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5
Court of Criminal Appeal 13 September 2006

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v PM

[2006] NSWCCA 297

Also reported as 164 A Crim R 151
Sexual offences
PRACTICE & PROCEDURE CRIMINAL PROCEEDINGS AGAINST A CHILD JURISDICTION

Citation: Director of Public Prosecutions (NSW) v PM [2006] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 13 September 2006
Judges: Basten JA (dissenting); Whealy J; Latham J

Background

The respondent, a child at the time of the alleged offences, faced charges of aggravated sexual assault in the Children's Court. The Director of Public Prosecutions (DPP) withdrew the first charge, and the Children's Magistrate committed the respondent for trial on the second charge, which alleged a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW).

In the District Court, a second indictment was filed containing three charges, each of which was capable of summary disposition in the Children's Court and none of which constituted a "serious children's indictable offence." After the respondent was arraigned and trial commenced, the trial judge discharged the jury and remitted the matter to the Children's Court, finding that the second indictment failed for want of jurisdiction.

The DPP appealed against the order of remittal to the Court of Criminal Appeal.

  • Whether the DPP could lawfully file an ex officio indictment in the District Court against a child for an offence that was not a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987 (NSW)
  • Whether section 31 of the Children (Criminal Proceedings) Act 1987 (NSW) and section 8 of the Criminal Procedure Act 1986 (NSW) together operated to limit the DPP's indictment power to serious children's indictable offences only
  • Whether the trial judge's order of remittal was validly made under section 44 of the Children (Criminal Proceedings) Act 1987 (NSW)
  • Whether the DPP's appeal was properly brought under section 5C or section 5F of the Criminal Appeal Act 1912 (NSW)

Decision

The Court of Criminal Appeal allowed the appeal by majority (Whealy J and Latham J), with Basten JA dissenting.

Validity of the ex officio indictment (majority): Latham J, with Whealy J agreeing, found that even the first indictment had effectively been an ex officio indictment because the committal proceedings were defective: the Court Attendance Notice had described an aggravating circumstance unknown to the law, failing to identify an essential factual ingredient of the offence. Despite this defect, the DPP retained the power to present an indictment, as the court cannot go behind the issue of an ex officio indictment, and no abuse of process arises unless unfairness to the accused at trial is established.

Scope of section 31 (majority): The majority held that section 31 of the Children (Criminal Proceedings) Act operates only to direct the Children's Court in the exercise of its own jurisdiction. It does not limit the jurisdiction of the District Court or Supreme Court, and it does not confine the DPP's power to indict to serious children's indictable offences alone. The ex officio indictment was therefore procedurally valid.

Section 44 remittal order: Both Latham J and, tentatively, Basten JA agreed that the remittal order made by the trial judge was not validly made under section 44. That provision, read in the context of Part 4 of the Act, operates only where the want of jurisdiction relates to the defendant's age, not where it arises from the nature of the offences charged.

Dissent: Basten JA took the contrary view on jurisdiction, holding that the combined effect of section 8 of the Criminal Procedure Act and section 31 of the Children (Criminal Proceedings) Act meant the DPP had no power to file an ex officio indictment for an offence other than a serious children's indictable offence. In Basten JA's view, all offences that are not serious children's indictable offences must be dealt with summarily in the Children's Court. On the appeal pathway question, Basten JA agreed with the majority that the appeal properly lay under section 5C of the Criminal Appeal Act 1912.

Orders Made

  • Appeal allowed.
  • Order of McGuire DCJ remitting the matter to the Children's Court, made on 15 March 2006, is set aside.

Key Takeaways

  • Section 31 of the Children (Criminal Proceedings) Act 1987 (NSW) governs the Children's Court's exercise of its own jurisdiction; it does not restrict the jurisdiction of the District or Supreme Courts or limit the DPP's power to present an ex officio indictment against a child.
  • The DPP retains the power to present an indictment in the District Court notwithstanding defects in committal proceedings, including where a child has been discharged at committal, provided no unfairness to the accused at trial results.
  • Section 44 of the Children (Criminal Proceedings) Act 1987 (NSW) authorises remittal to the Children's Court only where the asserted want of jurisdiction arises from the defendant's age; it does not extend to remittals based on the nature of the offences charged.
  • An appeal against the effective quashing of an indictment by a District Court judge properly lies under section 5C, not section 5F, of the Criminal Appeal Act 1912 (NSW).
  • This decision was decided by majority on a 2-1 split. Basten JA's dissent reflects a genuine ambiguity in how the Children (Criminal Proceedings) Act interacts with the DPP's general indictment powers, and the majority and dissenting positions should be read together to understand the competing statutory interpretations.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 4, 5, 6, 7, 8, 11, 26, 27, 28, 31, 43, 44, 47, 48, 49
- Criminal Procedure Act 1986 (NSW), ss 3, 4, 5, 6, 7, 8, 9, 15, 16, 17, 20, 21, 22, 27, 45, 50, 127, 130, 155, 205, 206, 208, 260, 263, 264
- Criminal Appeal Act 1912 (NSW), ss 5C, 5F
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C, 423
- Director of Public Prosecutions Act 1986 (NSW), ss 7, 33
- District Court Act 1973 (NSW), s 8
- Interpretation Act 1987 (NSW), ss 21, 34, 35

Key Cases:
- Bartalesi and Fragassi (1997) 93 A Crim R 274
- Barton v The Queen (1980) 147 CLR 75
- Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602
- Grassby v The Queen (1989) 168 CLR 1
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172
- Lodhi v R [2006] NSWCCA 121
- Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369
- Pelechowski v Registrar of the Court of Appeal (NSW) [1999] HCA 19
- R v Janceski [2005] NSWCCA 281