Tudor-Stack v Lowndes & Chandler [2006] NTSC 16

PARTIES: TUDOR-STACK, Paul Francis

v

LOWNDES, John

and

CHANDLER, Darren James

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM JUVENILE COURT EXERCISING TERRITORY JURISDICTION

FILE NO: SC 4 of 2005 (20500402)

DELIVERED: 15 March 2006

HEARING DATES: 15 March 2006

EX TEMPORE JUDGMENT OF: RILEY J

CATCHWORDS:

REPRESENTATION:

Counsel:
Plaintiff: D N Lewis
1st Defendant: P Turner
2nd Defendant: J Franz

 

Solicitors:
Plaintiff: Office of the Director of Public Prosecutions
1st Defendant: Solicitor for the Northern Territory of Australia
2nd Defendant Northern Territory Legal Aid Commission

 

Judgment category classification: B
Judgment ID Number: ril0606
Number of pages: 6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tudor-Stack v Lowndes & Chandler [2006] NTSC 16
No SC 4 of 2005 (20500402)

IN THE MATTER OF the Juvenile Justices Act

AND IN THE MATTER OF an application against decision handed down in the Juvenile Court at Darwin

BETWEEN:

TUDOR-STACK, Paul Francis
Plaintiff

AND:

LOWNDES, John
1st Defendant

and

CHANDLER, Darren James
2nd Defendant

CORAM: RILEY J

EX TEMPORE
REASONS FOR JUDGMENT

(Delivered 15 March 2006)

[1] The plaintiff seeks an order in the nature of certiorari to quash the order of the first defendant made on 13 July 2004 in the Juvenile Court at Darwin by which he purported to decline to deal with three charges on complaint in a summary way and, in relation to those matters, committed the second defendant for sentence to the Supreme Court. The plaintiff also seeks an order in the nature of mandamus that the matter be remitted to the Juvenile Court with a direction that the three charges be dealt with in a summary way. The first defendant submitted to the jurisdiction and took no further part in the proceedings. The second defendant did not argue to the contrary of the submissions made on behalf of the plaintiff.

[2] It is necessary to set out a short history of the relevant part of the proceedings in this matter in order to understand the claims of the plaintiff.

[3] At the relevant time the second defendant was a juvenile. On 7 April 2004 he was charged on information with 14 separate offences related to the unlawful entry of buildings, the attempted unlawful entry of buildings and further offences committed in relation to those buildings. At the same time the second defendant was charged on complaint with three offences pursuant to the Traffic Act arising out of the commission of the offences referred to in the information. By operation of s 51 of the Traffic Act the three offences were designated regulatory offences.

[4] On 12 May 2004 the second defendant appeared before the first defendant exercising the jurisdiction of the Juvenile Court at Darwin and pleaded guilty to each of the 14 charges on the information and each of the three charges on complaint. On 13 July 2004 the first defendant committed the second defendant for sentence in the Supreme Court on all matters including the three charges on complaint.

[5] On 17 August 2004 an ex officio indictment was filed in the Supreme Court charging the second defendant with the 14 indictable offences and, on 31 August 2004, he pleaded guilty to all counts on that indictment. On 21 December 2004 he came before the Supreme Court and was sentenced to a substantial term of imprisonment. On 22 December 2004 he again appeared in the Juvenile Court with respect to two matters which were unrelated to any of the matters referred to above. At this time the plaintiff and the second defendant sought to finalise the three regulatory offences, the subject of the complaint dated 7 April 2004. On that date the first defendant recognised that he had made an error on 13 July 2004 and frankly acknowledged that to be so. Clearly error occurred.

[6] The power to decline jurisdiction to hear and determine a matter in the circumstances is to be found in s 38 of the Juvenile Justice Act and is limited to indictable offences that the court is empowered to deal with in a summary manner. Section 38(1) of that Act is in the following terms:

“(1) Where a juvenile is charged before the Court with an indictable offence that the Court is empowered to deal with in a summary manner, the Court may, of its own motion or on application by or on behalf of the informant, if it is of the opinion that the evidence has established a prima facie case against the juvenile in respect of an indictable offence, decline to deal with the charge in a summary manner and, in that case, shall, subject to this Act, deal with the charge in accordance with the provisions of the Justices Act relating to indictable offences.”

[7] It is necessary to consider the position of regulatory offences in this legislative scheme. By operation of s 3 of the Criminal Code offences are of three kinds, namely crimes, simple offences and regulatory offences.

[8] Notwithstanding that there is no definition of a crime or a simple offence, the meaning of those expressions can be determined by reference to the Criminal Code and the Justices Act. A person charged with a crime, unless otherwise stated, cannot be prosecuted or found guilty except upon indictment (s 3 Criminal Code). The indictment is, of course, the document which is to be used for the commencement of criminal proceedings in the Supreme Court (s 298 Criminal Code). Section 38E of the Interpretation Act provides that where an Act provides for a penalty of imprisonment for a period of more than two years for an offence the offence is a crime unless expressed to be otherwise. For a discussion of s 38E of the Interpretation Act see Megson v The Queen [2006] NTSC 15.

[9] By operation of s 3(4) of the Code a simple offence is “an offence not otherwise designated”. Section 4 of the Justices Act provides that a simple offence is one “for which a person is liable by law, upon a finding of guilt before a justice or justices, to be imprisoned or fined or both or to be otherwise punished; but does not include an indictable offence which can only be heard and determined in a summary way as a minor indictable offence”.

[10] The third category of offences, and the category with which we are concerned in these proceedings, is a regulatory offence. For the purposes of s 3(4) of the Code a regulatory offence is an offence which is “otherwise designated”. A regulatory offence is one which is specified to be such (s 18 Interpretation Act). Section 51 of the Traffic Act is an example. Generally speaking, the difference between a regulatory offence and a simple offence is that the criminal responsibility provisions of the Code do not apply to regulatory offences.

[11] For present purposes it can be seen that the offences with which the second defendant was charged on complaint were regulatory offences and were therefore not indictable offences for the purposes of s 38 of the Juvenile Justice Act. That section provides the only basis upon which the court may decline to deal with a charge in a summary matter and, as can be seen, has no application in the circumstances of this matter.

[12] As he correctly acknowledged, His Honour erred in declining to deal with the traffic matters referred to in the complaint of 7 April 2004. He erred in purporting to commit the second defendant to the Supreme Court for sentencing in respect of those matters.

[13] When the matter was returned to him following the proceedings in the Supreme Court the learned magistrate was concerned that he may be functus officio. Given that the matters had never been the subject of a determination by the Juvenile Court that was not the case.

[14] In the circumstances it is appropriate that this Court enlarge the time necessary for making the applications, quash so much of the decision of the learned magistrate in which he purported to decline to hear the regulatory matters and order that the matters be remitted to the Juvenile Court to be determined according to law.
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