Reported Decision : 164 A Crim R 151 New South Wales Court of Criminal Appeal CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v PM [2006] NSWCCA 297 HEARING DATE(S): 22 August 2006 JUDGMENT DATE: 13 September 2006 JUDGMENT OF: Basten JA at 1; Whealy J at 64; Latham J at 65 DECISION: (1) Appeal allowed; (2) Order of McGuire DCJ remitting the matter to the Children's Court, made on 15 March 2006 is set aside. CATCHWORDS: PRACTICE & PROCEDURE – criminal proceedings against a child – Children (Criminal Proceedings) Act 1987 (NSW) s 31 and Criminal Procedure Act 1986 (NSW) s 8 – whether the Director of Public Prosecution can bring proceedings in the District Court against a child by an ex offico indictment for an offence which is not a "serious children's indictable offence" - JURISDICTION – whether an appeal against a finding that an indictment was invalid should be made under s 5C or s 5F of the Criminal Appeal Act 1912 (NSW) Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 4, 5, 6, 7, 8, 11, 26, 27, 28, 31, 43, 44, 47, 48, 49 Crimes Act 1900 (NSW), ss 61J, 61M, 66C, 423 Criminal Appeal Act 1912 (NSW), ss 5C, 5F 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 LEGISLATION CITED: Criminal Procedure Regulation 2005, cl 7 Director of Public Prosecutions Act 1986 (NSW), s 7, 33 District Court Act 1973 (NSW), s 8 District Court Rules 1973 (NSW), Part 53, r10D, r12 Interpretation Act 1987 (NSW), ss 21, 34, 35 Justices Act 1902, s 41 Bartalesi and Fragassi (1997) 93 A Crim R 274 Barton v The Queen (1980) 147 CLR 75 Bozatsis & Spanakais (1997) 97 A Crim R 296 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455 Grassby v The Queen (1989) 168 CLR 1 Hawkesbury City Council v Sammut [2002] 119 LGERA 171; [2002] NSWCA 18 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Kahatapitiye v R (2004) 146 A Crim R 542; [2004] WASCA 189 Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172 Kolalich v Director of Public Prosecutions (NSW) 1991 173 CLR 222 Lodhi v R [2006] NSWCCA 121 CASES CITED: 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 Ayres [1984] AC 447 R v Cheng (1999) 48 NSWLR 616 R v Halmi (2005) 62 NSWLR 263 R v Howard (1992) 29 NSWLR 242 R v Janceski [2005] NSWCCA 281 R v Sepulveda [2003] NSWCCA 131 R v Stanton (1991) 52 A Crim R 164 R v Steffan (1993) 30 NSWLR 633 R v Taylor [2003] NSWCCA 194 Sergi v DPP & Anor (unrep, NSWCCA, 10 September 1991) Smedley v State Building Society (unrep, Court of Appeal (NSW), 17 October 1990), BC 9001855 PARTIES: Director of Public Prosecutions (NSW) - Applicant PM - Respondent FILE NUMBER(S): CCA 2006/970 COUNSEL: Mr P. Barrett - Applicant Mr R. Sutherland SC/Mr G.K. Walsh - Respondent SOLICITORS: S. Kavanagh (Solicitor for Public Prosecutions) - Applicant Fox O'Brien, Solicitors - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 05/11/0298 LOWER COURT JUDICIAL OFFICER: McGuire DCJ LOWER COURT DATE OF DECISION: 15 March 2006 IN THE COURT OF CRIMINAL APPEAL CCA 2006/970 DC 05/11/0298 BASTEN JA WHEALY J LATHAM J 13 September 2006 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v PM The Respondent is alleged to have had non-consensual sexual intercourse with a girl, then aged 14. Initially there were two charges of aggravated sexual assault laid against the Respondent in the Children's Court with two different circumstances of aggravation; the first was that the alleged victim was under the age of 16 years, and the second was that at the time of the offence he "did occasion actual bodily harm" to the alleged victim which appeared to be intended to identify the circumstance in s 61J(2)(a) of the Crimes Act 1900 (NSW). The second charge alleged a "serious children's indictable offence" under s 3 (1) of the Children (Criminal Proceedings) Act 1987 (NSW). At the hearing in the Children's court, the Director of Public Prosecution (DPP) withdrew and the Children's Magistrate discharged the Respondent in relation to the first charge and committed him for trial on the second charge. The first indictment filed in the District Court alleged as a circumstance of aggravation that the Respondent "did inflict actual bodily harm" on the victim. However a second indictment was prepared which contained three charges each of were capable of summary disposition if he had been charged before the Children's Court. One alleged as a circumstance of aggravation that the alleged victim was under 16 years. After the Respondent was arraigned on the second indictment and the trial commenced, the trial judge discharged the jury and ordered, pursuant to s 44 of the Crimes Act, the matter to be remitted to the Children's Court as the second indictment failed for want of jurisdiction. The DPP appealed against this order. The issues for determination by the Criminal Court of Appeal were: (i) whether the second indictment filed by the DPP was valid in that they contained charges for offences which were not "serious children's indictable" offences; (ii) whether the appeal should be brought under s 5C or s 5F of the Criminal Appeal act 1912. Held in relation to (i): By Latham J (Whealy J agreeing): 1. The charge upon which the Respondent was committed for trial described an offence, the aggravating circumstance of which was unknown to the law. In that regard the Court Attendance Notice failed to identify an essential factual ingredient of the offence and was therefore defective and insufficient to found the committal proceedings against the respondent. Thus even the first indictment presented in the District Court was, in reality, an ex officio indictment: at [75] – [77]. John L. Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508; Lodhi v R [2006] NSWCCA 121, applied. 2. The DPP has the power to present an indictment regardless of the fact that there may have been some defect in the committal proceedings and the finding of an ex offico indictment in those circumstances will not produce an abuse of process unless it would result in unfairness to the accused at trial. The court cannot go behind the issue of an ex officio indictment: at [82]. R v Janceski [2005] NSWCCA 281; Grassby v The Queen (1989) 168 CLR 1; Barton v The Queen (1980) 147 CLR 75, applied. 3. The regime under the Children (Criminal Proceedings) Act creates a presumption in favour of summary disposition. The presumption is displaced upon the election of the child for committal to trial, or upon the court reaching a conclusion that the charge should properly be tried before a jury: at [92]. 4. Section 31 of the Children (Criminal Proceedings) Act does no more than direct the Children's Court as to the exercise of its jurisdiction. It does not direct the prosecution authority or limit the jurisdiction of the District and Supreme Courts. It does not stipulate that indictable offences may only be heard and determined by way of summary proceedings, nor does it require or demand that indictable offences be dealt with by way of committal hearings: at [98] Bartalesi & Fragassi (1997) 93 A Crim R 274, applied. 5. The ex offico indictment presented at the respondent's trial was procedurally valid. The special procedures thought appropriate to an essentially protective jurisdiction such as the Children's Court jurisdiction cannot displace the undoubted power of the DPP to ensure that a person accused of an indictable offence is brought to trial, in circumstances where that accused has been discharged at committal: at [102]. 6. Section 44 of the Children (Criminal Proceedings) Act is only available where the alleged want of jurisdiction relates to the age of the defendant. Accordingly, the order made by the trial judge was not validly made under that provision: at [112]. By Basten JA (dissenting): 1. All offences which are not serious children's indictable offences are required to be dealt with summarily in the Children's Court; the exceptions to this principle only arise where proceedings have in fact been commenced in the Children's Court under s 31 of the Children (Criminal Proceedings) Act: at [28]. 2. By virtue of a combination of s 8 of the Criminal Procedure Act 1986 (NSW) and s 31 of the Children (Criminal Proceedings) Act, the Director had no power in this case to file an ex officio indictment in relation to an offence other than a serious children's indictable offence: at [28]. Stanton (1991) 52 A Crim R 164; Bartalesi and Fragassi (1997) 93 A Crim R 274, distinguished 3. The second indictment filed in the District Court, being the one on which the Respondent was arraigned before the trial judge and a jury on 14 March 2006, was not a valid indictment: at [31]. 4. The District Court is a court of record and has jurisdiction to determine its own jurisdiction, including the making of an order consequential upon a determination that it had no jurisdiction: at [62]. Parisienne Basket Shoes Pty Ltd v Whyte (1937) CLR 369; Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172; Smedley v State Building Society (unrep, NSWCA, 17 October 1990, BC 9001855, applied. Held in relation to (ii): By Basten JA (Whealy & Latham JJ agreeing): 1. Whether an appeal can be brought under s 5F of the Criminal Appeal Act 1912 (NSW) is determined not by reference to a definition of the words "judgment" and "order", but by looking to the substance and effect of the decision made by the trial judge, as viewed in the context of the Criminal Appeal Act: at [57]. Bozatsis & Spanakakis (1997) 97 A Crim R 296; R v Cheng (1999) 48 NSWLR 616, applied. 2. The Director's appeal might more properly have been brought under s 5C of the Criminal Appeal Act as the substantive or operative decision was that the indictment was invalid and had the objection been taken to the indictment before the jury was sworn, the likely order would have been an order quashing the indictment. However nothing turns on this point and the appeal should not be dismissed for that reason: at [58]. John L Pty Ltd v Attorney- General (NSW) (1987) 163 CLR 508, applied. IN THE COURT OF CRIMINAL APPEAL CCA 2006/970 DC 05/11/0298 BASTEN JA WHEALY J LATHAM J 13 September 2006 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v PM Judgment 1 BASTEN JA: This case was presented as an appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), brought by the Director of Public Prosecutions, against an order made by the District Court "remitting an indictment" to the Children's Court. More will be said below about the nature of the appeal and the jurisdiction of this Court. 2 The issue at the heart of this case concerns the extent to which exclusive jurisdiction has been conferred on the Children's Court in relation to criminal charges where the alleged offender is a child, and how that jurisdiction can be invoked. It is convenient to deal with the issues raised in the following order: (1) statutory scheme for prosecution of children; (2) procedural steps taken in Children's Court; (3) proceedings in District Court; and (4) jurisdiction of this Court. 3 Before turning to the statutory scheme, the facts which gave rise to the charge should be noted, although they have not yet been considered in detail by any Court. The alleged offender was a boy aged 16 years 9 months at the time of incident. He is now 18 years of age but the publication of his name (and that of the victim) remains within the prohibition contained in s 11 of the Children (Criminal Proceedings) Act 1987 (NSW): he will be referred to below as the Respondent. 4 At about 10.30am on Friday, 17 September 2004, the Respondent is alleged to have had non-consensual sexual intercourse with a girl, then 14 years of age, at a school which they both attended. The incident was said to have involved anal intercourse. Statutory scheme for prosecution of children 5 Criminal procedure generally in this State has been governed, since 13 July 1987, by the Criminal Procedure Act 1986 (NSW). It will be necessary to make reference to certain provisions of that Act, as relevant. However, a separate scheme with respect to offences committed by children is to be found in the Children (Criminal Proceedings) Act 1987 (NSW) which commenced on 18 January 1988. 6 Section 8 of the Children (Criminal Proceedings) Act provides for the commencement of proceedings, and so far as relevant provides as follows: 8 Commencement of proceedings (1) Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice. (2) Subsection (1) does not apply: (a) if the offence for which proceedings are being commenced consists of: (i) a serious children's indictable offence, … 7 Section 8 comes in Part 2 of the Act, which includes s 4: 4 Application This Part applies to: (a) any court that exercises criminal jurisdiction, and (b) any criminal proceedings before any such court, notwithstanding any law or practice to the contrary. 8 Part 3 of the Act deals with criminal proceedings in the Children's Court and s 26 makes similar provision to s 4, but in relation to Part 3. Section 26 further provides that in the case of inconsistency between Parts 2 and 3, Part 3 shall prevail: s 26(2). 9 The present matter was commenced by way of two court attendance notices. The first was issued on 18 September 2004 and identified an offence pursuant to s 61J(1) of the Crimes Act 1900 (NSW), being a form of aggravated sexual assault. The circumstance of aggravation specified was that contained in s 61J(2)(d), namely that the alleged victim was under the age of 16 years. 10 On or about 21 October 2004 a second court attendance notice was issued to the Respondent, also identifying an offence pursuant to s 61J(1) of the Crimes Act, but specifying a different circumstance of aggravation namely that, at the time of the offence, he "did occasion actual bodily harm" to the alleged victim. This, it appears, was intended to identify a circumstance of aggravation as specified in s 61J(2)(a), although the circumstance identified in that provision is that the alleged offender "maliciously inflicts actual bodily harm on the alleged victim". The variation in terminology raises an issue as to a possible defect in the notice, but it is not one that need be addressed on this appeal. 11 The difference between the two charges had important legal consequences. The second charge (but not the first) alleged a "serious children's indictable offence", as defined in s 3(1) of the Children (Criminal Proceedings) Act. The distinction is relevant to the operation of the hearing provisions in Division 3 of Part 3. Relevantly for present purposes, s 31 provides: 31 Hearing of charges in the Children's Court (1) 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 shall be dealt with summarily. (2) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and (b) if the person informs the Children's Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with … the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act. (3) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence, and (b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken: (i) that … the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and (ii) that the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with … the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children's Court had formed the opinion referred to in section 62 of that Act. 12 There is some awkwardness in describing an offence as "indictable" if proceedings for the offence "shall be dealt with summarily": at least for the purposes of the Criminal Procedure Act, an indictable offence means one that may be prosecuted on indictment: s 3(1), Criminal Procedure Act. A similar definition, of general operation, is found in s 21 of the Interpretation Act 1987 (NSW). Nevertheless, the effect of s 31 is clear: all offences, other than those falling within the category of "serious children's indictable offence", shall be dealt with summarily unless one of the exceptions applies. Section 31 does not deal with committal proceedings, but s 28 confers jurisdiction on the Children's Court in respect of both committal proceedings and other proceedings: 28 Jurisdiction of the Children's Court (1) The Children's Court has jurisdiction to hear and determine: (a) proceedings in respect of any offence (whether indictable or otherwise) other than a serious children's indictable offence, and (b) committal proceedings in respect of any indictable offence (including a serious children's indictable offence), if the offence is alleged to have been committed by a person: (c) who was a child when the offence was committed, and (d) who was under the age of 21 years when charged before the Children's Court with the offence. 13 Assuming that committal proceedings are included within the term "criminal proceedings", it would seem that s 27 of the Children (Criminal Proceedings) Act picks up and applies in the Children's Court the provisions of the Criminal Procedure Act relating to committal proceedings. Procedural steps taken in Children's Court 14 The steps taken in the present proceedings may be considered against that statutory background. As noted above, there were two charges laid against the Respondent in the Children's Court, one concerning a serious children's indictable offence, the other an indictable offence not so described. At the hearing before the Children's Magistrate on 12 April 2005 the Director of Public Prosecutions sought to "withdraw" the latter charge and proceed only upon the serious children's indictable offence, seeking that the Respondent be committed for trial in relation to that charge, it being the charge involving, as the circumstance of aggravation, actual bodily harm. No point was taken as to the discrepancy between the statutory definition and the terms in which the charge was formulated. 15 The other charge, which alleged as the circumstance of aggravation the age of the victim, was subject to an order by the Magistrate in the following terms (Tcpt, 12/04/05, p 9(20)): "I will withdraw that and discharge the defendant." This latter order appears to have been intended to conform to s 208 of the Criminal Procedure Act which provides: 208 Dismissal of matter if matter withdrawn If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned. 16 The Criminal Procedure Act provides for the accused person, in the case of an order of dismissal, to obtain a certificate certifying that the matter has been dismissed: s 205(1). The effect of the certificate is that it "prevents any later proceedings in any court for the same matter against the same person": s 206. 17 The proceedings in the Children's Court were then completed, with the Respondent being committed for trial on one charge involving a circumstance of aggravation under s 61J(2)(a). Proceedings in District Court 18 The vacillation on the part of the Director as to the appropriate charge in the Children's Court continued when the matter came to the District Court. 19 The first step was the filing of a notice of readiness to proceed in the District Court, dated 18 May 2005. Annexed to the notice was an indictment for an offence under s 61J(1) of the Crimes Act, alleging as a circumstance of aggravation, that the Respondent "did inflict actual bodily harm on" a person who was no doubt was meant to be the victim, but was in fact identified as the police officer who created the court attendance notices in the Children's Court. The indictment was dated 18 May 2005 and was signed by a Crown prosecutor. There has been no return on that indictment and its status will need to be considered in due course. 20 On 14 March 2006 a second indictment was prepared by the Director and signed by a different officer, probably Mr Wagstaff, who appeared for the Director at the trial which commenced on 14 March 2006. That indictment contained three charges, two being in the alternative to count 1, and none being the charge on which the Respondent was committed for trial. The three charges involved contraventions of the following provisions of the Crimes Act: (1) section 61J(1) and (2)(d) – being non-consensual sexual intercourse with an aggravating circumstance, being the age of the alleged victim; (2) section 66C(3) – being sexual intercourse with a child between 14 and 16 years, and (3) section 61M(1) and (3)(b) – being assault in circumstances of aggravation with an act of indecency, the circumstance of aggravation being the fact that the alleged victim was under the age of 16 years. 21 If s 31 of the Children (Criminal Proceedings) Act applied, and subject to the exceptions noted above, the proceedings for the offence would have been required to be dealt with summarily. The first question is therefore whether these were offences for which the Director was entitled to file an indictment. The answer to that question depends in part upon certain provisions in Chapter 2, Part 1 of the Criminal Procedure Act, the relevant provisions of ss 5, 6 and 8 being as follows: 5 Certain offences to be dealt with on indictment (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 6 Certain offences to be dealt with summarily (1) The following offences must be dealt with summarily: (a) an offence that under this or any other Act is required to be dealt with summarily … . (2) An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. … 8 Prosecution of indictable offences (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. (2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment. (3) This section does not apply to offences that is [sic] required to be dealt with summarily. (4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily. 22 Each of the offences in the indictment on which the Respondent was arraigned was one which was required to be dealt with summarily if he had been charged before the Children's Court. They were not charges which the Children (Criminal Proceedings) Act "permitted" to be dealt with on indictment in any sense relevant to the provisions of the Criminal Procedure Act set out above. The circumstances in which they were not to be dealt with summarily required that the person charged had informed the Children's Court of his or her wish, or where the Children's Court had formed a particular opinion after all the evidence for the prosecution had been taken: sub-ss 31(2) and (3). Those provisions do not apply to a person unless and until they have been charged before the Children's Court. 23 The next issue of construction concerns the opening words of s 31(1) which, on one view, provide a condition for its operation, namely that the person in fact be charged before the Children's Court. Thus, the requirement for offences to be dealt with summarily is not engaged if the Director decides to proceed by way of ex officio indictment in the District Court. His right to proceed by way of ex officio indictment is preserved by s 8(2) of the Criminal Procedure Act. That section does not apply to offences required to be dealt with summarily, but on the argument now being considered, offences against children are only required to be dealt with summarily if he decides to proceed in the Children's Court, rather than by way of ex officio indictment in the District Court. 24 This argument should be rejected, for four related reasons. First, although s 31(1) of the Children (Criminal Proceedings) Act commences with the word "if", the purpose of that usage is ambiguous. The opening words could mean 'if a person is charged before the Children's Court, rather than on indictment before the District Court', recognising that a different process is available. On the other hand, "if" could mean 'when', in the sense of 'whenever'. The latter meaning is to be preferred. The clear purpose of the provision is to define when and in what circumstances proceedings for offences against children are to be dealt with on indictment (by way of "trial according to law") and when they are to be dealt with summarily. In sub-s (2), a right to be dealt with according to law is given to the person charged. There is no suggestion that the prosecutor is intended to be able to take the matter out of the statutory regime, simply by commencing proceedings by way of an ex officio indictment. 25 Secondly, in relation to an offence which is not a "serious children's indictable offence", s 8(1) of the Children (Criminal Proceedings) Act, set out at [6] above requires that proceedings against a child should not be commenced otherwise than by a court attendance notice. That provision applies to all criminal proceedings in any court: see s 4, set out at [7] above. (There are other exceptions, but they are not relevant for present purposes.) Provision for court attendance notices is made in Chapter 4 of the Criminal Procedure Act, dealing with summary procedure. The scheme of that Part is inconsistent with any suggestion that an ex officio indictment is a court attendance notice. It follows that the statutory scheme does not permit commencement of proceedings against a child by way of ex officio indictment, except in relation to, relevantly, a serious children's indictable offence. The second indictment contravened this scheme. 26 Thirdly, that construction is at least consistent with s 8 of the Criminal Procedure Act, which envisages that some offences will be required to be dealt with summarily and that the power to file an indictment does not exist in such circumstances. Of course, some offences may be identified as offences to be dealt with summarily by the statutory provision creating them. On the other hand, there is no reason to suppose that such a requirement could not arise in relation to particular categories of people, such as children. It would be reasonable to suppose that the drafter of the Children (Criminal Proceedings) Act, being the later Act, would have thought that he or she was engaging s 8(3) of the Criminal Procedure Act, by virtue of s 31(1) of the Children (Criminal Proceedings) Act. 27 Fourthly, the Children (Criminal Proceedings) Act draws a clear and unequivocal distinction between offences designated as within the category of "serious children's indictable offence" and other offences. In relation to other offences, a regime intended to be protective of the interests of children was formulated with obvious attention to their specific characteristics and circumstances. If it had been intended that the Director could set at nought the statutory scheme by the simple expedient of filing an ex officio indictment one would have expected that intention to be clearly stated. What is more, such an avoidance technique, could only be taken at the expense of a committal proceeding which would normally precede a trial on indictment, although it need not. It cannot readily be supposed that Parliament intended to permit the Director to proceed in such a fashion in relation to a child when, in relation to an adult, he or she would be expected to proceed by way of committal proceedings. Indeed, that approach would be entirely inconsistent with s 6 of the Children (Criminal Proceedings) Act which requires that courts ensure that children "have rights and freedoms before the law equal to those enjoyed by adults": s 6(a). 28 For these reasons, the following conclusions should be accepted: first, all offences which are not serious children's indictable offences are required to be dealt with summarily in the Children's Court; secondly, the exceptions to the first principle only arise where proceedings have in fact been commenced in the Children's Court; thirdly, by virtue of a combination of s 8 of the Criminal Procedure Act and ss 8 and 31 of the Children (Criminal Proceedings) Act, the Director had no power in this case to file an ex officio indictment in relation to an offence other than a serious children's indictable offence. 29 Although a similar issue could have arisen in Stanton (1991) 52 A Crim R 164, it was not raised, this Court (Gleeson CJ, Wood and Grove JJ agreeing) noting at 168: "There is no suggestion of any want of jurisdiction in the District Court to try the appellant in respect of the charges the subject of the indictment." The reason for that was, no doubt, because, although the offences in question had been committed by the appellant as a child, by the time of his trial he was 22, and the Children's Court no longer had any jurisdiction, let alone exclusive jurisdiction. 30 To these conclusions may be added the separate difficulty that the principal charge on the second indictment had been "withdrawn" and dismissed in the Children's Court, with the consequence provided by s 206 of the Criminal Procedure Act, namely that if a certificate had been obtained, to which the Respondent was entitled, further proceedings could not be brought for that matter. 31 It follows that the second indictment filed in the District Court, being the one on which the Respondent was arraigned before Judge McGuire and a jury on 14 March 2006, was not a valid indictment. 32 By way of consequential order the trial judge appears (a matter considered further below) to have made the following order: "Pursuant to s 44 of the Act, case remitted to the Children's Court for its determination. Bail continued." The statutory provision to which the order made reference was s 44 of the Children (Criminal Proceedings) Act , which states: 44 Remission of cases on account of defendant's age If a court before which a person is charged with an offence is satisfied that, because of any provision of this Act, it did not or does not have jurisdiction to deal with the charge, it may remit the case to such other court as has jurisdiction to deal with the charge. The order was clearly intended to be consequential upon the conclusion that the indictment presented in the District Court was defective. Alternative approach rejected 33 Latham J comes to a different conclusion, by an argument which appears to have four critical points of departure from that outlined above. The first identifies an 'assumption' that s 31 of the Children (Criminal Proceedings) Act "operates to the exclusion of s 8(2)", and hence precludes an 'ex officio' indictment against a child: at [87]. The reasoning set out above does not make that assumption (nor does her Honour so suggest); it treats it as the key question. Further, the question should be more precisely identified. First, s 31 does not operate of its own force "to the exclusion of" s 8(2); rather, it is s 8(3) that gives it that effect. Secondly, it only does so in relation to offences other than serious children's indictable offences. 34 Her Honour accepts the importance of s 8(3), because she deals with its history at [94]-[97]. However, that history does not appear to require that it be given anything other than its ordinary meaning (ignoring the inconsequential error by which the number of the subject and verb are mixed). 35 The second point of departure concerns the construction of s 31 of the Children (Criminal Proceedings) Act. Her Honour states that it merely "creates a presumption in favour of summary disposition", which presumption can be "displaced": [92]. With respect, the section does not use any such language; nor do the statutory policies identified require such a construction. Section 31 mandates a rule – namely, summary disposal – subject to exceptions. The adoption of the language of 'presumption' seems to provide a reason for asserting that, although s 31(1) says offences "shall be dealt with summarily", it is not a provision by which an offence "is required to be dealt with summarily": [97]. With respect, an important protection for a child charged with an indictable offence should not be waved aside by such a bland assertion, based on a reformulation of the statutory effect. 36 The third point of departure states that s 31 does "no more than direct the Children's Court as to the exercise of its jurisdiction", and does not "direct the prosecuting authority or limit the jurisdiction of the District and Supreme Courts": [98]. But s 8(3) operates with respect to an offence "that is required to be dealt with summarily". A provision to that effect may not be in the form of a command to a prosecuting authority and, indeed, it may be doubted that any take that form. However, it will certainly effect a limitation on the power of the prosecuting authority, if that power is found in s 8(1): in the present case no-one suggested a different source. Inevitably, if a section requires an offence to be dealt with in a court other than the District or Supreme Court, its effect is to 'limit' the jurisdiction of those courts. Of course, such a provision need not have that effect: there are offences which are to be dealt with in the summary jurisdiction of the Supreme Court. Other offences are required to be dealt with in other courts, such as the Local Court, and Part 5 of the Children (Criminal Proceedings) Act provides examples in relation to offences against that Act: s 49(1). Thus, except for a contravention of s 11, or an offence by a child which falls within the scope of Part 3, all offences created by the Children (Criminal Proceedings) Act itself are to be dealt with summarily before a Local Court. To speak of "limiting the jurisdiction of" the District or Supreme Court, may imply that those Courts have such a jurisdiction in the first place. This would assume the answer to the question sought to be answered. 37 Nevertheless, support for this approach is derived from the decision of this Court in Bartalesi and Fragassi (1997) 93 A Crim R 274, a case which involved an argument presented in terms similar to that under consideration in the present case, but not in relation to the Children (Criminal Proceedings) Act. It concerned the predecessor to s 8 of the Criminal Procedure Act and the predecessors to provisions currently found in Chapter 5 of the Criminal Procedure Act, relating to the summary disposal of indictable offences by Local Courts. It is sufficient for present purposes to refer to s 260 of the current Act which reads as follows: 260(1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment. Further provisions deal with the time for making an election and the circumstances in which elections may be withdrawn: see ss 263 and 264. Of the earlier equivalents to these provisions, Handley JA (with whom Studdert AJA agreed) said in Bartalesi at 276-277: "In my opinion these directions to the Local Court do not limit the jurisdiction of the Supreme or District Court to deal with proceedings commenced by indictment, and do not prohibit the prosecuting authority from commencing such proceedings." 38 There is undoubtedly a similarity between the provisions considered in Bartalesi and those contained in the Children (Criminal Proceedings) Act. However, there are two significant differences. First, unlike the Children (Criminal Proceedings) Act, the Criminal Procedure Act demonstrates no intention that charges for indictable and other offences be commenced in the Local Courts, to the exclusion, for example, of procedures by way of ex officio indictment. Secondly, and importantly, it is clear that s 260 does not impose a constraint on the power of the prosecutor to proceed by way of indictment, because it expressly confers a right of election on the prosecutor "to have the offence dealt with on indictment". The absence of any equivalent power in the Children (Criminal Proceedings) Act, in relation to non-serious children's indictable offences, provides a marked contrast with the scheme applicable to adults. The language and conclusions in Bartalesi cannot be applied to offences committed by children without consideration of the significant statutory differences. 39 The fourth point of departure is the assertion that "it could not be suggested" that the Director "lacked the jurisdiction" to present against a child committed for murder, an indictment for malicious wounding: [106]. It is appropriate to test a proposed construction against the objects of the legislation, but an appropriate purposive construction will not follow from "consequentialist rhetoric": see Mason P in Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18, at [39]. First, the rhetoric in this case only has force if the proposed alternative charge is not a serious children's indictable offence. Malicious wounding is not, because the Children (Criminal Proceedings) Act, refers, relevantly, to offences punishable by imprisonment for life or for 25 years: s 3(1), serious children's indictable offence, (b). Malicious wounding carries a penalty of seven years imprisonment. Thus, the implied criticism contained in the rhetorical statement, may properly be directed against the definition of a serious children's indictable offence. It is by no means self-evident that an offence for which a child was required to be dealt with summarily in the Children's Court becomes an offence which can be dealt with on indictment, because a more serious offence, which the Director does not wish to pursue, was the subject of a committal proceeding. Indeed, the logic behind this claim is even more far-reaching, as will appear below. 40 Secondly, to assert that something 'could not be suggested' purports to deny the reasonable possibility that Parliament has so legislated. The relevant question is whether s 8(3) removes the power of the Director to file an indictment against a child in relation to an offence Parliament has said shall be dealt with summarily. Such a limitation on the power of the Director would appear to be an integral part of a coherent and consistent scheme and is therefore eminently plausible. 41 Thirdly, the plausibility of the conclusion can properly be tested by asking whether the alternative construction achieves a similarly coherent and consistent scheme and promotes the relevant statutory purposes of the Children (Criminal Proceedings) Act. If s 8(3) is to have work to do, it must remove the power of the Director to present an indictment in relation to offences required to be dealt with summarily: that is what it says. If s 31(1) so provides, it is not "affected" by s 8 – s 8(4) – and would seem to be engaged by s 8(3). Examples of offences by children, not being serious children's indictable offences, but thought to be self-evidently properly triable on indictment if the Director so opines, cannot touch this question of construction. Yet, the example of malicious wounding, noted above, need not depend upon the existence of a committal for murder: the argument must apply to a common assault which may be prosecuted on indictment, even though not occasioning actual bodily harm, and rendering a person liable for imprisonment for two years. A child could not be committed to stand trial on indictment for that offence in any circumstances. However, the proposed construction permits the Director (a statutory office-holder), in the exercise of an assumed discretion, to disregard the principles contained in s 6 of the Children (Criminal Proceedings) Act and bypass the statutory scheme for the imposition of criminal responsibility with respect to children. There is no statutory provision which expressly confers such a power; this Court has no statutory or constitutional warrant to confer such power on the Director. The first indictment 42 On one view, the fate of the first indictment is irrelevant to this appeal. It was not before the trial judge or the jury and was not the subject of any order made by his Honour. On the other hand, once it is accepted that the second indictment was invalid, but for reasons which do not affect the first indictment, the fate of the first indictment is relevant to the consequential order made by his Honour, remitting "the case" to the Children's Court, if in fact he made such an order – a question which remains to be determined. Arguably, if the first indictment remains alive, it would be an abuse of process to remit the case to another court. 43 The fate of an indictment which has been filed and upon which an accused may even have been arraigned, but which did not proceed to trial, has been the subject of consideration in a number of cases, including Regina v Taylor [2003] NSWCCA 194 at [134]-[155] (Bell J, Spigelman CJ and Miles AJ agreeing). In that case, the accused was arraigned on three different indictments, but proceeded to trial only on the third. For the purposes of determining the relevant law with respect to self-defence in relation to a murder charge, the Court was required to decide at what point in time the proceedings "were instituted", for the purposes of s 423(2) of the Crimes Act. Accordingly, the Court was not directly concerned with the fate of the other two indictments. However, Bell J concluded that, unless the consent of the accused could be implied, the substitution of one indictment for an existing indictment was not authorised by the Criminal Procedure Act: see [155]. In that case there was no prejudice to the accused, because the three indictments were in identical terms. That is not the case here. Nevertheless, the filing of consecutive indictments in such circumstances may well constitute an abuse of process. Her Honour noted at [150] the comments of the Crown Prosecutor in relation to the handing up of an indictment in all material respects the same as one presented upon an earlier arraignment: "He said that it was a common practice for the Crown Prosecutor to hand up a fresh indictment framed in the same terms as the indictment upon which the accused had earlier been arraigned. The justification for the practice was that the jury, in the case in which a copy of the indictment was handed to it, would not be troubled by writing on it made by the judge's associate recording events that had occurred prior to empanelment." Her Honour continued: "The suggested difficulty does not seem to me to be of great moment. It is common for copies of the first page of the indictment setting out the details of the charge to be distributed to each member of the jury in cases involving multiple counts. The associate's notations do not appear on the first page of the indictment. In any event, regardless of convenience, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and once presented may only be amended or substituted in accordance with the provisions of the Criminal Procedure Act ." The Court consistently so held in R v Halmi (2005) 62 NSWLR 263 (Bell J, Simpson and Buddin JJ agreeing). 44 The present issue arose directly, albeit under a partly different procedural regime, in R v Howard (1992) 29 NSWLR 242. In that case one of the accused, Morgan, was included in an indictment with three others, on a charge of manslaughter. The others pleaded guilty, but Morgan pleaded not guilty. The trial did not proceed at that time. Subsequently, Morgan was presented on a second indictment with three further co-accused, but this time on a charge of murder. At trial, he objected unsuccessfully to the new indictment. On appeal, this Court (Gleeson CJ, Sheller JA and Lee AJ) stated at 248D-E: "As Badgery-Parker J observed, it would be curious if, Morgan having been arraigned on 2 October 1990 on a charge of manslaughter, and having pleaded not guilty, he could not thereafter be charged with murder. … On the other hand, Morgan having been arraigned on 2 October 1990 on a charge of manslaughter and having pleaded not guilty, he was thereby deemed to have put himself on the country for trial, and the Court had a statutory duty to order a jury for his trial accordingly … . Leaving to one side the possibility of amending the indictment, (which never occurred in the present case), the proper way to bring to an end the proceedings on the charge of manslaughter, thereby clearing the way for the charge of murder, was by means of the entry of a nolle prosequi or by the taking of some legally equivalent step." 45 The Court held that no necessary formality attended such a step and that a direction by the Director under s 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW) would be sufficient. There was then an issue of fact: because the function under s 7(2)(b) could not be delegated to a Crown prosecutor, but only to a deputy director, and because there was no evidence of any such delegation, it was necessary for the Court to infer that such a direction had been given by the Director himself: p 249F. In the circumstances, the Court was willing to infer that. Their Honours continued at 250D: "The important thing about a direction under s 7(2)(b) is not that it be attended by an particular formality, but that it be communicated to the Court. It is regrettable that, to avoid uncertainty, there was not in the present case a written direction signed by the Director. It could easily have been obtained and produced at the commencement of the trial before Badgery-Parker J. That would have put the matter beyond doubt. However, the Court was clearly told that a decision (to which we infer the Director was a party) had been made to withdraw the charge of manslaughter and to substitute the charge of murder." 46 Leaving aside questions of amendment, the same factual issue arises in the present case. It was common ground between the parties that, prior to the trial, a decision had been made not to proceed on the first indictment, but to proceed on the second indictment. That would be a sufficient decision to terminate a prosecution on the first indictment, but, s 33 of the DPP Act being in the same form as in 1992, that decision could only be made by the Director or a deputy director. The filing of the second indictment indicates that such a decision had been taken, at least by the Crown prosecutor responsible for the second indictment, but beyond that it is difficult to draw a relevant inference. The position in Howard was different. The facts involved the luring of the victim, who was homosexual, to an area where a number of men set upon him and beat him, causing his death. After a number had been charged with manslaughter, and three had pleaded guilty, the decision to charge the remainder with murder could readily be inferred to be of such seriousness as to have been taken by the Director himself. The same cannot be said in the present case. Further, the parties did not advert to the possible relevance of the first indictment remaining on foot (if it did) and accordingly did not address the issue in this matter. 47 Because the Respondent was not arraigned on the first indictment, and did not plead to it, there was no duty to empanel a jury. The importance, in such a circumstance, of communication of the relevant decision to the Court is thus diminished. Nevertheless, it should be inferred that no decision was communicated to the Court in any formal sense, because there appears to be no notation on the back of the indictment. 48 In a practical sense, the filing of the second indictment may be seen as being in substitution for the first. But "substitution" has statutory consequences, as if it were an "amendment". An indictment is "presented" when it is filed with the registrar of the Court: Criminal Procedure Act, s 127 and District Court Rules 1973 (NSW), Part 53, r 10D(1); see also R v Halmi (2005) 62 NSWLR 263 at [39] and [40] (Bell J). Any amendment of the first indictment must be made pursuant to s 20 of the Criminal Procedure Act, which reads: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. … (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 49 Section 21 permits the Court to make an order for the amendment of the indictment if it thinks the indictment is defective, a provision which did not have any operation in the present case. Section 22 then provides: 22 Amended indictment (1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial. 50 There is no evidence of any application to amend the first indictment, or to substitute the second indictment for it, which would have the same effect. One should assume that no such amendment or substitution took place for two reasons: first, there is no evidence of any application and, secondly, there is no note of any endorsement on the indictment. Accordingly, it is not necessary to consider whether the accused may have impliedly consented to it, simply by pleading to its replacement. Whilst such conduct might constitute waiver of objection, if that were relevant, it does not readily demonstrate actual consent and it is doubtful if such an inference should be drawn, especially if the result is adverse to his or her interests and, when the occasion arises, objection is promptly taken: c.f. R v Sepulveda [2003] NSWCCA 131 at [33] and Taylor [2003] NSWCCA 194 at [155]. 51 The resultant uncertainty is unsatisfactory. Arguably, to present a second indictment against an accused person without resolving the status of the existing indictment constitutes an abuse of process. However, in the present case the Director does not seek to rely upon the first indictment and this issue does not arise. The purpose of the present appeal is to challenge the order of remittal to the Children's Court. If successful, the Director intends to have the Respondent arraigned again on the second indictment in the District Court. The order of remittal was itself founded on the lack of jurisdiction of the District Court to hear the second indictment. Jurisdiction of this Court 52 As noted above, this appeal was brought by the Director pursuant to s 5F of the Criminal Appeal Act, which applies to proceedings for the prosecution of offenders on indictment in the District Court: s 5F(1)(a). Subsection (2) provides: (2) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. The powers of the Court are set out in sub-s (5): (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order … appealed against, and (b) if it vacates the judgment, order … may give or make some other judgment, order … instead of the judgment, order … appealed against. 53 There is a separate right of appeal given in relation to the quashing of an indictment. Thus, relevantly for present purposes, s 5C of the Criminal Appeal Act provides: 5C Where … the District Court has quashed any information or indictment or any count thereof … the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. 54 The effect of the ruling made by the trial judge was that the proceedings on the second indictment failed for want of jurisdiction. The only relevant notation on the back of the indictment was "jury discharged", which may have been written by the associate and was not signed by the trial judge as should properly have occurred. Nevertheless, the effect is clear. Contrary to the order identified in the notice of appeal, there was no remittal of the "indictment" to the Children's Court. Such an order would have been inappropriate in any event. 55 In Bozatsis & Spanakakis (1997) 97 A Crim R 296 this Court (Gleeson CJ, Meagher JA and Bruce J) dealt with an appeal under s 5F against an order of a trial judge which had effectively brought an end to a prosecution by excluding "all prosecution evidence" as being illegally obtained. If the ruling had been merely a ruling on the admissibility of evidence, no appeal would have lain under s 5F: R v Steffan (1993) 30 NSWLR 633. However, the trial judge had also made an order permanently staying the proceedings, which is an order traditionally characterised as an interlocutory order. On the other hand, the permanent stay could be seen merely as consequential to a ruling on evidence and such a ruling was not to be treated as a judgment or order because it lacked the relevant degree of finality. Gleeson CJ concluded that this was not merely a decision with respect to the admissibility of a particular piece of evidence but a discretionary decision not to receive any evidence tending to prove the guilt of those charged. His Honour looked at the effect "in substance" of the order, rather than its form: 97 A Crim R at 304. 56 A similar approach was adopted in R v Cheng (1999) 48 NSWLR 616 (Spigelman CJ, Dunford and Kirby JJ agreeing). The circumstances were different, in that the appeal concerned a ruling by the trial judge, at the end of the prosecution case, that there was no case to answer. The prosecution sought to bring an appeal against an interlocutory order, to preclude the trial judge directing the jury to acquit. The anticipated direction and verdict would not have been subject to appeal by the prosecution. After quoting a passage from the judgment of Gleeson CJ in Bozatsis & Spanakakis, Spigelman CJ stated at [14]: "His Honour focused on the substance and effect of the decision in order to categorise it as a 'judgment or order'. In this his Honour emphasised that the effect was to refuse to permit the Crown 'to seek to make a case' at all." 57 In Cheng, it was held s 5F did not permit such an appeal, not by reference to a definition of the words "judgment" and "order", but by looking to the substance and effect of the decision made by the trial judge, as viewed in the context of the Criminal Appeal Act: Spigelman CJ at [32]-[34]. 58 Applying that approach, the substantive or operative decision made by the trial judge in the present case was that the indictment was invalid. Had an objection been taken to the indictment pursuant to s 17(1) of the Criminal Procedure Act, before the jury was sworn, the likely order would have been an order quashing the indictment. That in turn would have engaged the right of appeal conferred on the Director by s 5C of the Criminal Appeal Act. That provision deals with the quashing of an information or an indictment. John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 dealt with an information in the summary jurisdiction of the Supreme Court. Nevertheless, the comments in the joint judgment of Mason CJ and Deane and Dawson JJ at 516-517 are instructive: "In a case where proceedings are commenced by information, the operative act (for commencing the proceedings) is not the preparation or the signing of a written document called an information. It is the laying of the information that an offence has been committed before the court whose jurisdiction to deal with the offence is being invoked. In that context, the reference to an information being "quashed" in the first limb of s 5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information. In that sense, the decision of Yeldham J that the information should be dismissed because it was defective was a decision quashing it." 59 These comments are directly applicable to the indictment and decision in the present case. Accordingly, the Director's appeal might more properly have been brought under s 5C of the Criminal Appeal Act. However, nothing turns on that for present purposes and the appeal should not be dismissed for that reason. 60 The other (largely theoretical) question relating to the jurisdiction of this Court is whether the trial judge in fact made the remittal order sought to be impugned. He said in his judgment that he 'proposed' to make such an order (p 6) and told the jury that he had made such an order: Tcpt, 15 March 2006, p 20(15). Nevertheless, the only record of such an order appears, not on the indictment where it might properly be found, but on a separate handwritten sheet signed by the judge's associate. Part 53, r 12 of the District Court Rules 1973 provides for the recording of orders and directions: 12 Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgment, order, sentence, direction or recommendation. 61 The keeping of proper records in criminal proceedings is a matter of some importance. A failure to keep an accurate record can give rise to uncertainty and potential prejudice, particularly, though not only, in relation to sentences: Erceg v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455. Despite the informality, it should be concluded that the trial judge in fact made the order referred to at [32] above. Orders 62 Although not a superior court, the District Court is a court of record: District Court Act 1973 (NSW), s 8. There is no doubt that it has jurisdiction to determine its own jurisdiction: Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 390-392 (Dixon J); Smedley v State Building Society (unrep, Court of Appeal (NSW), 17 October 1990), BC 9001855 at p 24 (Kirby P); Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172 at [83]. That would properly be understood to extend to jurisdiction to make appropriate orders consequential upon a determination that it had no jurisdiction. In any event, the power to make an order remitting "the case" to the Children's Court is expressly conferred by s 44 of the Children (Criminal Proceedings) Act. If the conclusion that the District Court lacked jurisdiction were correct, no other argument was put by the Director challenging the order of remittal. The order was appropriate in the circumstances, the underlying premise being made good. 63 The only necessary and appropriate order is: Appeal dismissed. 64 WHEALY J: I agree with Latham J and with the orders her Honour proposes. 65 LATHAM J: The Director of Public Prosecutions appeals pursuant to s 5F of the Criminal Appeal Act 1912 against an order (according to the Notice of Appeal) "remitting an indictment containing one count of aggravated sexual assault (section 61J(2)(d) of the Crimes Act 1900) to the Children's Court", made by his Honour Judge McGuire on 15 March 2006. The Notice of Appeal seeks an order vacating the order made by his Honour and such further orders as the Court thinks fit. 66 On 14 March 2006 the respondent pleaded not guilty in the District Court to an indictment presented at trial, charging an act of sexual intercourse without consent in circumstances of aggravation (s 61J(1)), being that at the time of the offence the complainant was under the age of 16 years (s 61J(2)(d)), and further counts in the alternative not presently relevant. A jury was empanelled and the trial proceeded to the point where the complainant had given evidence in chief by way of a recorded interview. Immediately following that evidence in chief, his Honour received a note from the jury, in which the jury enquired why the respondent was being tried as an adult. There was some brief discussion between his Honour and counsel as to the response which his Honour might give the following day. 67 The next day, counsel for the respondent made an application to his Honour for the exercise of the discretionary power under s 44 of the Children (Criminal Proceedings) Act 1987. Section 44 provides :- If a court before which a person is charged with an offence is satisfied that, because of any provision of this Act, it did not or does not have jurisdiction to deal with the charge, it may remit the case to such other court as has jurisdiction to deal with the charge. 68 His Honour acceded to the application. Essentially, his Honour concluded that because the indictment before the court particularised conduct constituting an indictable offence and not a serious children's indictable offence, the charge could only have come to the court pursuant to the procedures outlined in s 31 of the Children (Criminal Proceedings) Act and that, in view of the fact that the procedure had not been followed, the court was without jurisdiction to deal with that charge. His Honour said at the conclusion of his reasons, "the order I propose to make is that pursuant to s 44 of the Act I remit the case to the Children's Court for its determination." 69 Thereafter his Honour discharged the jury, in the course of which his Honour said "what has happened is that I've made an order remitting this matter back to the Children's Court where it will be dealt with by a magistrate". In fact, his Honour had not made an order, in so far as his judgment on the application merely indicated the order he proposed to make and nothing to that effect appears on the backsheet of the indictment or anywhere else in the record of the proceedings. A handwritten note apparently signed by his Honour's associate on 15 March 2006 reads "pursuant to section 44 of the Act, case remitted to the Children's Court for its determination. Bail continued. Jury discharged." 70 The Court was informed that the matter is now before the Children's Court, and has been set down for further mention on 5 September 2006. The respondent takes no issue with the submission by the Crown that despite some ambiguity of language, the parties acted on the basis that the order had been made and this Court should likewise proceed on that basis. Accordingly, I accept that his Honour made such an order. The Children's Court Proceedings 71 It is necessary to explore more fully the history of the proceedings in the light of some aspects of his Honour's judgment. His Honour referred to the fact that he had been informed from the bar table that when the matter came before the Children's Court the respondent was charged with two counts, namely sexual intercourse without consent in circumstances of aggravation being that the complainant was under the age of 16 years (sequence 1) and sexual intercourse without consent in circumstances of aggravation being "the infliction of actual bodily harm" (sequence 2). That was not an entirely correct statement of the position, given that his Honour was not provided with the Court Attendance Notices which comprised the informations for the purposes of the proceedings in the Children's Court. 72 On the hearing of this appeal, this Court was provided with the Court Attendance Notices. The sequence 1 charge, being an indictable offence, was laid against the respondent on 18 September 2004, approximately 4 hours after the respondent's arrest. The sequence 2 charge, purportedly a serious children's indictable offence, was laid on 21 October 2004. In the Court Attendance Notice issued on the latter date, the charge was described as "sexual intercourse with EG without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence PM did occasion actual bodily harm to EG." A reference to Law Part Code 272 appears in the right-hand corner of the description of the charge. That is the correct Law Part Code for an offence under s 61J(1) where the circumstance of aggravation relied upon is under s 61J(2)(a) of the Crimes Act, namely the malicious infliction of actual bodily harm. 73 The significance of the sequence 2 charge lay in the procedure established by the Children (Criminal Proceedings) Act, in particular sections 28 and 31. Thus, the Children's Court had jurisdiction to hear and determine the sequence 1 charge summarily. The sequence 2 charge could only be dealt with by way of committal for trial to the District Court (s 28(1)). 74 When the matter came before the Children's Court on 12 April 2005, the magistrate was informed that it was listed for a committal hearing and that one witness, an expert in the field of DNA material, was required to be called. Immediately after the witness gave evidence and was cross-examined, the respondent's counsel (who appeared in the District Court and on the appeal in this Court) indicated that he had no submissions to make. The prosecutor then informed the magistrate that the DPP sought committal for trial in relation to the sequence 2 charge and withdrawal of the sequence 1 charge. The respondent's counsel had no objection to that course. The magistrate then withdrew the sequence 1 charge and discharged the respondent in respect of it. The respondent did not give or call evidence and was committed for trial to the Sydney District Court. 75 The charge upon which the respondent was committed for trial described an offence, the aggravating circumstance of which was unknown to the law. In that regard, the Court Attendance Notice failed to identify an essential factual ingredient of the offence and was therefore defective and insufficient to found the committal proceedings against the respondent, unless the defect could be cured or overcome by relevant statutory provisions: John L. Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 520 – 521 ; Lodhi v R [2006] NSWCCA 121. 76 Chapter 3 of the Criminal Procedure Act, titled "Indictable Procedure", applies to proceedings in the Children's Court for indictable offences, other than indictable offences being dealt with summarily, (s 45). Section 50 within that Chapter provides that a Court Attendance Notice must describe the offence and briefly state the particulars of the offence. An indictment includes a Court Attendance Notice (s 15(2)). Section 16(1) of the Act provides that an indictment is not bad, insufficient, void, erroneous or defective on the grounds described in (a) to (i) inclusive, none of which apply to the particular defect in this case. I can discern no basis upon which the defect is capable of being cured. The committal proceedings were a nullity. 77 For the reasons that follow, the fact that the committal from the Children's Court was a nullity does not, in my opinion, affect the jurisdiction of the District Court to hear and determine the charge or charges preferred on the indictment presented at the respondent's trial. However, the practical consequence was that the indictments presented in the District Court were, in reality, ex officio indictments. The Proceedings in the District Court 78 On 25 May 2005 a Notice of Readiness to Proceed in the District Court was filed in the District Court Criminal Registry pursuant to cl 7 of the Criminal Procedure Regulation 2005. That notice annexed a draft indictment, signed by a Crown Prosecutor, containing a charge, namely that the respondent "did have sexual intercourse with EG, without her consent, knowing she was not consenting and at the time of the offence did inflict actual bodily harm on the said [EG]." The notice further stated that the attached indictment covered all the matters for which the respondent was committed for trial. 79 There was a misdescription of the complainant in the later reference which constituted a wrong particular. As such, it was unobjectionable pursuant to s 16(2) of the Criminal Procedure Act. In addition, "maliciously" was omitted. However, it is apparent that the charge on the indictment substantially remedied the defect inherent in the Court Attendance Notice. The indictment charged "a known and subsisting criminal offence, but pleaded [it] in terms which [were] … incomplete or otherwise imperfect" : R v Ayres [1984] AC 447 ; Kahatapitiye v R (2004) 146 A Crim R 542 ; [2004] WASCA 189. The respondent and the court knew the precise identity of the offence and the substance of the charge which the respondent had to meet : John L Pty Ltd ; R v Janceski [2005] NSWCCA 281 at [52] per Spigelman CJ. 80 Section 8 of the Criminal Procedure Act provides :- (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. (2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment. (3) This section does not apply to offences that is required to be dealt with summarily. (4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily. 81 Section 8(2) operated in the instant case. The respondent was not validly committed for trial at all, however, the indictment contained a serious children's indictable offence, that is, an offence that could not be disposed of summarily in the Children's Court. 82 It is clear that the Director of Public Prosecutions (the DPP) has the power to present an indictment regardless of the fact that there may have been some defect in the committal proceedings and the finding of an ex officio indictment in those circumstances will not produce an abuse of process, unless it would result in unfairness to the accused at trial : s 8(1) Criminal Procedure Act ; s 7, Director of Public Prosecutions Act 1986 and see generally R v Sepulveda [2003] NSWCCA 131 ; R v Janceski ; Grassby v The Queen (1989) 168 CLR 1 ; Barton v The Queen (1980) 147 CLR 75. Moreover, the court cannot go behind the issue of an ex officio indictment : Barton v The Queen. 83 Even assuming that the magistrate in the Children's Court found that there was no evidence to justify a finding of guilt on a "serious children's indictable offence", any ex officio indictment issued by the DPP would remain completely unaffected: Sergi v DPP & Anor. NSWCA (unreported) 10/9/91. 84 By the operation of cl 10 D of Part 53 District Court Rules and s 127 of the Criminal Procedure Act, that indictment was presented in the District Court when it was filed in the Registry. Section 130(2) of the Criminal Procedure Act vests the District Court with jurisdiction with respect to the conduct of proceedings on an indictment, as soon as the indictment is presented and the accused is arraigned. This Court was informed by Senior Counsel for the respondent that he did not plead to that indictment on arraignment, but again, that is of no consequence given that a plea of "not guilty" will be deemed to have been entered where the accused stands mute : s 155 Criminal Procedure Act. 85 Thus, the District Court had jurisdiction to try the respondent on the indictment filed in the Registry. I do not understand the respondent's counsel to have argued to the contrary. Had the Crown presented that indictment at trial, the submissions by the respondent's counsel below and in this Court suggest that no objection would have been taken. The submissions to McGuire DCJ proceeded on the basis that the respondent had been deprived of the committal procedures mandated by the Children (Criminal Proceedings) Act in respect of the charge of sexual intercourse without consent in circumstances of aggravation, being the fact that the complainant was under the age of 16 years. 86 It is not suggested that the indictment to which the respondent pleaded "not guilty" at trial was defective. It charged the same substantive offence, namely aggravated sexual intercourse without consent, as the indictment presented on 25 May 2005, albeit the circumstance of aggravation relied upon was (d) and not (a). In view of the respondent's discharge on the sequence 1 charge in the Children's Court, the trial indictment was also an ex officio indictment. 87 The respondent's argument assumes that the Children (Criminal Proceedings) Act, in particular s 31, operates to the exclusion of s 8(2) of the Criminal Procedure Act, in that the only means by which an indictable offence against a child can come before the District Court or Supreme Court for trial is by way of committal proceedings in the Children's Court. The argument necessarily embraces the presentation, in either of those courts, of an indictment charging an indictable offence as an alternative count to a serious children's indictable offence. This aspect of the respondent's submissions and its consequences are explored further below. In order to resolve this issue, it is necessary to undertake a brief analysis of the relevant legislation. The Legislative Scheme for Criminal Proceedings Against Children 88 The Children (Criminal Proceedings) Act consists of five Parts. Leaving to one side preliminary matters (Part 1), Part 2 is addressed to criminal proceedings generally, before any court, and deals with the age of criminal responsibility (s 5) and the application of those special principles arising out of children's vulnerability, dependency and immaturity (s 6). Section 7 provides that, "except as provided by this Act, a Local Court may not hear and determine criminal proceedings that the Children's Court has jurisdiction to hear and determine." (The Children's Court jurisdiction to hear and determine criminal proceedings is established by s 28 of the Act.) The remainder of the provisions in this Part deal with matters of a procedural nature (such as the commencement of proceedings by court attendance notice, exclusion of the public from hearings, non-publication of names, admissibility of admissions). Sections 16 to 21 provide for a regime of punishment, following a finding of guilt in relation to an indictable offence in a court other than the Children's Court. 89 It is convenient to deal briefly with Parts 4 and 5 of the Act. The former contains provisions pertaining to mistakes in the exercise of jurisdiction. It will be necessary to return to this Part below, in particular to s 44 and its proper construction. Part 5 contains miscellaneous provisions not presently relevant. 90 Part 3 regulates all criminal proceedings before the Children's Court. Importantly, s 27 applies the provisions of the Criminal Procedure Act, that apply to Local Courts and to any criminal proceedings before the Local Courts, to the Children's Court and to any criminal proceedings before the Children's Court. Division 3 of Part 3 consists of s 31 and is titled "Hearings". The remainder of the Part deals with the penalties available following a summary hearing in the Children's Court. 91 Section 31 relevantly provides :- (1) 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 shall be dealt with summarily. (2) Notwithstanding subsection (1) - (a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused); and (b) if the person informs the Children's Court … that the person wishes to take his or her trial according to law, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act. (3) Notwithstanding subsection (1) - (a) if a person is charged before the Children's Court with an indictable offence; and (b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken - (i) that having regard to all the evidence before the Children's Court, the evidence is capable of satisfying the jury beyond reasonable doubt that the person has committed an indictable offence; and (ii) that the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children's Court had formed the opinion referred to in section 62 of that Act. 92 The regime thereby established for the conduct of criminal proceedings against children in the Children's Court creates a presumption in favour of summary disposition. That presumption is displaced upon the election of the child for committal to trial, or upon the court reaching a conclusion that the charge should properly be tried before a jury. This approach is consistent with the principles underpinning the Children's Court jurisdiction, in that the least disruption to the child's home life, education and employment is a significant factor in the treatment of children by the courts (s 6). Greater emphasis is placed upon rehabilitation than upon the principles of punishment and retribution. 93 From its enactment in 1987, s 31 has largely remained in its current form. Prior to the repeal of the Justices Act 1902 on 7 July 2003, s 31(2) and (3) picked up the procedures set out in s 41 of the Justices Act, being those procedures that regulated the conduct of committal proceedings. The only relevant amendments made to s 31 since the repeal of the Justices Act have been the substitution of the corresponding provisions in the Criminal Procedure Act that govern committal proceedings. 94 The present s 8 of the Criminal Procedure Act was s 4 in that Act when the Children (Criminal Proceedings) Act came into effect. Section 4 (as it then was) provided :- (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. (2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment. (3) This section does not apply to offences that may be heard and determined in a summary manner only. (4) This section does not affect any law or practice that provides for an indictable offence to be heard and determined in a summary manner, whether with or without the consent of the accused. 95 It will be apparent that, as at the introduction of the Children's (Criminal Proceedings) Act, s 4 of the Criminal Procedure Act applied to indictable offences in the Children's Court, because they were not offences that could only be heard and determined in a summary manner (s4(3)). Section 4(3) remained in that form until the Crimes Legislation Amendment (Sentencing) Act 1999 amended the Criminal Procedure Act "to rationalise provisions relating to criminal procedure". The Act inserted new sections 7, 8 and 9 into the Criminal Procedure Act, being Part 2 titled "Disposal of Offences". Those provisions (the present sections 5, 6 and 7) introduced the phrase "is required to be dealt with summarily" in the following contexts :- 7 Certain offences to be dealt with on indictment (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 8 Certain offences to be dealt with summarily (1) The following offences must be dealt with summarily: (a) an offence that under this or any other Act is required to be dealt with summarily, (b) an offence that under this or any other Act is described as a summary offence, (c) an offence (not being an offence that under this or any other Act is required to be dealt with on indictment) for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years. (2) An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 9 Certain summary offences may be dealt with by Local Courts (1) An offence that is permitted or required to be dealt with summarily is to be dealt with by a Local Court constituted by a Magistrate sitting alone. (2) This section does not apply to an offence that, under this or any other Act, is required to be dealt with summarily otherwise than by a Local Court constituted by a Magistrate sitting alone. 96 Section 4 of the Criminal Procedure Act was amended accordingly, that is, by the substitution of the phrase "is required to be dealt with summarily" for "may be heard and determined in a summary manner only." 97 The change in expression appears to have arisen out of nothing more than a somewhat clumsy attempt to reconcile the language of s 4 with that of the new provisions. It was not designed to affect the operation of s 4. Nothing in the explanatory notes or the Second Reading speeches during the passage of the 1999 Act suggest anything to the contrary. The construction of the present s 8(3) must be informed, in my view, by its predecessor. It is not therefore correct to equate "shall be dealt with summarily" in s 31(1) of the Children's (Criminal Proceedings) Act with "is required to be dealt with summarily" in s 8 of the Criminal Procedure Act. 98 Section 31 does no more than direct the Children's Court as to the exercise of its jurisdiction. It does not direct the prosecuting authority or limit the jurisdiction of the District and Supreme Courts : see Bartalesi & Fragassi (1997) 93 A Crim R 274 at 276-277. It does not stipulate that indictable offences may only be heard and determined by way of summary proceedings, nor does it require or demand that indictable offences be dealt with only by way of committal proceedings. The disposition of the proceedings depends upon a number of variables. 99 In Bartalesi, this Court considered the operation of the then s 4 of the Criminal Procedure Act together with the "requirement" that certain offences be dealt with summarily, unless the accused or the prosecution elects otherwise (s 260). The Court held that ex officio indictments were available to bring charges before the District Court which had not been the subject of a committal. The decision is equally applicable to the circumstances of the present appeal. In the course of Handley JA's judgment, further difficulties inherent in the position taken by the applicants were noted (at 278) :- When charges of indictable offences are brought in the Local Court, which are not to be heard and determined summarily, committal proceedings are conducted and the evidence for the prosecution is taken (Justices Act 1902 (NSW) s 41(1)). At the end of the evidence the magistrate is required to either discharge the defendant or commit him for trial (s 41(6)). The magistrate commits if he concludes that there is a reasonable prospect that a jury would convict the defendant of an indictable offence …. As Gleeson C. J. said in Hull (1989)16 NSWLR 385 at 391; 41 A Crim R 262 at 268 : '…it should also be noted that if the magistrate, following a committal proceeding, determines to commit a person to trial in relation to an indictable offence, the offence or offences in respect of which there is a committal order need not be identical with the offences that were the subject of the original charge. The magistrate on the basis of the evidence before him may re-charge the defendant himself.' Moreover as he said in Butler (1991) 24 NSWLR 66 at 68; 56 A Crim R 231 at 233: '..there is nothing unusual about there being a difference between the charges which were considered by the committing magistrate and the charges ultimately framed by a Crown Prosecutor for inclusion in an indictment. The original charges against the accused person would, in most cases, have been framed by a police officer.' See also Kolalich v Director of Public Prosecutions (NSW) (1991) 173 CLR 222 at 226. 100 The application of the Criminal Procedure Act to the conduct of committal proceedings in the Children's Court (s 27 of the Children Criminal Proceedings) Act) brings with it the same consequences adverted to by Handley JA and Gleeson CJ referred to above. Divisions 2 – 4 of Part 2 of Chapter 3 set out the procedure to be followed in committal proceedings generally. Hence, a Children's Court magistrate is bound by ss 55 to 98 (excepting ss 60 and 61) of the Criminal Procedure Act in the conduct of committal proceedings for indictable offences, in the same way that a Local Court magistrate is bound by those provisions. Section 65 is relevantly in the same terms as s 41 of the repealed Justices Act. 101 There is therefore no impediment to the committal for trial of a child, pursuant to s 31 of the Children (Criminal Proceedings) Act, on an indictable offence other than that with which the child is charged. Such a result is plainly at odds with the contention that the indictable offence upon which the child is arraigned for trial in the District Court can only be the offence the subject of the committal proceedings. Yet that contention would appear to me to be the logical extension of the respondent's submissions. Resolution 102 I am driven to the conclusion that the ex officio indictment presented at the respondent's trial was procedurally valid. I can see no other basis for distinguishing between committal proceedings conducted in the Children's Court and committal proceedings generally, for the purposes of determining the availability and validity of an ex officio indictment. The special procedures thought appropriate to an essentially protective jurisdiction such as the Children's Court jurisdiction cannot, in my view, displace the undoubted power of the DPP to ensure that a person accused of an indictable offence is brought to trial, in circumstances where that accused has been discharged at committal. 103 It was held by this Court in Janceski that the presentation of a valid indictment and the entry of a "not guilty" plea before the jury, marks the commencement of the trial :- The presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial: R v Nicolaidis (1994) 33 NSWLR 364 at 367. …… The proceedings for trial on indictment commenced upon the filing or presentation of a valid indictment. When the accused is first arraigned and pleads "not guilty" he is "taken to have put himself or herself on the country for trial": s 154 of the Act. Thereafter the court has jurisdiction to make orders with respect to the conduct of the proceedings: s 130(2) of the Act. [219] The presentation of an indictment is, therefore, the most fundamental of the procedures that attend a criminal trial for an indictable offence. So far as the courts in this State are concerned, there is neither any other procedural step necessary nor any alternative step available for the commencement of a criminal trial in the District or Supreme Court. The court cannot refuse to receive an indictment nor can it refuse to exercise its jurisdiction obtained from the presentation of the indictment unless to do so would be an abuse of process . [232] (per Howie J ; italics not in original) 104 The respondent's counsel below expressly refrained from any application to stay the indictment as an abuse of process. No argument has been addressed to this Court on that aspect of the proceedings, nor does it have any present relevance to the determination of the appeal. The sole basis upon which his Honour purported to remit the matter to the Children's Court was the absence of jurisdiction in the District Court. 105 I note in passing that s 20 of the Criminal Procedure Act provides that an indictment may not be amended after it is presented, except by the prosecutor with the leave of the court, or with the consent of the accused. For the purposes of the provision, "indictment" includes an ex officio indictment (Sepulveda) and an amendment of an indictment includes the substitution of an indictment. There was no evidence before this Court of the leave of the District Court having been obtained for the substitution of the indictment presented at trial for the indictment filed in the Registry. It was noted in R v Taylor [2003] NSWCCA 194 by Bell J that the accused's consent to the substitution of a new indictment may be implied in the absence of any objection to that course. Where the respondent pleaded "not guilty" to the substituted indictment and raised no objection to the form of the indictment itself, I would regard the respondent's consent as having been impliedly obtained. 106 I return briefly to a consideration of some of the ramifications of the respondent's argument. That argument, as I have noted, assumes that the District Court lacked jurisdiction to arraign him at trial on any charge, other than a "serious children's indictable offence". Jurisdiction is unaffected by the entry of a plea to an indictment ; the court either has jurisdiction or it hasn't. It follows then, according to the respondent, that the Crown would effectively be barred from finding a bill for a lesser charge (an indictable offence) than that upon which the young person was committed for trial (a "serious children's indictable offence"), even where the young person is prepared to plead guilty to the lesser charge. Similarly, the Crown would be barred from presenting an indictment charging a different offence arising out of substantially the same facts as the offence upon which the child was validly committed for trial. One only has to posit an example removed from the circumstances of this case to recognise the flaw in the respondent's position. Where a young person is committed for trial from the Children's Court on a charge of murder, it has never been doubted that the Crown has the power to present an indictment for Malicious Wounding in the Supreme Court. 107 I am of the view that the District Court had jurisdiction to try the respondent on the indictment presented on 14 March 2006 and that his Honour was in error in making the order under s 44 of the Children (Criminal Proceedings) Act. The Limits of s 44 of the Children (Criminal Proceedings) Act 108 It remains to consider whether the removal of the case to the Children's Court was available pursuant to s 44 of the Children (Criminal Proceedings) Act. Whilst this was not a point taken in argument by the DPP on the hearing of the appeal, I am doubtful that the terms of s 44 authorised the order made in the instant case. 109 Section 44 appears in Part 4 of the Act titled "Mistake In Exercise of Jurisdiction". The Part consists of ss 43 to 48. Section 43 is a definitional provision, s 46 has been repealed, s 47 addresses the issue of damages and compensation pursuant to a decision taken under the Part, and s 48 preserves the operation of s 5 (the provision relating to the age of criminal responsibility). 110 Section 44 appears under the heading "Remission of cases on account of defendant's age". Whilst the terms of the section refer to a want of jurisdiction "because of any provision of this Act", the whole of the Part appears to be premised upon a lack of jurisdiction pursuant to s 28 of the Act. 111 Section 35 of the Interpretation Act 1987 (NSW) provides that headings to provisions of an Act "shall be taken to be part of the Act" only if they are headings to Parts, Divisions or Subdivisions. However, s 34 provides that the material which may be considered in the interpretation of a provision of an Act includes "all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer". Section headings may therefore be used "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act …) : s 34(2)(a) and see Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 621 ; Pelechowski v Registrar of the Court of Appeal (NSW) [1999] HCA 19. 112 The conclusions I have reached above, as to the jurisdiction of the District Court to conduct a trial on an ex officio indictment, following the absence of committal proceedings in the Children's Court, re-enforce the view that s 44 is only available where the alleged want of jurisdiction relates to the age of the defendant. Accordingly, the order made by McGuire DCJ was not validly made under that provision. Proposed Orders 113 I agree with Basten JA that the effect of McGuire DCJ's decision was the quashing of the indictment and that the Director's appeal properly lay under s 5C of the Criminal Appeal Act. I would not dismiss the appeal for that reason alone. 114 For the reasons I have outlined, I would uphold the appeal and make the following orders :- 1. Appeal allowed. 2. Order of McGuire DCJ remitting the matter to the Children's Court, made on 15 March 2006 is set aside. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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