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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
"RP" v Ellis & Anor [2011] NSWSC 442
Hearing dates:
13 May 2011
Decision date:
19 May 2011
Before:
HOEBEN J
Decision:

(1) I make an order pursuant to section 69 of the Supreme Court Act 1970 in the nature of mandamus quashing the whole of the order for the committal for trial of the plaintiff and remitting the matter to the Children's Court to be determined according to law.

(2) There should be no order as to costs of these proceedings.

Catchwords:
Application for prerogative relief pursuant to section 69 of the Supreme Court Act 1970 or leave to appeal pursuant to section 53(3)(a) Crimes (Appeal and Review) Act 2001 in relation to committal proceedings - failure to exercise jurisdiction by a Magistrate - failure to apply proper test - failure to answer the question that the law prescribed - misunderstanding the true nature and content of the opinion that was required at law to be formed - doli incapax was an element of the offence - failure to consider that issue - order for committal should be quashed and matter remitted to the Children's Court to be determined according to law.
Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act (1986) (NSW)
Summary Offences Act 1988
Supreme Court Act 1970
Cases Cited:
BP v R, SW v R [2006] NSWCCA 172
Potier v Magistrate Maloney [2005] NSWSC 336
Waterhouse v Gilmore & Ors (1988) 12 NSWLR 273 at 278
Category:
Principal judgment
Parties:
RP - Plaintiff
Elizabeth Anne Ellis, Magistrate - First Defendant
The Director of Public Prosecutions - Second Defendant
Representation:
Counsel
Mr C Smith - Plaintiff
Submitting Appearance - First Defendant
Ms A Mitchelmore - Second Defendant
Solicitors
Aboriginal Legal Services (NSW/ACT) Limited - Plaintiff
IV Knight, Crown Solicitor - First Defendant
SC Kavanagh, Solicitor for Public Prosecutions - Second Defendant
File Number(s):
2011/00075244

Judgment

1HIS HONOUR:

Nature of Proceedings

By Amended Summons filed 23 March 2011 the plaintiff sought the following orders:

"1. An order pursuant to s 69 of the Supreme Court Act 1970 in the nature of mandamus quashing the whole of the order for the committal for trial of the plaintiff and remitting the matter to the Children's Court to be determined in accordance with law.

2. In the alternative and pursuant to section 53(3)(a) Crimes (Appeal and Review) Act 2001 that leave to appeal be granted and that the whole of the order for committal for trial of the plaintiff be set aside and that the matter be remitted to the Children's Court to be determined in accordance with law."

Factual background

2On 13 June 2010 the plaintiff was charged with having committed offences contrary to s33 Crimes Act 1900 (maliciously wound with intent to inflict grievous bodily harm) and s11C(1) Summary Offences Act 1988 (custody of a knife). A charge of reckless wounding contrary to s35(4) Crimes Act 1900 was laid subsequently as a back up to the s33 charge.

3The plaintiff was born in February 1997 and was 13 at the time of the alleged offences.

4The plaintiff came before her Honour, the first defendant, for a committal hearing on 9 February 2011. The solicitor appearing on behalf of the second defendant tendered a brief of evidence on the committal. The plaintiff was represented by a solicitor from the Aboriginal Legal Service. The charge of custody of a knife was withdrawn and the committal hearing upon the charges pursuant to section 33 and 35(4) commenced.

5In the course of those proceedings, the solicitor for the plaintiff advised her Honour that an issue in the proceedings was doli incapax, i.e. that because of the age of the plaintiff the Prosecution had to prove beyond reasonable doubt, as an element of the offence, that the young person not only did the acts charged but knew that the acts charged were seriously wrong rather than just mere naughtiness.

6The issue was raised as part of the following exchange:

"SOLICITOR: Well your Honour, there's an issue in my submission, there's an issue of doli incapax in my submission there's nothing in the brief that would rebut that presumption.

HER HONOUR: Okay, is that something this Court can deal with?

PROSECUTOR: I don't think it is your Honour.

HER HONOUR: That's my preliminary view Mr Behan. I'm happy to revisit it. A committal is a peculiar beast. I often feel that I'm a fifth wheel, that many of the matters I have to deal with are more administrative than judicial and of course I'm not able to exclude evidence, and isn't that what you would be asking me to do?

SOLICITOR: No, in my submission I wouldn't be asking you to exclude it. It's in my submission rebutting the presumption of doli incapax is an element of the offence and the Prosecution would have to have some evidence to rebut or otherwise there would be no prima facie case.

HER HONOUR: Yes, but if I find - If I was to deal with it and find there is an issue as to doli incapax, would I therefore not be excluding all or a substantial part of the Crown evidence?

SOLICITOR: Not in my opinion your Honour it wouldn't be."

7When her Honour had read the Crown brief the following exchange occurred:

"HER HONOUR: The charges of wound person with intent to cause grievous bodily harm is a serious children's indictable matter. Do you maintain your argument Mr Behan?

SOLICITOR: Yes I do your Honour. I'll just state my argument again. In my submission the issue of doli incapax is not an evidentiary matter. I'm not asking your Honour to exclude any evidence. In my submission the presumption of doli incapax is an element of the offence that the Crown must prevail. Just as in - or similar to, if there was a charge of break enter steal, break would be an element that the Crown would need to prove in my submission. It's not an evidentiary matter as in I'm not asking your Honour to exclude any evidence. In my submission the Crown must rebut the presumption as an element of the offence.

HER HONOUR: Mr Grey?

GREY: It's a serious indictable offence your Honour, dealing with it according to law. This is a committal proceeding and your Honour has to fulfil the test under section 62 and section 64. The Crown would say that doli incapax doesn't apply in relation to this matter.

HER HONOUR: What concerns me is that the Court has no jurisdiction to deal with a serious children's indictable offence to finality. That's as stated in section 3 and 17 and also clause 29 of the Children (Criminal Proceedings) Regulations. Other indictable offences may be dealt with according to law or under the Children (Criminal Proceedings) Act , but the fact that there is an embargo in my opinion doesn't allow me to deal with an issue that would be exclusionary of evidence that can be presented. It is a matter that must be dealt with at the next appropriate jurisdiction and not one that I can say because there is insufficient evidence, the balance of the material cannot be dealt with. And it's for that reason I am of the opinion that the matter must be, if the pleas are maintained, submitted to the District Court ..."

8Her Honour then committed the plaintiff for trial.

9No bill of indictment has been found pending the outcome of these proceedings.

Consideration

10When the matter came before the Court the parties agreed that error had occurred and that the matter should be returned to the Children's Court to be dealt with according to law. However, the parties requested that the Court provide reasons, albeit briefly, for so doing.

11I am satisfied that her Honour's decision is affected by legal error. The error is of such a kind that the plaintiff is entitled to relief, both under s 69 of the Supreme Court Act 1970 and pursuant to s 55(3) of the Crimes (Appeal and Review) Act 2001. Under the latter Act, I would grant leave pursuant to s53(3)(a).

12In Potier v Magistrate Maloney [2005] NSWSC 336 Johnson J set out the relevant legal principles where relief of this kind is sought. His Honour said at [42] - [48]:

"42 The onus of proof lies upon the Plaintiff to establish, on the balance of probabilities, the facts which are said to give rise to an entitlement to prerogative relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259. Likewise, the onus lies upon the Plaintiff to establish the facts in support of a claimed entitlement to relief under a statutory appellate provision such as s.53(3) Appeal and Review Act.

43 A magistrate's decision as to whether or not he will commit for trial is purely executive and it is not accessible to correction by the Supreme Court in the exercise of its supervisory jurisdiction by way of certiorari: Ex Parte Cousens; re Blacket (1946) 47 SR 145 at 146-7; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275-6; Potier v Director of Public Prosecutions (2001) 123 A Crim R 176 at 179-180.

44 Relief in the nature of mandamus is available with respect to committal proceedings where there is an actual or constructive failure to exercise jurisdiction: Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 399, 418-420. Mandamus is a discretionary remedy: Saffron , above, at 402, 420; Potier , above, at 182.

45 Section 53(3) Appeal and Review Act provides an avenue for appeal, by leave, with respect to an error of law made in committal proceedings. Where the error of law is said to apply to an order of committal for trial which has already been made, and where a bill of indictment has been found, discretionary considerations apply to the granting of leave of the type considered in V v McDonald (Court of Appeal, 16 February 1995, unreported).

46 The holding of committal proceedings is not a necessary prerequisite to a trial on indictment: R v Butler (1991) 24 NSWLR 66 at 68; V v McDonald , above, at pages 4-5, 6. Likewise, the holding of committal proceedings which are free of irregularity is not a necessary prerequisite to a trial on indictment: R v Butler , above, at 74.

47 It is necessary to bear in mind the nature and purpose of committal proceedings. The proceedings are executive or ministerial in nature and do not determine guilt: R v Butler , above, at 68. A decision by a Magistrate to discharge a defendant in committal proceedings does not give rise to a plea in bar by way of autrefois acquit. Even if a discharge occurs, it is open to the Director of Public Prosecutions to find a bill of indictment and maintain a prosecution of the person on indictment: Grassby v The Queen (1989) 168 CLR 1 at 13-14.

48 From time to time, this Court has granted relief in the nature of mandamus with respect to committal proceedings, where a factual foundation has been established for such relief and there are no discretionary reasons for withholding relief. Relief has been granted in cases (usually with respect to s.48E orders) where there has been no order of committal for trial, let alone a bill of indictment being found: see, for example, McKirdy v McCosker (2002) 127 A Crim R 217."

13In support of the relief sought in the summons, the plaintiff has advanced a number of grounds. I propose to deal only with the principal ground.

14The issue before her Honour was whether to commit the plaintiff for trial. The committal process is described in Division 2 of Part 2 of the Criminal Procedure Act (1986) (NSW) (CPA). Sections s 62 - 64 CPA set out the steps involved in deciding whether to commit a defendant for trial.

15First, pursuant to s62(1), the Magistrate must take the prosecution evidence in accordance with Division 3, and determine "whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence". If, after all of the prosecution evidence is taken, the Magistrate is not of the opinion that "having regard to all of the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence", s62(2) requires the Magistrate to discharge the accused person.

16If the Magistrate is not of that opinion, s63(1) requires the Magistrate to give the accused person an opportunity to answer the charge, giving a warning in the form prescribed by the rules. Section 64 then requires the Magistrate to consider "all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence."

17In this case her Honour failed to exercise jurisdiction by not applying the proper test, by not answering the question that the law prescribed and by misunderstanding the true nature and content of the opinion that she was required at law to form or not form pursuant to sections 62 - 64 CPA. On this issue, Hunt J said in Waterhouse v Gilmore & Ors (1988) 12 NSWLR 273 at 278:

"I see no relevant distinction between an error basically as to where the onus of proof lies and a misunderstanding as to the proper interpretation of a Magistrate's obligation to discharge a defendant pursuant to the Justices Act , section 41(6). The latter was held to be a constructive failure by the Magistrate to exercise his jurisdiction, in Wentworth v Rogers (at 433, 440); in Carlan v Thawat Chidkhunthod (Chid's case) (1985) 4 NSWLR 182 at 222 - 223 and in Hilton v High (at 20 - 21). In my view an error as to where the onus of proof lies (and whether a prima facie case has been established, where that decision depends upon where the onus of proof lies) are similarly constructive failures by a Magistrate to exercise his true jurisdiction."

18Doli incapax was clearly an element of the offence and as such was a matter which her Honour had to take into account in forming her conclusions under sections 62 - 64 CPA. That this is so is clear from BP v R , SW v R [2006] NSWCCA 172 where Hodgson JA (Adams and Johnson JJ agreeing) said:

"[27] The common law concerning the criminal responsibility of children has been modified in New South Wales by s5 of the Children's (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence) but not otherwise. Accordingly, as regards a child between 10 and 14 years, there remains a presumption that such a child is doli incapax, that is incapable of committing a crime because of lack of understanding of the difference between right and wrong and consequential lack of mens rea. It is clear that when a child between 10 and 14 years is accused of a crime, the onus is on the prosecution to prove beyond reasonable doubt not only that the child did the act charged, accompanied by the necessary mental element, but also that when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v M (1977) 16 SASR 589; C v DPP (1994) UKHL 2; [1996] 1 AC 1 at 38; R v CRH NSWCCA 18.12.96; R v ALH [2003] VSCA 129; [2003] 6 VR 276."

19What the Crown had to prove in this case, along with the specific elements of the offence, was that the plaintiff not only did the act charged but when she did that act, she knew that it was a "wrong act as distinct from an act of mere naughtiness or childish mischief".

20As the exchanges between the solicitor for the plaintiff and her Honour in the transcript make clear, there was a misunderstanding on her Honour's part as to the operation of doli incapax as an exclusionary rule of evidence, as opposed to a presumption to be rebutted by the Crown on all of the evidence before the Court. When her Honour considered herself unable to consider the issue because it would lead to the exclusion of evidence, she was asking herself the wrong question.

21It follows that in asking the wrong question on that issue and in declining to consider doli incapax in the context of the committal proceedings, her Honour's consideration of the matters prescribed in sections 62 - 64 CPA was attended by error, amounting to a failure to exercise jurisdiction. In circumstances where the jurisdiction to commit has not been performed, an order in the nature of mandamus would lie under s69 of the Supreme Court Act directing the Magistrate to determine the committal proceedings according to law or alternatively, the order could be set aside under s55(3)(a) of the Appeal and Review Act .

22The parties have agreed that there should be no order as costs.

Orders:

23The orders which I make are as follows:

(1) I make an order pursuant to section 69 of the Supreme Court Act 1970 in the nature of mandamus quashing the whole of the order for the committal for trial of the plaintiff and remitting the matter to the Children's Court to be determined according to law.

(2) There should be no order as to costs of these proceedings.

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Decision last updated: 20 May 2011