PM v The Queen [2007] HCA 49

HIGH COURT OF AUSTRALIA

GLEESON CJ

KIRBY, HAYNE, HEYDON AND CRENNAN JJ

PM APPELLANT

AND

THE QUEEN RESPONDENT

PM v The Queen

[2007] HCA 49

8 November 2007

S217/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

R F Sutherland SC for the appellant (instructed by Fox O'Brien)

L M B Lamprati SC with N F Noman for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

PM v The Queen

Criminal procedure – Crimes and offences by children – Jurisdiction – A child was charged with a "serious children's indictable offence" as well as lesser offences – The child's committal hearing was in the Children's Court of New South Wales, but the proceedings were remitted to the District Court because the Children's Court did not have jurisdiction to deal with the "serious children's indictable offence" – In the District Court the prosecutor did not proceed with the "serious children's indictable offence" – Whether the District Court was required to remit the proceedings back to the Children's Court for determination – Whether the District Court had jurisdiction to deal with charges against a child not involving a "serious children's indictable offence".

Criminal procedure – Crimes and offences by children – Powers of the New South Wales Director of Public Prosecutions with respect to filing an indictment against a child.

Words and phrases – "serious children's indictable offence".

Criminal Procedure Act 1986 (NSW), s 8.

Children (Criminal Proceedings) Act 1987 (NSW), ss 7, 8, 26, 28, 31, 44.

1. GLEESON CJ, HAYNE, HEYDON AND CRENNAN JJ. The Children (Criminal Proceedings) Act 1987 (NSW) ("the CCP Act") makes special provision with respect to the conduct of criminal proceedings against children. The CCP Act differentiates between a "serious children's indictable offence" and other indictable offences. 2. The Children's Court of New South Wales, constituted by the Children's Court Act 1987 (NSW), has jurisdiction[1] to hear and determine proceedings in respect of any offence (whether indictable or otherwise) other than a serious children's indictable offence. It has jurisdiction[2] to hear and determine committal proceedings in respect of any indictable offence, including a serious children's indictable offence. The CCP Act provides, as the conditions for the exercise of either species of its jurisdiction, that the offence is alleged to have been committed by a person who was a child when the offence was committed and who was under the age of 21 years when charged before the Children's Court with the offence. 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 are to be dealt with summarily[3]. 3. If, as in the present matter, a child is charged with a serious children's indictable offence, committed for trial in the District Court of New South Wales, and the prosecutor chooses not to proceed on the charge of a serious children's indictable offence but a lesser, included, indictable offence, must the proceedings for that lesser offence return for hearing and determination by the Children's Court? Does the District Court have jurisdiction to hear and determine that lesser offence? 4. The power given to the District Court to order remitter to the Children's Court of criminal proceedings against a child is contained in s 44 of the CCP Act. That power may be exercised only "[i]f a court before which a person is charged with an offence is satisfied that, because of any provision of [the CCP] Act, it did not or does not have jurisdiction to deal with the charge". There is no provision of the CCP Act which excludes or limits the jurisdiction of the District Court "in respect of all indictable offences" conferred by s 46(2)[4] of the Criminal Procedure Act 1986 (NSW) ("the Criminal Procedure Act") in conjunction with s 166(1) of the District Court Act 1973 (NSW)[5]. 5. The condition for exercising the power under s 44 of the CCP Act was not satisfied in the present matter. The District Court had jurisdiction to deal with the charges preferred against the appellant. Section 44 of the CCP Act not being validly engaged, no order for remitter should have been made. It was not suggested, either in this Court or in the courts below, that if the District Court had jurisdiction with respect to the charges preferred against the appellant, the further exercise of that jurisdiction should have been stayed.