R v Juckes, Blomeley & Hutchins; ex parte Attorney-General
[2017] QCA 33
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Juckes, Blomeley & Hutchins; ex parte Attorney-General[2017] QCA 33
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R v Juckes, Blomeley & Hutchins; ex parte Attorney-General[2017] QCA 33
Reported at [2017] 2 Qd R 582
R v Juckes, Blomeley & Hutchins; ex parte Attorney-General[2017] QCA 33
Reported at [2017] 2 Qd R 582
SUPREME COURT OF QUEENSLAND
CITATION: | R v Juckes; Blomeley; Hutchins; Ex parte Attorney-General (Qld) [2017] QCA 33 |
PARTIES: | R v JUCKES, Arthur Chamberlain (first respondent) BLOMELEY, Mark Brenton (second respondent) HUTCHINS, Joshua Graeme (third respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 230 of 2016 DC No 487 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | Reference under s 668A Criminal Code |
ORIGINATING COURT: | District Court at Cairns – Unreported, 5 August 2016, Harrison DCJ |
DELIVERED EX TEMPORE ON: |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 March 2017 |
JUDGES: | Fraser and Morrison JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: |
Answer: “Yes”. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – MISCELLANEOUS MATTERS – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – where the respondents are to be tried on one count of assault occasioning bodily harm whilst in company with a circumstance of aggravation in the District Court – where one defendant is also to be tried on one count of assault occasioning bodily harm with an additional circumstance of aggravation – where pursuant to s 590AA Criminal Code a judge of that court ruled that because the expression “the court” was defined for the purposes of the Justices Act to mean the Magistrates Court, the District Court lacked power to transfer a matter to the Supreme Court – where the Attorney-General refers to the Court of Appeal under s 668A Criminal Code (Qld) for its consideration and opinion the question of whether the District Court have the power to remand a defendant to take his or her trial or for sentence before another and proper court and to, in a proper case, grant or enlarge bail – whether the reference is of a question of law of general application and importance Acts Interpretation Act 1954 (Qld), s 32A Acts Interpretation Act Amendment Act 1991 (Qld), s 26 Criminal Code (Qld), s 339(3), s 590AA, s 668A District Court of Queensland Act 1967 (Qld), s 60, s 61 Justices Act 1886 (Qld), s 129 Vicious Lawless Association Disestablishment Act 2013 (Qld), s 7(1) R v Kay; Ex parte Attorney-General (Qld) [2016] QCA 269, cited R v NP; Ex parte Attorney-General (Qld) [2013] 1 Qd R 368; [2012] QCA 116, cited R v PV; Ex parte Attorney-General (Qld) [2005] 2 Qd R 325; [2004] QCA 494, cited R v SAP; ex parte Attorney-General [2006] 1 Qd R 367; [2005] QCA 284, cited |
COUNSEL: | M R Byrne QC, with S J Hedge, for the appellant J J Allen QC for the first and second respondent No appearance for the third respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the first and second respondent No appearance for the third respondent |
- FRASER JA: Pursuant to s 668A(1) of the Criminal Code, the Attorney-General has referred to the Court for its consideration and opinion the following point of law: “Does the District Court of Queensland have the power pursuant to section 129 of the Justices Act 1886 to remand a defendant to take his or her trial or for sentence before another and proper court and to, in a proper case, grant or enlarge bail?”
- The point of law arose in the following circumstances. The respondents were committed for trial to the District Court of Cairns on one charge of assault occasioning bodily harm whilst in company with a circumstance of aggravation under the Vicious Lawless Association Disestablishment Act 2013. An indictment was present in that court conjointly charging the respondents with that offence and circumstance of aggravation. The respondent Hutchins was also charged with an additional circumstance of aggravation under the same Act. Pursuant to s 339(3) of the Criminal Code and s 7(1) of the Vicious Lawless Association Disestablishment Act, the maximum penalty for the offences charged against the respondents Juckes and Blomeley was 25 years’ imprisonment, and the maximum penalty for the offence charged against the respondent Hutchins was 35 years’ imprisonment. The District Court therefore lacked jurisdiction to hear the cases against any of the respondents; see District Court of Queensland Act 1967 sections 60 and 61. For that reason, the Crown applied under s 590AA of the Criminal Code for an order that the District Court transfer the matter to the Supreme Court for trial. On 5 August 2016, a judge of the District Court refused that application.
- The Crown’s application invoked s 129 of the Justices Act 1886. That section relevantly provided that:
“If in any case a defendant is committed to take the defendant’s trial or for sentence before a court which has not jurisdiction to try the case or pass sentence upon the defendant … the committing justices or any other justices may, at any time before the time appointed for holding such court direct the defendant and the warrant of commitment (if any) to be brought before them … and may … cancel the warrant or commitment, and may commit the defendant afresh to take the defendant’s trial or for sentence before another and the proper court …. or if the defendant is brought before the court at the time appointed for holding the same, the court may, notwithstanding such defect of jurisdiction … remand the defendant to take the defendant’s trial or for sentence before another and the proper court, and may, in a proper case, grant the defendant bail or enlarge the defendant’s bail if the defendant has already been granted bail.”
- The judge reasoned that because the expression “the court” was defined for the purposes of the Justices Act as the Magistrates Court, the District Court lacked power to transfer a matter before it in which it did not have jurisdiction to the Supreme Court.
- Section 4 of the Justices Act defines “court” as meaning a Magistrates Court. As the Attorney-General pointed out, s 32A of the Acts Interpretation Act 1954 makes definitions in any Act applicable, except so far as the context or subject matter otherwise indicates or requires. The Attorney-General also pointed out that when the definition of “Court” was added by the Justices Act Amendment Act 1964, it was introduced by the phrase:
“In this Act, unless the context otherwise indicates or requires…”
That introductory phrase subsequently was removed pursuant to provisions of the Reprints Act 1992, it having become redundant as a result of the enactment by s 26 of the Acts Interpretation Act Amendment Act 1991, which introduced s 32A of the Acts Interpretation Act. Thus, it is and always has been the case that the definition of “Court” applies unless the context otherwise indicates or requires.
- The context in which the term “court” is used in s 129 requires that the definition be regarded as inapplicable. The references in s 129 to the word “justices” are references to Justices of the Peace having jurisdiction, and they include a magistrate or Magistrates Court; see Justices Act section 4. The word “court” in the first clause is necessarily a reference to the court to which the defendant has been committed for trial or sentence. That, in itself, reveals that the definition of “court” as Magistrates Court is inapplicable in the first clause of s 129. There is then nothing to rebut the usual expectation that the same word is used throughout the section as bearing the same meaning.
- Furthermore, the section provides alternative remedies for a case in which, after committal, it is found that the court to which the defendant has been committed lacks jurisdiction. The first remedy which applies only before the time appointed for holding such court, is that the Magistrates Court which has committed the defendant to the other court may, in effect, retract the committal and commit the defendant afresh to “another and the proper court”, meaning a court which possesses jurisdiction. The alternative remedy introduced by the word “or” applies only where the defendant is brought before the court to which the defendant was committed. In that case, the court may remand the defendant for trial or sentence before “another and the proper court”. To attribute to the word “court” the meaning of a Magistrates Court would deprive both alternatives of sensible meaning. It cannot have been the legislative intention that a Magistrates Court would commit a defendant for trial or sentence before itself. That could not be achieved by the grant of power to commit the defendant to appear before another court. And the second alternative obviously does not contemplate the defendant being brought before the Magistrates Court for the purpose of being remanded for trial or sentence before the same Court. It seems clear that the word “court” in s 129 must comprehend a court to which a defendant has been committed or might have been committed for trial or sentence. Thus it comprehends the District Court, the Children’s Court, and the Supreme Court.
- The respondent Hutchins did not wish to be heard in this reference, but the respondents Blomeley and Juckes were represented by senior counsel. The submission on their behalf appropriately conceded that the argument on behalf of the Attorney-General was persuasive. Senior counsel for those respondents also submitted that the Attorney-General’s argument derived some support from the terms of sections 223 and 224, in which references to the court in some subsections clearly were references to the District Court.
- It is not necessary to discuss the submissions about the legislative history made on behalf of the Attorney-General, or other provisions in the Justices Act submitted to be consistent with the interpretation I prefer, but I accept that those matters do support that interpretation. It was also uncontentious as between the parties, and I accept, that the question identified in the reference concerns a point of law which has arisen in relation to a direction or ruling under s 590AA given by another court as to the conduct of a trial or pre-trial hearing, within the meaning of s 668A of the Criminal Code. If it is necessary that the point of law be a matter of general importance to make use of the procedure under s 668A appropriate, then that is the case here; see R v PV; Ex parte Attorney-General [2005] 2 Qd R 325 at paragraph 5, R v SAP; Ex parte Attorney-General [2006] 1 Qd R 367 at paragraphs 19 to 20, R v NP; Ex parte Attorney-General [2013] 1 Qd R 368 at paragraphs 12 and 14, but see also R v Kay; Ex parte Attorney-General [2016] QCA 269 at paragraph 25.
- In my opinion, for the reasons I have given, the question asked of the Court should be answered, “yes”.
- MORRISON JA: I agree and wish to add only this. Section 108 of the Justices Act as originally enacted empowered the Justices to commit a defendant for trial before “some court of competent jurisdiction”. Reference then to s 126 as enacted in 1886 shows that that court could be the Supreme Court or District Court, those terms being used in that section which directed the transfer of all materials once a defendant was committed to be tried before the Supreme Court or a District Court, if appropriate. I agree with the proposal to answer the question “yes”.
- MULLINS J: I agree with the presiding Judge’s reasons and the proposed order to answer the question “yes”.