consequentialist rhetoricians, your Honour.

GLEESON CJ: No, we hear plenty of consequentialist rhetoric in the course of the performance of our duties, Mr Lamprati, and not always from the front.

MR LAMPRATI: Your Honour, it is, if I may be so bold, very strange if the legislature intended that. If there is no other choice, yes, but one is permitted to look to consequences when a number of interpretations are open.

GLEESON CJ: I think we are confronting you with the question of what is so strange about it bearing in mind provisions such as section 31(5).

MR LAMPRATI: Yes, but I thought the example your Honour gave to me was if the person pleaded guilty in the District Court, referred it back to the Children’s Court and the Children’s Court - - -

GLEESON CJ: And then he would have to review the plea of guilty in the Children’s Court.

MR LAMPRATI: Yes, and the Children’s Court Magistrate did not think he should deal with it.

GLEESON CJ: You will have gathered that we are very anxious to be sure that we at least understand what all the consequences of this are.

MR LAMPRATI: Yes. The consequences that have been suggested, in my submission, are not unrealistic.

GLEESON CJ: Justice Basten’s argument or reasoning did not depend upon giving section 8 of the Children (Criminal Proceedings) Act a mandatory interpretation, did it?

MR LAMPRATI: As we read it, he did. That was one of the factors - - -

GLEESON CJ: Where did he deal with that?

MR LAMPRATI: At appeal book 82 at paragraphs 24 and 25, your Honour.

HAYNE J: Which might also be read with paragraph 28 in the last three lines though I note in the first three lines of paragraph 28 his Honour expresses the conclusion that:

all offences which are not serious children’s indictable offences are required to be dealt with summarily –

which seems at odds with 31(3) and (5) I would have thought. But it is the last three lines and his references to section 8 of the Children (Criminal Proceedings) Act.

MR LAMPRATI: And that the DPP “had no power in this case to file an ex officio indictment”, yes.

HAYNE J: There are some difficult questions of terminology presented by his Honour’s reasons such, for example, as the last line on page 83 that the indictment “was not a valid indictment”. It may be perhaps more a question about the jurisdiction of the court.

MR LAMPRATI: We have pointed in the submissions, for example, that it appears to be implied by his Honour that by, as it were, a stroke of the pen the Crown Prosecutor or the DPP may simply brush aside the beneficial effects of the Children (Criminal Proceedings) Act. As we pointed out in the written submissions, there is a whole raft of provisions in that Act which apply to all courts relating to children, including in section 20 the power in the District Court to refer it back for sentence to the Children’s Court.

GLEESON CJ: There is another related question. I think this is addressed in the reasons in the Court of Criminal Appeal, but one way of looking at this problem is that it throws up a question of the power to proceed by way of ex officio indictment. In a sense, the Children (Criminal Proceedings) Act deals with cases where there are committal proceedings or summary proceedings, but it does not expressly address the issue of the ex officio indictment.

MR LAMPRATI: Yes, your Honour.

GLEESON CJ: From one point of view, the problem that this cases raises is where does this legislation, that is the Children (Criminal Proceedings) Act 1987, leave the ex officio indictment?

MR LAMPRATI: My submission would be provided it is exercised in good faith.

GLEESON CJ: Yes, there are all sorts of reasons discussed in Barton, for example, as to why a court might not entertain proceedings commenced by way of ex officio indictment, but we are not concerned with that problem.

MR LAMPRATI: Yes.

GLEESON CJ: The question is, assuming none of those barriers to proceeding by way of ex officio indictment exists, does this legislation produce the consequence that the power to proceed by way of ex officio indictment does not exist in relation to children?

MR LAMPRATI: No. We would say no, your Honour.

KIRBY J: There is nothing in the Director of Public Prosecutions Act that is relevant?

MR LAMPRATI: Not that I can think of, your Honour.

GLEESON CJ: The answer to that question might involve an understanding of the nature of the power to proceed by way of ex officio indictment.

MR LAMPRATI: Yes.

GLEESON CJ: But an argument put against you, as I understand it, is that if this legislation leaves unaffected, untouched, the power to proceed by way of ex officio indictment, even though it is not something that was attempted in this case, the way is clear to the prosecuting authorities to bypass the protections for children that are established by this Act.

MR LAMPRATI: If it were done with that intention I would suggest that a court would not hesitate to make a stay.

GLEESON CJ: Or done with that effect?

MR LAMPRATI: Effect is another - - -

GLEESON CJ: In a case, for example, where there just was not a proper committal proceeding?

MR LAMPRATI: Yes. We would say, what is wrong with section 20? If, in the circumstances, it has had a harsh effect what is wrong with the District Court judge, we would say, referring it back for sentence if that person is convicted?

GLEESON CJ: Section 20?

MR LAMPRATI: Of the - - -

HAYNE J: That is remittal for punishment, not for trial.

MR LAMPRATI: Yes, your Honour, assuming that. If the person is acquitted, your Honour, well and good, I suppose, but if a person has been convicted and there is a fear that the Director by using the ex officio power has, as it were, circumvented benefits the argument could be put to a judge and no doubt in a suitable case a judge would accede to it and refer it to the Children’s Court for sentence with all that that means.

I suppose it is difficult, without a concrete example. It appears to be now. Earlier on the “rhetoric”, to use that word again, that was being used was suggested somehow this was an attempt to circumvent. There is no suggestion now, as I understand it, that that was done here. If it were done improperly, your Honour – I know I have already said this – the Director would be in peril of a stay.

HAYNE J: In statutory terms you say that 8(1) and 8(2) of the Criminal Procedure Act, 8(1):

All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown . . .

(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed -

is unaffected by any relevant provision of the Children (Criminal Proceedings) Act.

MR LAMPRATI: Yes, the inherent powers come back to what we said in our written submission. It is not, to use your Honour the Chief Justice’s expression at the outset of the case today, it is not an exclusive jurisdiction. It contemplates, as we have submitted in writing, that the Children’s Court is there but other courts deal with children too and there is a whole regime extending over more than one court, indeed any court that deals with children, laying down principles that must be applied.

Your Honour, I am reminded by my learned junior, Children (Criminal Proceedings) Act, section 16 may touch upon the example that your Honours gave:

This Division applies to a person:

(a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children’s Court,

(b) who was a child when the offence was committed, and

(c) who was under the age of 21 years when charged - - -

GLEESON CJ: So it would apply in this case if the appellant were convicted.

MR LAMPRATI: Or if he pleaded.

GLEESON CJ: Either way.

MR LAMPRATI: Yes. Section 17, of course applies:

in relation to a serious children’s indictable offence, be dealt with according to law.

18 Other indictable offences

(1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children’s indictable offence, be dealt with:

(a) according to law, or

(b) in accordance with Division 4 of Part 3.

That is the Children’s Court, your Honour.

HAYNE J: The punishments that may be awarded by the Children’s Court are those specified in section 33, I think.

MR LAMPRATI: I notice in section 18(2), your Honour:

For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children’s Court under that Division in the same way - - -

HAYNE J: But let it be assumed that a child was brought to the Children’s Court by a court attendance notice for an indictable offence that was not a serious children’s indictable offence; assume further that the Children’s Court determined that it was not appropriate to deal with it summarily, the child therefore goes to trial in, let it be assumed, the District Court; come time for sentence, the District Court has to decide, does it not, whether 18(1A) or 18(1)(b) is to be engaged; the court is guided in that decision by the provisions of (1A); if it goes down the (1)(b) path it has a series of lesser and more educative penalties but if it goes down the 18(1A) path it may treat the offender as it would have other offenders, no doubt taking account of the age of the person concerned. Do I have the statutory chain right?

MR LAMPRATI: Yes.

MR SUTHERLAND: Your Honour, if I might, there is an additional qualification of that section 20. Section 20 may permit the District Court - - -

HAYNE J: You can send them down.

MR SUTHERLAND: You can send it back so I could either deal with him as a child there or send it back.

MR LAMPRATI: I am reminded, I think I have already mentioned this, but section 6 of the Children (Criminal Proceedings) Act the principles relating to the exercise of criminal jurisdiction with respect to children, that applies to all courts.

GLEESON CJ: Can I take you back to the argument you began with in which you pointed out that when a magistrate commits a person, whether a child or not a child, for trial, the magistrate does so on the basis that there is evidence fit to go to the trial of an indictable offence. The magistrate is not confined in that consideration or decision to the precise indictable offence that was charged, for example, by the police officer who framed the charge.

In ordinary criminal practice, after a person is committed for trial for an indictable offence, if the indictment that is framed by the prosecuting authorities, which by that stage will be officers of the Director of Public Prosecutions Office, for example, is different in some respect from the charge framed by the police officer originally that brought the person before the magistrate, the committing magistrate, that is not called an ex officio indictment, is it?

MR LAMPRATI: No, because there has been a committal. It is simply - - -

GLEESON CJ: Is it the case that it is not uncommon that the indictment presented at trial will differ in some respects from the charge that brought the person before the committing magistrate.

MR LAMPRATI: Yes, in fact one could almost say it is common.

GLEESON CJ: And that is the significance of the use of the indefinite article rather than the definite article in sections 63 and 64 of the Criminal Procedure Act.

MR LAMPRATI: Yes.

GLEESON CJ: Well, it being not uncommon where a person has been committed for trial for the charge in the indictment to differ from the charge as framed in the initiating process before the committing magistrate. What is the significance of that in terms of the arguments about construction with which we are concerned?

MR LAMPRATI: The aspects that your Honour mentions occur, I submit, at a later stage when the matter has gone beyond the Children’s Court.

GLEESON CJ: But is it the case that the question of a different charge being laid at trial is not only one that would occur if there were, for example, an expression of a willingness to plead guilty, it is one that would occur and commonly does occur where the Officer of the Director of Public Prosecutions thinks that for some reason the charge as originally framed, for example by a police officer, was not the most apt charge?

MR LAMPRATI: Yes, that happens too.

GLEESON CJ: In the case of somebody other than a child, provided there is no problem about whether procedural fairness is affected, the District Court or the Supreme Court just goes ahead and deals with the charge as framed by the Director of Public Prosecutions?

MR LAMPRATI: Yes.

GLEESON CJ: Is it a consequence of the argument that in the case of a child who has been committed for trial that will always mean the matter has to go back to the Children’s Court? In other words, talk about ex officio indictments might distract attention from the ordinary case or the not unusual case of an indictment which simply happens to charge an offence that is different in some respect from the original charge?

MR LAMPRATI: It is different, yes. It is not limited to ex officio, which certainly is normally understood as what takes place when there is no committal. But an indictment’s committal or not – even when there have been substantial committals are often changed, because things are not static. They do not crystallise at the time of the committal. As I pointed out earlier, the case is being prepared, aspects of the evidence may alter, information changes and so on. The common one is forensic material comes in. What was thought previously to be the position has been changed. The original charge may no longer be the most suitable and that is a matter of judgment, of course. The prosecutor makes that judgment and the indictment is framed accordingly.

HAYNE J: Can I just relate his Honour’s questions then to section 31 of the Children’s Act, in particular to 31(3)? Can I attempt to relate the source of proceedings in the present matter to that section? You will need 31 of the Children (Criminal Proceedings) Act before you, I fear, Mr Lamprati.

MR LAMPRATI: Yes, your Honour, I have a lot of paper here.

HAYNE J: All of it very valuable, Mr Lamprati, indeed.

MR LAMPRATI: Yes, your Honour.

HAYNE J: In the facts of this case the appellant was a person who was charged before the Children’s Court with an indictable offence.

MR LAMPRATI: Yes.

HAYNE J: In this case the Children’s Court formed the opinion, did it, that having regard, et cetera, that is, it formed the opinion in (b)(i) and (b)(ii), did it? No?

MR LAMPRATI: No.

HAYNE J: It never got there.

MR LAMPRATI: That was the charge that was withdrawn.

HAYNE J: He was committed to the District Court, was he not?

MR LAMPRATI: Yes.

HAYNE J: Bear with me then on the application of 31(3) because I am not quite sure then that I understand what has happened. Certainly 31(3)(a) was engaged, true, a person was “charged before the Children’s Court with an indictable offence”?

MR LAMPRATI: Yes.

MR SUTHERLAND: If it is not impertinent or not.....of assistance, with respect, that is not correct. What happened was that he was charged with an indictable offence.

HAYNE J: Just so.

MR SUTHERLAND: Just so. He was then separately charged with a serious children’s indictable offence.

HAYNE J: I understand that.

MR SUTHERLAND: What the magistrate heard was the serious children’s indictable offence. He heard no evidence in relation to the indictable offence.

HAYNE J: Let me just bear with you, Mr Lamprati, and the reply can come later.

MR LAMPRATI: Yes, your Honour.

HAYNE J: He was charged with an indictable offence. At that point was he on two charges, one indictable and one serious children’s indictable?

MR LAMPRATI: Yes. If I may continue, the magistrate committed on the serious children’s indictable offence - - -

HAYNE J: And the first was withdrawn?

MR LAMPRATI: - - - but then asked the prosecutor, “What about the other one?” The prosecutor said, “I withdraw it”.

HAYNE J: And it was withdrawn.

MR LAMPRATI: Yes.

HAYNE J: But the (3)(b) opinion, was that formed?

MR LAMPRATI: No.

HAYNE J: You never got to (3)(b)?

MR LAMPRATI: No.

HAYNE J: Because it was a serious offence that was the subject of the hypothesis?

MR LAMPRATI: Yes, it only arises in the other - - -

HAYNE J: Yes, I see.

MR LAMPRATI: I am reminded that it was withdrawn before submissions were made.

GLEESON CJ: But after the evidence was heard?

MR LAMPRATI: Yes.

GLEESON CJ: That is the evidence of the complainant?

MR LAMPRATI: No, the brief was tendered, as it were. Evidence was called from a forensic expert and she was cross-examined. The defendant did not give evidence, no submissions were put by the defence and the magistrate formed the opinion in respect to the serious charge and the other matter was withdrawn.

GLEESON CJ: All the magistrate had before him was the written evidence of the complainant, the written statement?

MR LAMPRATI: Yes, he had the brief. It was actually called that in the transcript.

HEYDON J: Mr Lamprati, can I ask you a question about these events you have just been talking about? The magistrate said, “I will withdraw that and discharge the defendant”?

MR LAMPRATI: Yes.

HEYDON J: That attracts the operation of section 208 of the Criminal Procedure Act 1986, does it? The matter was “withdrawn by the prosecutor”, “the matter” was “taken to be dismissed and the accused person” was “taken to be discharged”. Do you have 208 of the Criminal Procedure Act?

MR LAMPRATI: Yes.

HEYDON J: If you could look at section 205, would it have been possible for the court to have given the accused a certificate certifying that the matter had been dismissed?

MR LAMPRATI: I am not sure that it applies, your Honour. It appears from section 170, your Honour, that it does not apply in the Children’s Court.

GLEESON CJ: Mr Lamprati, after lunch could you answer this question: why, in the present case might it have been that the prosecution did not maintain both charges against the appellant, and if that had happened before the magistrate where would that have left the magistrate in relation to the exercise of powers under section 31? We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Lamprati. Mr Lamprati, one of the cases that I had in mind before lunch, and I am sure the same was said in a number of cases, was Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520. It was a joint judgment of Justice Kirby and Justice Wood and Justice Badgery-Parker in which the Court of Criminal Appeal held that magistrates do not have power to commit people for trial on specified charges and that if a magistrate does identify a particular offence for the purpose of determining whether or not a jury would be likely to convict, the identification of the offence does not limit the prosecution’s power to put the defendant up for trial on another offence.

MR LAMPRATI: Yes.

GLEESON CJ: How that general background relating to what goes on at a committal and what the function of a committing magistrate is relates to a legislative scheme that distinguishes between indictable offences and serious children indictable offences is another matter.

MR LAMPRATI: Yes. Your Honour, before the luncheon adjournment I was asked a question to the effect that if in the present case the DPP had continued with the other charge, other than the serious indictable offence, the situation is that the serious indictable offence would have gone to the District Court because it had to. The other offence would have been a matter for the magistrate to assess. If he found that he could properly deal with it then the charge would remain in the Children’s Court and as we understand it there is very little that the DPP could do about that so you could have parallel proceedings because as I understand the legislation it is a matter of jurisdiction. That is what is contended if it - - -

GUMMOW J: Parallel proceedings with potentially different outcomes?

MR LAMPRATI: Yes, and all sorts of complicating factors, whichever finishes first, because in this case the factual matrix was pretty much the same. You might have problems with pleas in bar and that sort of thing, depending on which one finishes first and the facts concerned are considered.

KIRBY J: Did you give thought over the luncheon adjournment to the question Justice Heydon asked you about sections 205 and 208 of the Criminal Procedure Act, because that interests me.

HEYDON J: Justice Basten seemed to think that, despite the answer you gave before lunch, section 206 did apply. He said that in paragraph 30 on page 83. If you have a regime - to be found in Part 2 in which sections 206, 208 and 205 appear - which operates in four other courts and proceedings prescribed by the regulations, it is a little strange that there is not an equivalent one for the Children’s Court.

MR LAMPRATI: Yes.

HEYDON J: It is a good thing that “withdraw” and “dismissal” can generate a certificate which can operate as a defence to any later proceedings in any court for the same matter against the same person in those courts. It is a little strange that there is not an equivalent mechanism for the Children’s Court.

MR LAMPRATI: On our reading it appears that way, your Honour.

HEYDON J: How did Justice Basten come to commit this grave error then, because it seems to be part of his reasoning?

MR LAMPRATI: Yes, it may be simply a mistake, with great respect to his Honour.

HEYDON J: There is no other body of rules that applies to the Children’s Court where we might find an equivalent to section 206?

MR LAMPRATI: Not that we know of, your Honour, but could we put that on the list for my seven day homework and we will double check it?

HEYDON J: Yes.

HAYNE J: I think that the answer to it will involve, I do not think it will be limited to, but it will involve close examination of the ways in which Chapter 4, particularly Parts 2 to 4 of the Criminal Procedure Act, engage with the children’s legislation primarily for the reasons identified by Justices Heydon and Kirby about the application of this certificate, secondarily, though, because “court attendance notice” now has the definition that it has in section 3(1) of the Criminal Procedure Act and at least the limited research attempted over lunch did not reveal any regulation of a kind contemplated by 170(2)(e) of the Criminal Procedure Act that somehow brought the Children’s Court into play.

Now, that is a further or more particular subset of a general issue that is presented by those extrinsic materials that I assume your side of the record has supplied us with, being the Children (Criminal Proceedings) Amendment Bill 1987 explanatory note and the Bill because, when I go to the Bill, I find in 8(1) something that lends on its face a deal of weight to your reading of 8(1):

should not be commenced against a child otherwise than by way of summons or attendance notice -

as though it is concerned not with questions of jurisdiction but manner of commencement and that finds, no doubt, some support in the explanatory note and the passage you read to us.

MR LAMPRATI: Yes, your Honour.

HAYNE J: But when you go to the Bill it seems then to have been intersecting with the Justices Act not, of course, of the Procedure Act and who knows what little problems have been lost between the cracks in the intersection between all of these frequently amended bits of legislation. I just do not know and short of sitting down Act upon Act upon Act tracing it through, I am not sure that we are going to be left knowing quite how this has come about and I think that is a task at least your side of the record should undertake and perhaps the other side of the record may wish to undertake.

MR LAMPRATI: Yes. We will certainly do our best, your Honour. Your Honours, unless there is anything more, those are my respectful submissions.

GLEESON CJ: Thank you, Mr Lamprati. Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, there are a couple of things which I would like to take up if I may. The first is in relation to the question that Justice Heydon posed in relation to the certificate. Certainly that was not a point that was debated before the Court of Criminal Appeal and I think that his Honour Justice Basten expressed those views from his own research of the Criminal Procedure Act. I made some inquiries over lunch and I understand that a certificate has in fact been applied for, which I have not been briefed with, but I understand - - -

HEYDON J: Under what provision?

MR SUTHERLAND: Purportedly, I presume, under the Criminal Procedure Act. Now, whether that means it is a valid certificate and what effect it is, can I just tell your Honours that in the period over lunch, I looked at the notes in the Criminal Practice and Procedure NSW, the Johnson and Howie Butterworths publication and their Honours, or at least whoever put this editorial note, traced through in the notes to section 208 the effect of withdrawal of the matter and the different situation that pertained under the previous Justices Act and their Honours or whoever wrote the note said “Resolution of the question whether withdrawal of a matter under section 208 bars the bringing of further proceedings for the same offence may involve consideration of section 86 of the repealed Justices Act” and they cite a number of cases.

I must say, for my part, I have not looked at that. I will certainly do so to the extent that it carries any moment, but I must say this, Justice Heydon, that whatever the effect of it either is or is not, it really does not have any role to play in the question of principle that your Honours are called upon to deal with because if, for argument’s sake, it did operate as a plea in bar, it would do so within the District Court or in the Children’s Court. It would make no difference. So it matters not whether it goes up or down.

HEYDON J: But is not the history this? We start with the court attendance notice on page 4 which was not a charge of a serious children’s indictable offence. That was withdrawn and if sections 205 to 208 operated would you not have an argument that having gone to the District Court on the more serious charge which was there withdrawn and a reversion back to a non-serious children’s indictable offence, section 206 prevents that happening. So that would be an argument for saying that Justice Basten was correct but, indeed, on a ground different from those he expressed.

MR SUTHERLAND: Yes.

HEYDON J: The fact that a certificate has not been applied for - - -

MR SUTHERLAND: I believe it has.

HEYDON J: But whether it has or it has not, even if it has not been granted it would seem strange that the prosecution should be allowed to proceed in the face of legislation of this kind, but if Mr Lamprati is right that there is no legislation of this kind, then the argument obviously cannot run.

MR SUTHERLAND: Indeed. That of course raises the question that the Chief Justice posed before lunch that Mr Lamprati was answering immediately after the break and that is what was the situation if both charges were on foot? It does raise a conundrum because the manner of proceeding, if one proceeds as a summary hearing, was fundamentally different to the manner of proceeding if it proceeded as a committal.

So what the prosecution were faced with, because of this clear dichotomy or delineation between a 61J non-serious children’s indictable offence and a 61J serious children’s indictable offence, was a decision that the prosecution had to make at the Children’s Court as to whether they wanted to proceed on a circumstance of aggravation that had to be dealt with at law and that had to be proceeded with by way of committal which meant that the complainant would not be exposed to cross-examination in the Children’s Court but the brief would be tendered and such witnesses as were required and made available pursuant to the relevant statutory provisions that govern that would be the only ones that would be cross-examined and that is what happened.

The alternative was to say, well, maybe we cannot prove the circumstance of aggravation, the serious one, and this was not being run by a police prosecutor. This was being run by a representative of the Director’s office, as these matters are. Maybe what we should do – I say rhetorically – is we should proceed with the 61J(2)(d) offence, and if that decision had been made then that would have proceeded as a summary hearing.

Can I immediately pick up, Justice Hayne, an observation that fell from you in the discussion with my learned friend, Mr Lamprati, that prima facie 31(3) and 31(5) appear to be inconsistent. They are not, your Honour, for this reason; that in requiring the proceedings to be “shall be dealt with summarily”, that is the position from the commencement of the hearing until the end of the prosecution case. So any procedural matters that affect committal proceedings do not apply. It is a summary hearing and witnesses are called, witnesses are cross-examined.

At the end of the prosecution case, and not before, the magistrate then determines, as the second step, will I now – because of what I have heard – discharge the defendant? Will I hold that there is a prima facie case? If so, am I of the opinion that it can suitably dealt with in the facts that have been exposed before me as a summary hearing, or do I at this stage convert, as it were, what I have heard, which has to this stage been a summary hearing. I will deal with it as if a committal and take the evidence on the summary hearing and deal with it as a committal and decide to commit for trial, but up until that point, it must be dealt with.

That is the mandatory provision, and that is where there is no inconsistency, Justice Hayne, because it is not until that point that the decisions that are set out in 31(3) and/or 31(5), or if there is a plea of guilty at an earlier stage it might be, for example, to take a practical and specific example, that after hearing the evidence of a complainant and after seeing that he or she stands up to cross-examination and comes across in a meritorious and credible fashion, that a defendant at that point may decide to throw up his or her hands and plead guilty, and from that point the magistrate determines, pursuant to 31(5) how to deal with it.

Up until that stage, it is a summary hearing and they do not run, in my respectful submission, parallel with the notion that you could be running two separate lots of proceedings on the same allegation – I suppose hypothetically one might, but it frankly defies not only experience but really imagination. I mean, really, the prosecution would say either we are going to run with this circumstance of aggravation that transmutes, transmogrifies, converts it from an indictable offence to “a serious children’s indictable offence” or we are not, and it is there that one identifies what the legislature did.

What the Parliament did, which is not to be found in a Crimes Act in this section applying to any other class of society, was to say, if there is an allegation of non-consensual intercourse between two children and the only circumstance of aggravation is that the boy or the girl - whichever it happens to be is the complainant – is under the age of 16 then the question of whether or not that should proceed to a trial will be determined by a magistrate after a summary hearing of the prosecution case. In other words, the magistrate gets what a committing magistrate in the Local Court, if it were an adult that was charged with the offence, would not get, that is, an opportunity to assess the credibility of the complainant.

Given the whole casual – and I say that – perhaps it is not the most appropriate word – but the relaxed manner of proceeding in a Children’s Court, there is perhaps very good reason for that, but the Parliament have specifically, as I say, identified that as a completely different category of offence.

GLEESON CJ: Another way of putting the same point with a slightly different emphasis is that what is important is not so much the opportunity of the magistrate to assess the credibility of the claimant, but the filter provided by section 31(3)(b)(ii). That is to say that in respect of indictable offences that are not serious children’s indictable offences, section 31 provides for an assessment by a Children’s Court Magistrate of whether it is a matter that may properly be disposed of in a summary manner or it is a matter that ought to go for trial, according to law.

MR SUTHERLAND: Yes, and only after a hearing of the prosecution evidence as a summary hearing so that the procedures that permit the sort of shortcuts that have been legislated over the past 15 or so years to simply tender statements, to tender briefs, to take the shortcut way of deciding whether or not there is a case to go to a jury, that does not apply to children in relation to a non-serious children’s indictable offence.

GLEESON CJ: Section 31(3)(b) contains that same indefinite article, “an” indictable offence, so if a magistrate in a Children’s Court is dealing with a charge of an indictable offence and having gone through these procedures decides that there ought to be a committal, the magistrate does not commit the person for trial on a specific offence, the magistrate commits the person for trial and it is for the prosecutor at the trial to decide what the precise charge will be.

MR SUTHERLAND: Your Honour, I confess to needing to refresh my memory in relation to Kolalich. The reality is that where a magistrate decides that he or she will not commit on the charge that is before the court, in the ordinary course they used to have somebody recharged and it may be that as a matter of principle that they are simply committing for an indictable offence but it is not done in that fashion. One is committed in relation to an identified offence.

GLEESON CJ: It is asserted against you, as a matter of practice, first of all, that magistrates when they commit are not bound by the precise charge as formulated by the prosecutor. That was a well-known trap for young players at committal proceedings. Secondly, that when the magistrate has committed, the prosecutor is not bound by the charge that attracted the magistrate as the one on which a jury is likely to convict.

MR SUTHERLAND: In real terms, though, your Honour, what that tends to mean is that if, for example, a circumstance of aggravation there is simply no evidence about it. Take the present case as an example. You might say, “Well, look, such and such an injury did not occur in that fashion. It occurred in a different fashion. All I say happened was X”. In that circumstance the magistrate would probably say, “Well, of the particularised charge that I have here I am not satisfied there is a prima facie case in relation to that. I discharge in relation to that. However, I am satisfied that there is an offence of XYX”.

They do not simply stand there the way a coroner does and say, “I am satisfied that there is an indictable offence committed by a known person” without identifying the offence - - -

GLEESON CJ: They have to do that in practice because they have got to decide whether a jury would be likely to convict.

MR SUTHERLAND: Indeed.

GLEESON CJ: That is what was dealt with in Kolalich, but your argument if it is otherwise correct can accommodate this, can it not - - -

MR SUTHERLAND: Yes, it can, your Honour.

GLEESON CJ: - - - by saying that this regime for children distinguishes between indictable offences and serious children’s indictable offences and, although a magistrate who decides to commit for trial for an indictable offence is not bound by the precise charge that has been laid by the prosecutor and although if the magistrate commits, the prosecutor in the District Court or the Supreme Court is not bound by any specified charge that might have occupied the attention of the magistrate, nevertheless, in relation to indictable offences that are not serious children’s indictable offence, there is a filter mechanism, whatever the particular offence may be, that has to be applied, that is to say, the mechanism of the magistrate considering whether the charge can properly be disposed of summarily.

MR SUTHERLAND: Yes, your Honour, I agree. Your Honours, the variations on what might, in fact, occur are multifarious but, I mean, one might have a situation, for example, where, take the present case, a committal for a serious children’s indictable offence, and let us hypothesise that the complainant had a conference with whoever the learned Crown Prosecutor was that was going to run the trial and confessed that what she had said about the act of intercourse was wrong, that that was not what had taken place but that something different had occurred, the notion that it would thereby simply proceed as a trial on that different allegation rather than go back to the Children’s Court to have a charge of whatever the allegation now is dealt with, in my respectful submission, is almost inconceivable.

The one other point that I wanted to make, picking up the question of the use of the term “if” in the Children’s Court and so on, the simple fact of the matter is that in this particular case the boy, PM, was before the Children’s Court; he was charged with an indictable offence and it did not proceed in a summary fashion and, yet, having decided to run the serious children’s indictable offence and have him committed for trial on that, when the ultimate prosecutor gets it at trial, that committal charge being a serious children’s indictable offence is jettisoned for whatever reason.

I certainly do not suggest anything untoward in relation to it. It seems to me objectively that there were obviously going to be question marks about it even on the account of the complainant. But then what is sought to be – I do not know whether “resurrect” is the correct description, but, in effect, novated is the charge that had originally been laid and in respect of which the mandated procedure had not been followed. That is the reason that I, as I say, opened with the quote of yours, Chief Justice, in relation to the procedures being bypassed. I do not mean anything wrong in saying that, but that is the cause and effect of what has happened.

We respectfully submit that, as I outlined at some length before lunch, considering the protective nature of this legislation and the special reasons for it and looking at that clear and unarguable delineation of an offence under section 61J(2)(d) where it is taken out of the categorisation of which would otherwise be viewed as one offence, 61J, in fact, I am fairly certain – I do not have it at the tip of my fingers – but I am fairly certain that there is a decision involving an adult in the New South Wales Court of Criminal Appeal where Justice Howie gave the leading judgment in which it was determined that 61J identified one offence with different particulars
and that it was not a question of it being different offences. It is one offence of 61J but different ways of particularising it. But what the Children (Criminal Proceedings) Act has done is to quite clearly categorise manners of committing that offence, or one manner of committing that offence as a completely different category so far as procedure is concerned.

GLEESON CJ: It is not surprising, as a matter of legislative policy, that whereas the young age of a complainant might be an aggravating circumstance where the alleged offender is an adult, it is not an aggravating circumstance or - - -

MR SUTHERLAND: Not as serious.

GLEESON CJ: - - - not as serious a matter of aggravation where the complainant and the accused person are of approximately equal age.

MR SUTHERLAND: Chief Justice, that is precisely the reason legislatively, we would say, that when one goes to those table 1 and table 2 offences that may, under the Criminal Procedure Act, be dealt with summarily in certain circumstances, 61J is not there and that is because if any of those circumstances of aggravation occur in relation to non-consensual intercourse between a child and an adult, then it simply is not something that ought be dealt with summarily. But the legislature has specifically identified non-consensual intercourse between two children as falling into a special category and that is why we are here. Your Honours, unless there is anything specifically that I can further assist with.

GLEESON CJ: Thank you, Mr Sutherland. You will have a further seven days after Mr Lamprati puts in any material to respond.

MR SUTHERLAND: I will pop my head up during the Petroulias trial, your Honour, and see if I can respond appropriately.

GLEESON CJ: The Petroulias third trial.

MR SUTHERLAND: We empanelled the jury yesterday, your Honour, and that is why Mr Walsh is not here today.

GLEESON CJ: Thank you. We will adjourn until 9.30 am tomorrow in Sydney and 10.00 am tomorrow in Canberra.

AT 2.47 PM THE MATTER WAS CONCLUDED