R v SC[2021] QDCPR 4

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application concerns the construction of s 181 of the Domestic and Family Violence Protection Act 2012 (the DV Act), which deals with the prosecution of offences for contravention of a domestic violence order with a maximum penalty of more than three years imprisonment.
2. [2]
   Specifically, it concerns whether the District Court has jurisdiction to hear and determine counts of contravention of a domestic violence order, aggravated offence, that have been transmitted from the Magistrates Court by registry committal or that have been preferred by ex officio indictment.
3. [3]
   It requires construction of certain provisions of the DV Act, and consideration of the District Court of Queensland Act 1967 (the DCQ Act), the Criminal Code Act 1899 (the Code), and the Justices Act 1886 (the JA).
4. [4]
   The defendant is charged on a 14 count indictment with:

   1. One count of unlawful stalking contravening a protection order (domestic violence offence) between 14 October 2018 and 23 February 2019 (count 1);

2. One count of rape (domestic violence offence) on a date unknown between 31 December 2018 and 1 February 2019 (count 6); and
3. 12 counts of contravening domestic violence order, aggravated offence, pursuant to s 177(2)(a) of the DV Act on various dates between 30 November 2018 and 22 February 2019, (counts 2 to 5 inclusive and 7 to 14 inclusive).

5. [5]
   All of the offences are alleged to have been committed against the same complainant as part of a course of conduct.
6. [6]
   The process adopted was somewhat unusual. The Crown applied under s 590AA of the Code for a ruling that the court has jurisdiction to hear and decide the 12 counts of contravention of domestic violence order, aggravated offence, under s 177(2)(a) of the DV Act. The defendant contends that the court lacks jurisdiction and submits that those counts on indictment should be quashed. However, the defendant did not apply to quash the indictment pursuant to s 596 of the Code nor demurred pursuant to s 605.
7. [7]
   Originally, the Crown also sought a ruling that evidence of the prior domestic relationship between the complainant and defendant (including the domestic violence protection order and two previous convictions for assaulting the complainant) was admissible on any trial on the indictment.  The defendant conceded that point so it is unnecessary to rule upon it.

Chronology

8. [8]
   The complainant and the defendant had been married but separated before the alleged offending.  A protection order was made on 27 November 2017 naming the complainant as the aggrieved and the defendant as the respondent.  This order was varied and remained in place during the period of the alleged offending.
9. [9]
   On 15 October 2018 the defendant pleaded guilty to two counts of assault occasioning bodily harm (domestic violence offence) committed against the complainant in November 2017. By then the defendant had served 324 days in presentence custody, which was not declarable but was taken into account in imposing terms of imprisonment. The defendant received an immediate parole release date.  The domestic violence protection order was extended for a further five years.
10. [10]
    All of the counts on the current indictment are alleged to have been committed by the defendant against the same complainant between October 2018 and February 2019, shortly after the defendant was released on parole.
11. [11]
    On 22 February 2019, the defendant was arrested and remanded in custody. 
12. [12]
    On 4 June 2019 the defendant consented, through a registry committal pursuant to s 114 of the JA, to being committed for trial on a total of nine offences:

    1. On one bench charge sheet, five charges of contravention of a domestic violence order (aggravated offence) pursuant to s 177(2)(a) of the DV Act and two charges of unlawful stalking contravening a protection order; and
    2. On another bench charge sheet, one charge of contravention of a domestic violence order (aggravated offence) pursuant to s 177(2)(a) of the DV Act and one charge of unlawful stalking contravening a protection order.
13. [13]
    The verdict and judgment record was signed by the Registrar of the Mareeba Magistrates Court.
14. [14]
    On 16 September 2019, based on offences disclosed in the depositions, an indictment was presented in the District Court at Cairns charging the defendant with one count of unlawful stalking contravening a protection order (covering the entire period of the alleged offending), one count of rape, and 12 counts of contravention of a domestic violence order (aggravated offence).  It is unclear whether all of the 12 counts of aggravated contravention are particulars of the unlawful stalking, or involve separate conduct.  The proceeding is listed for trial in sittings commencing 22 February 2021.
15. [15]
    Despite electing a registry committal, the defendant now contends that the court does not have jurisdiction to hear and determine any of the counts of contravention of domestic violence order, aggravated offence, pursuant to s 177(2)(a) because of the combined effect of ss 181(4), (6) and (8) of the DV Act.

The contentions

16. [16]
    The contentions of the defendant may be summarised as follows:

    1. the effect of subsections 181(4) and (6) of the DV Act is that a proceeding on a charge for an offence under s 177(2)(a) must be heard and determined summarily, unless a magistrate has expressly abstained from jurisdiction;
    2. the requirements of s 181(6) are mandatory;
    3. those requirements were not complied with in this case because a magistrate did not abstain from dealing summarily with the charges, or hear and decide the matters in s 181(6) at all. Six of the charges proceeded by way of registry committal and six additional charges were preferred on ex officio indictment after committal;
    4. as those charges were committed by registry committal pursuant to s 114 of the JA rather than the committal process under s 104 of the JA, the requirements of s 181(8) of the DV Act were not met;
    5. the power in s 561(2) of the Code to present an ex officio indictment may only be exercised for an indictable offence within the jurisdiction of the court, and by virtue of the non-compliance with s 181 of the DV Act these offences are not within the jurisdiction of the court;
    6. the court has no jurisdiction to hear and determine any of the 12 counts on indictment pursuant to s 177(2)(a), whether those transmitted by registry committal or the new charges preferred on ex officio indictment;
    7. the jurisdiction of the District Court conferred by ss 60 and 61 of the DCQ Act ought be read subject to the provisions of s 181 of the DV Act; and
    8. the court should make an order quashing the 12 counts of contravention of domestic violence order, aggravated offence, on the indictment pursuant to s 596(2) of the Code on the basis that the court has no jurisdiction to determine them. In the alternative, pursuant to s 129 of the JA (recommittal in case of error) the court should direct that the defendant is remanded to take his trial on those charges before the Magistrates Court.^[1]
17. [17]
    The contentions of the Crown may be summarised as follows:

    1. the offences under s 177(2)(a) are indictable offences under the DV Act;
    2. indictable offences can be charged in an indictment;
    3. section 181 of the DV Act, properly construed, does not exclude a registry committal process. But even if it does, that does not affect the Crown’s power under s 561 of the Code to present indictable offences on indictment;
    4. section 181 of the DV Act does not override the clear power in s 560 of the Code and the “uncontrolled power”^[2] of indictment without prior committal proceedings in s 561 of the Code (ex officio indictments);
    5. the latter power may be used in circumstances where a person has been committed for trial for an offence and the depositions disclose evidence of a different offence or other offences. In such circumstances, it is convenient and just that an indictment charging the different or other offences should be presented by the Crown Prosecutor;^[3]
    6. section 181(4) of the DV Act should be read as subject to s 561 of the Code;
    7. notwithstanding s 181(4) of the DV Act, the Crown is not only entitled but required to prefer those charges on indictment by s 560 of the Code;
    8. the court should order that it has jurisdiction to hear and determine counts 2 to 5 inclusive and 7 to 14 inclusive on Indictment 500/19.

Relevant statutory provisions

18. [18]
    Before considering s 181 of the DV Act, it is useful to start with the relevant jurisdictional provisions of the Code and the DCQ Act.
19. [19]
    Section 3 of the Code defines the division of offences as follows:

3  Division of offences

1. (1)
   Offences are of 2 kinds, namely, criminal offences and regulatory offences.
2. (2)
   Criminal offences comprise crimes, misdemeanours and simple offences.
3. (3)
   Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.
4. (4)
   A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
5. (5)
   An offence not otherwise designated is a simple offence.

[underlining added]

20. [20]
    Section 1 of the Code defines “indictment” as “a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction.”
21. [21]
    Chapter 59 of the Code, s 553, ‘Jurisdiction’, states: “The jurisdiction of courts of justice with respect to the trial of offenders is set forth in the laws relating to the constitution and jurisdiction of those courts respectively.”
22. [22]
    The laws relating to the jurisdiction of the District Court are contained in the District Court of Queensland Act 1967 (the DCQ Act).
23. [23]
    By s 60 of the DCQ Act, “The District Court has jurisdiction to inquire of, hear, and determine all indictable offences, wheresoever committed, save as hereinafter excepted.”  There follow certain exceptions. For example, s 61 provides that the District Court does not generally have jurisdiction to try a person charged with an indictable offence if the maximum penalty for the offence is more than 20 years. And s 62 provides that the District Court does not have jurisdiction to try a child charged with an indictable offence, unless otherwise expressly provided by an Act.
24. [24]
    There is no relevant exception in the DCQ Act for offences under the DV Act, generally or specifically.  On the face of s 60 of the DCQ Act, the District Court has jurisdiction to hear and determine indictable offences under the DV Act.
25. [25]
    Section 554 of the Code states that “The practice and procedure relating to the examination and committal for trial of persons charged with indictable offences are set forth in the laws relating to justices of the peace, their powers and authorities.” That engages the Justices Act 1886.
26. [26]
    Chapter 60 of the Code deals with the presentation of indictments.
27. [27]
    Section 560 provides, relevantly:

560  Presenting indictments

1. (1)
   When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.
2. (2)
   The indictment is to be signed and presented to the court by a Crown Law Officer, a Crown prosecutor or some other person appointed in that behalf by the Governor in Council.
3. (3)
   If a person has been committed for trial for an indictable offence that may be tried in the District Court, a Crown Law Officer or a Crown prosecutor may present the indictment to either the Supreme Court or District Court.

[28] Section 561 provides, relevantly:

561  Ex officio indictments

1. (1)
   A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.
2. (2)
   A Crown prosecutor or a person appointed by the Governor in Council to sign and present indictments in any court of criminal jurisdiction may sign and present an indictment in that court against any person for any indictable offence within the jurisdiction of the court, whether the accused person has been committed for trial or not and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for an offence before that court.

[underlining added]

29. [29]
    The Crown referred, by way of analogy, to Chapter 58A of the Code, Indictable offences dealt with summarily. It deals with charges of indictable offences that must be heard and decided summarily. For example: on prosecution election (s 552A); unless the defendant elects for a jury trial (s 552B); or for a “relevant offence” as defined (s 552BA). Those sections are all subject to s 552D.
30. [30]
    Section 552D(1) requires that a Magistrates Court must abstain from dealing summarily with a charge under ss 552A, 552B or 552BA if satisfied, at any stage, and after hearing submissions by the prosecution and defence, that because of the nature or seriousness of the charge or other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction. A Magistrates Court must also abstain from dealing summarily with a charge under section 552BA if satisfied, on an application made by the defence, that because of exceptional circumstances the charge should not be heard and decided summarily: s 552D(2). If the Magistrates Court abstains from jurisdiction then the proceeding must be conducted as a committal proceeding: s 552D(3). None of those provisions appear to preclude a defendant consenting to a registry committal.
31. [31]
    The defendant submits that the Code and DCQ Act provisions must be read subject to the specific statutory regime in s 181 of the DV Act.
32. [32]
    In that context, I turn to the relevant provisions of the DV Act.
33. [33]
    The proper construction of a statutory provision requires consideration of the text in context, and by reference to the language of the statute viewed as a whole.^[4]
34. [34]
    “Court” is defined in s 6 of the DV Act:

Court means—

1. (a)
   if an application is made to a Magistrates Court—the Magistrates Court; or
2. (b)
   if an application is made to a magistrate—the magistrate; or
3. (c)
   if a court convicts a person of a domestic violence offence—the court that convicts the person; or
4. (d)
   if the Childrens Court is hearing a child protection proceeding—the Childrens Court.

35. [35]
    Part 5, Court Proceedings, Division 1, Jurisdiction, s 137(1) of the DV Act requires that “A Magistrates Court exercising jurisdiction under this Act must be constituted by a magistrate.”
36. [36]
    Section 143(a) states that:

To remove any doubt, it is declared that—

1. (a)
   for a proceeding under this Act before a Magistrates Court or magistrate—the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with this Act; …

37. [37]
    The offence provision is contained in the DV Act, Part 7, Offences. Section 177^[5]  provides, relevantly:

177  Contravention of domestic violence order

(1)  This section applies if a respondent against whom a domestic violence order has been made—

1. (a)
   was present in court when the order was made; or
2. (b)
   has been served with a copy of the order; or
3. (c)
   has been told by a police officer about the existence of the order.

(2)  The respondent must not contravene the order.

Maximum penalty—

1. (a)
   if, within 5 years before the commission of an offence against this subsection, therespondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or
2. (b)
   otherwise—120 penalty units or 3 years imprisonment.

38. [38]
    Section 181 of the DV Act provides:

181  Prosecution of offences

1. (1)
   This section applies to offences against this Act.
2. (2)
   An offence that has a maximum penalty of more than 3 years imprisonment is an indictable offence.
3. (3)
   A proceeding for an offence that is not an indictable offence is by way of summary proceedings under the Justices Act 1886.
4. (4)
   Subject to subsection (6), a proceeding on a charge for an indictable offence must be heard and decided summarily.
5. (5)
   The maximum term of imprisonment that may be imposed on a summary conviction of an indictable offence is 3 years imprisonment.
6. (6)
   A Magistrates Court must abstain from dealing summarily with a charge for an indictable offence—

1. (a)
   if satisfied, at any stage, and after hearing any submissions by the prosecution anddefence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction; or
2. (b)
   if satisfied, on an application made by the defence, that because of exceptionalcircumstances the charge should not be heard and decided summarily.

7. (7)
   If the court abstains from jurisdiction—

1. (a)
   the court must stop treating the proceeding as a proceeding to hear and decide thecharge summarily; and
2. (b)
   the proceeding for the charge must be conducted as a committal proceeding; and
3. (c)
   the defendant’s plea at the start of the hearing must be disregarded; and
4. (d)
   the evidence already heard by the court must be taken to be evidence in the committalproceeding.

8. (8)
   The Justices Act 1886, section 104 must be complied with for the committal proceeding. [underlining added]

39. [39]
    The current version of s 181 was inserted into the DV Act by the Criminal Law (Domestic Violence) Amendment Act 2015, which also amended s 177(2)(a) to increase the maximum penalty for that offence to 5 years imprisonment.  The Explanatory Note for the Criminal Law (Domestic Violence) Amendment Bill 2015 does not shed any light on the interaction of this provision with the other legislation referred to above. The Explanatory Note stated:

Clause 8 omits section 181 (Prosecution of offences) and replaces it with a new section which provides that an offence under the Domestic and Family Violence Protection Act 2012 that has a penalty of more than three years will be an indictable offence. Further it provides that a proceeding on a charge for an indictable offence will be heard summarily. This will apply in relation to a charge under section 177(2)(a) as amended by the Bill. However, a Magistrates Court must abstain from dealing summarily with a charge for an indictable offence under this Act if satisfied, either because of the nature or seriousness of the offence or any other relevant consideration, the defendant may not be adequately punished on summary conviction, or if satisfied, that because of exceptional circumstances, the charge should not be heard summarily. The maximum term of imprisonment which can be imposed on summary conviction for an indictable offence is three years imprisonment.

40. [40]
    I turn now to the relevant provisions of the Justices Act 1886.
41. [41]
    Division 5 of the JA deals with Examination of Witnesses. Section 104 (which is referred to in s 181(7) of the DV Act) sets out the procedure for examination of witnesses in relation to an indictable offence.  It must be read in the context of the preceding sections in the JA.
42. [42]
    Under s 103B(1) JA, a magistrate has an overall supervisory responsibility for any committal proceeding coming before a Magistrates Court at a place where the magistrate is appointed to constitute a Magistrates Court. Section 103B(3)(c) provides that subsection (1) does not affect the operation of the provisions of this division relating to registry committals.
43. [43]
    Under s 4 JA, “registry committal” is defined to mean “a committal by the clerk of a court under an order under part 5, division 7A.”
44. [44]
    In Part 5, Proceedings in case of indictable offences, Division 7A, s 114 confers power on a clerk of the court to conduct a registry committal if certain preconditions are satisfied.  The first is that “the indictable offence is not to be heard and decided summarily”: s 114(1)(a). An order under subsection (1) has effect as if it were an order of justices: s 114(5).  That is the process that purported to occur for the first six charges in this case.
45. [45]
    Section 116, headed “Limited application of divs 5 to 7 for registry committals”, relevantly provides:

    1. (1)
       If there is a registry committal, subject to subsection (2), it takes the place of the procedures relating to committal for trial or sentence that would otherwise apply, or would otherwise continue to apply, under divisions 5, 6 and 7.

[underlining added]

46. [46]
    Section 117 then provides:

117  Application of registry committals to indictable offences under other Acts

1. (1)
   This section applies to an offence against a provision of another Act if—

   (a)     the Act (the other Act) provides that the offence is an indictable offence; and

(b)     whether or not the other Act allows for the summary conviction of a person charged with the offence, it makes provision, whether or not by reference to this Act, for the court to proceed by way of a committal proceeding in relation to the offence.

Example—

Under the Property Occupations Act 2014, section 225, a charge for an indictable offence under that Act, depending on circumstances as provided for in the section, at the level of a Magistrates Court, either could be heard and decided summarily, or could be the subject of a committal proceeding, effectively as provided for under this Act.

2. (2)
   To remove any doubt, it is declared that if a person is charged with the offence, and the offence is not to be heard and decided summarily, the person may be committed for trial or sentence on the basis of a registry committal.
3. (3)
   If there is a registry committal, it takes the place of any committal proceeding otherwise provided for in the other Act.  [underlining added]

Consideration

47. [47]
    Applying s 117 of the JA, the relevant offence under the DV Act is an indictable offence. Although the DV Act allows for the summary conviction of a person charged with that offence, it also “makes provision, whether or not by reference to this Act [the Justices Act], for the court to proceed by way of a committal proceeding in relation to the offence”: s 117(1)(b) JA. Under the DV Act s 181(4), a charge for an indictable offence must be heard and decided summarily, subject only to subsection (6). 
48. [48]
    For a proceeding under the DV Act before a Magistrates Court or magistrate, the provisions of the JA apply to the proceeding unless the application of that Act is inconsistent with the DV Act: Section 143(a).
49. [49]
    In this case, all of the charges of unlawful stalking and contravention of domestic violence offence (aggravated offence) in the Magistrates Court proceeded by way of registry committal under s 114 JA, the defendant electing to be committed for trial by a jury. On the evidence filed on this application, at no stage did a magistrate abstain from dealing summarily with those charges, whether after hearing any submissions from the parties or on an application by defence.
50. [50]
    In oral submissions, defence counsel submitted that a registry committal pursuant to s 114 of the JA may only validly occur where the precondition in subsection (1)(a) is met: that “the indictable offence is not to be heard and decided summarily”. Defence counsel submitted that that precondition was not satisfied in this case because the requirements in s 181(6) of the DV Act were mandatory and had not been complied with. [51] Although the matter is arguable, on this issue I prefer the defendant’s construction. In my view, the preferable construction is that the combined operation of ss 181(4), (6) and (8) of the DV Act displaces or overrides the process in s 114 JA for a registry committal.

52. [52]
    Section 181(4) of the DV Act, when construed in context and by reference to the language of that Act viewed as a whole, mandates that an indictable offence must be heard and decided summarily unless a magistrate abstains from jurisdiction under s 181(6).
53. [53]
    The circumstances in which the Magistrate Court, constituted by a magistrate exercising jurisdiction under the DV Act, must abstain from dealing summarily with a charge for an indictable offence are identified in s 181(6). The use of the word “satisfied” in s 181(6) imposes a positive obligation on a magistrate, when a charge for an indictable offence is before her or him, to consider and decide certain factual matters. In those circumstances, subsection (6) requires the magistrate to abstain from jurisdiction if “satisfied” of any of the matters in s 181(6)(a) or (b). If at any stage the magistrate is so satisfied, they must abstain from jurisdiction, and the procedure in s 181(7) must then be followed. The magistrate must stop hearing the charge summarily, and treat the proceeding as a committal.  Section 104 of the JA must be complied with for the committal: s 181(8).
54. [54]
    A registry committal under s 114 is premised on the offence being an indictable offence which cannot be heard summarily. The words of ss 181(4), (6) and (8) of the DV Act are expressed in mandatory terms and, on their face, exclude the operation of a registry committal process. The legislature could have chosen to identify other exceptions to s 181(4) including a registry committal process, but did not. Similarly, subsection 181(8) prescribes that the committal proceed under s 104 of the JA.  The legislature could have chosen to identify an exception to that provision including by way of a registry committal process, but did not.
55. [55]
    In my view, there is no warrant to depart from the plain words of ss 181(4), (6) and (8) which do not permit a defendant to elect trial on indictment by registry committal process. To do so would bypass or circumvent the requirements of s 181. No good reason was advanced as to why that ought be permissible.
56. [56]
    In my view those subsections preclude an offence under the DV Act proceeding by way of registry committal to the District Court under s 114 of the JA. If a defendant purported to elect a registry committal under s 114 of the JA, it would have the effect of circumventing a specific process mandated for indictable offences under s 177(2)(a).   For example, it would mean that a defendant charged with a single count of contravention of domestic violence order, aggravated offence, could seek a registry committal and proceed in the District Court, defeating the purpose of s 181(4) of the DV Act that such offences ordinarily be heard summarily.

57. [57]
    The result is that I consider the six charges transmitted by registry committal are before the court through an irregular process that did not comply with s 181 of the DV Act.
58. [58]
    The question then is: what is the appropriate relief? I will direct the parties to confer to seek to agree on the appropriate orders. I will hear further submissions about that.
59. [59]
    I make the following observations.  The primary relief sought by the defendant is to quash the relevant counts. There are matters which may militate against granting such relief. The contravention offences under s 177(2)(a) of the DV Act were charged and transmitted with other indictable offences for unlawful stalking under s 359E of the Code which had a maximum penalty of 7 years imprisonment. The aggravated contravention offences may all be particulars of the stalking count(s).  In my view, if the charges had come before a magistrate for hearing and determination pursuant to s 181(6) of the DV Act, the magistrate may well have abstained from jurisdiction and transmitted the charges to this court in any event.   In addition, the defendant elected a registry committal in the first place.  Further, quashing the counts may also raise a limitation period problem, and the charges may now be out of time.
60. [60]
    Similarly, even if the court granted the alternative relief sought to transmit the first six charges back to the Magistrate Court, a magistrate hearing and determining the matter may abstain from jurisdiction pursuant to s 181(6)(a) and transmit the charges back to this court in any event.
61. [61]
    Even if I am wrong about the registry committal issue, for reasons explained below, in my view s 181 of the DV Act does not override or oust the power under s 561 of the Code to indict without prior committal an offence under s 177(2)(a) of the DV Act. The Crown retains the power to charge those offences by ex officio indictment.
62. [62]
    Construction of the relevant Code provisions supports the view that the combined operation of subsections 181(4), (6), (7) and (8) of the DV Act does not displace or override the power under s 561 of the Code to indict without prior committal an offence under s 177(2)(a) of the DV Act. In my view, the procedural provisions of s 181 of the DV Act must be read subject to the court’s broad jurisdiction in s 60 of the DCQ Act and the Crown’s power to present indictments in ss 560 and 561 of the Code.

63. [63]
    In oral submissions, defence counsel pointed to s 598(2)(g) of the Code which provides an accused person with a right to plead that the court has no jurisdiction to try them for the offence. He submitted that ‘jurisdiction’ in that section encompasses the jurisdiction of the court in the sense of its authority to hear and determine the issues in the trial.^[6]  He argued that if the Crown’s submission about s 561 were correct, there would be no need for that provision because the decision or discretion exercised by the Crown in presenting an indictment would extinguish any issue of jurisdiction. It is unnecessary to determine that point for the purposes of this application.

64. [64]
    I agree with the Crown’s submission that s 181 of the DV Act cannot have been intended to extinguish or override the Crown’s untrammelled power under s 561 to prefer offences on indictment. The Crown argues that the consequences of that would be too significant. It gives the example that the strict reading of s 181 promoted by the defendant would have the consequence that offences under s 177(2)(a) could not proceed in the District Court to be dealt with on sentence except by way of full committal or full hand up committal.

Conclusion

65. [65]
    For the reasons set out above, I am satisfied that s 181 of the DV Act does preclude charges for offences under s 177(2)(a) being transmitted to this court by registry committal. The relevant six counts that were the subject of a purported registry committal are before the court irregularly.  I will hear the parties’ submissions on the proposed orders and final relief for those charges.
66. [66]
    The six counts that were preferred on ex officio indictment are properly before the court and within its jurisdiction. It is not appropriate to make any orders quashing those counts on indictment, or transmitting them to the Magistrates Court.
67. [67]
    I make the following orders:

    1.     Direct the parties to confer within seven days with a view to agreeing upon the orders to be made to give effect to these Reasons and any relief sought.
    2. Adjourn the application to 11 February 2021 at 9am.