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Supreme Court 13 February 2008

DPP (NSW) v AB & ANOR

[2008] NSWSC 115

Sexual offences
SEXUAL OFFENCES CHILD OFFENDER JURISDICTION OF CHILDREN'S COURT PROSECUTION WITHDRAWN STATUTORY EFFECT CONSEQUENCES OF WITHDRAWAL

Citation: DPP (NSW) v AB & ANOR [2008] NSWSC 115
Court: Supreme Court of New South Wales, Common Law Division
Date: 13 February 2008
Judge(s): Adams J

Background

In September 2004, a 16-year-old male student was issued with two court attendance notices arising from an alleged sexual assault on a 14-year-old female student at a Sydney secondary school. The first charge (sequence 1) alleged sexual intercourse without consent with the complainant's age as a circumstance of aggravation. The second charge (sequence 2) alleged the same conduct but with a more serious circumstance of aggravation, namely the malicious infliction of actual bodily harm.

Because of the nature of the aggravation alleged, the sequence 2 charge constituted a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987, meaning it had to proceed by committal. The sequence 1 charge, by contrast, was not a serious children's indictable offence and was therefore required by statute to be dealt with by summary proceedings in the Children's Court.

At the committal hearing in April 2005, the defendant was committed for trial on the sequence 2 charge. The prosecutor then withdrew the sequence 1 charge, and the Magistrate noted the papers "W/D discharged." The Children's Court Registrar subsequently issued a certificate under s 205 of the Criminal Procedure Act 1986 in respect of the sequence 1 charge. When the Director of Public Prosecutions later sought to proceed against the defendant on the sequence 1 charge by way of ex officio indictment in the District Court, the existence of that certificate emerged as a potential bar to the prosecution.

  • Whether the withdrawal of the sequence 1 charge by the prosecutor engaged s 208 of the Criminal Procedure Act 1986, producing a statutory dismissal and discharge.
  • Whether the Magistrate's notation on the papers constituted an independent dismissal of the charge under s 205.
  • Whether the Registrar had jurisdiction to issue a certificate under s 205, given that the matter had been withdrawn rather than dismissed by a court decision.
  • Whether the s 205 certificate was valid, and whether it could operate under s 206 to bar further proceedings.

Decision

Adams J held that s 208 of the Criminal Procedure Act 1986 operates mandatorily and automatically upon withdrawal of a charge by a prosecutor. Once the prosecutor withdrew the sequence 1 charge, the matter was taken by statute to be dismissed and the defendant was taken to be discharged. No further action by the Magistrate was required or, indeed, within jurisdiction.

The Court rejected the argument that the Magistrate's notation on the papers constituted an independent dismissal under s 205. Even accepting that the Magistrate intended to dismiss the charge, such action was supererogatory once s 208 had taken effect. Adams J considered the better reading of the Magistrate's note to be simply a record of what s 208 had already effected.

Critically, the Court drew a firm distinction between the two pathways in the legislation. Section 205 applies where a court has decided to dismiss a matter following a hearing. Section 208 applies where the prosecutor withdraws a charge. The words "has been dismissed" in s 205(2) refer only to a judicial decision to dismiss, not to the statutory dismissal that arises automatically under s 208. The Registrar had no jurisdiction to issue a certificate under s 205 in circumstances governed by s 208.

Because the certificate was issued without jurisdiction, Adams J declared it void and without effect. This cleared the way for the prosecution by ex officio indictment in the District Court to proceed.

Orders Made

  • The certificate of dismissal issued pursuant to s 205 of the Criminal Procedure Act 1986 is null and void.
  • No order as to costs.

Key Takeaways

  • Under s 208 of the Criminal Procedure Act 1986, withdrawal of a charge by a prosecutor automatically produces both a dismissal and a discharge as a matter of statutory operation, without any further act by the court being required or permitted.
  • Section 205, which empowers a court to make an order of dismissal and issue a certificate with finality-barring effect under s 206, applies only where the court has itself decided to dismiss a matter. It does not extend to the statutory dismissal arising from a prosecutor's withdrawal under s 208.
  • A certificate issued under s 205 in circumstances where a charge was withdrawn (not judicially dismissed) is issued without jurisdiction and is void.
  • The Magistrate's notation of "W/D discharged" on the court papers was interpreted as a record of the s 208 statutory effect, not as an independent judicial decision to dismiss.
  • Adams J observed that, as a matter of good practice, when a matter is withdrawn and s 208 applies, the court papers should specifically reference s 208 to avoid the kind of jurisdictional confusion that arose in this case.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 31
- Criminal Procedure Act 1986 (NSW), ss 205, 206, 208

Cases:
No cases were cited in the text of the judgment.