kea860081
v Hannan ex parte Abbott
Supreme Court of the Northern Territory of Australia Kearney J.
14 February at Alice Springs, and
14 May 1986 at Darwin

Certiorari - Criminal Law - Defunction order of the Juvenile Court beyond jurisdiction - Order quashed - Whether and when the	finding	of	guilt	can	stand	alone	Whether	an alternative penalty can or should be substituted -		Judicial meaning		of "conviction", "judgment" and "sentence" - Effect of a court being "functus officio" after making an	order Effect	of the absence of a statutory power to substitute an alternative sentence - Effect of using a writ of		certiorari rather than appealing by way of a writ of error.

Criminal Law - Certiorari - Detention order of the Juvenile Court beyond jurisdiction - Order quashed Whether the finding of guilt can stand alone - Whether an alternative penalty can or should be substituted - Judicial meaning of 11 conviction", "judgment11      and "sentence".

Words	and	Phrases	Criminal law - Certiorari - Judicial meaning of "conviction", "judgment" and "sentence".

s.213 Criminal Code (N.T.)
ss 19(a), 53(1)(g)(ii) Juvenile Justices Act (N.T.)
s.16 Administration of Justice Act 1960 (U.K.) s.178A Supreme Court Act (Vic.)

Cases applied:
R v Willesden Justices; exp. Utley (1948) 1 I.B. 397
Attorney-General for NSW v Dawes (1976) 1 NSWLR 242
R v Green (1958) 1 All E.R. 471
s (an infant) v Manchester City Recorder (1969) 3	All	E.R.
1230
Re Stubbs (1947) 47 SR (NSW) 329

Cases referred to:
Groenvelt v Burwell (1700) 1 Salk. 263; 91 E.R. 231 R v The Inhabitants of Seton (1797)
7 T.R. 373; 101 E.R. 1027
R v Smith; exp. James (1966) SASR 47 Cheatley v The Queen (1972) 127 CLR 291
R v Arundel Justices exp. Jackson (1959) 2 Q.B. 89

ii

Cases not followed:
Ramcharan v The Queen (1973) AC 414

Counsel for the applicant Solicitor for the applicant

Counsel for the Crown Solicitor for the Crown

Mr M. Waugh CAALAS
Ms C.L. Tonkins Mr M. O'Loughlin,
Assistant	Crown Solicitor for the Northern Territory

kea860081
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
No. 12 of 1986

THE QUEEN AND
JAMES HANNAN Magistrate of the Juvenile Court at Darwin
Respondent Ex parte
JOHN BARNABUS ABBOTT
Prosecutor

Coram:	Kearney J.

JUDGMENT
(delivered 14 May 1986)

By Notice of Motion dated 14 February 1986 the prosecutor sought the issue of certiorari directed to the Juvenile Court at Darwin to remove into this Court and quash an order made by that Court for the detention of the prosecutor. The application came on before me at Alice Springs on 14 February as a matter of urgency; it was conceded by counsel for the Crown that it must succeed.

The facts are as follows. The prosecutor appeared before the Juvenile Court at Darwin on 20 February 1986. It

was not contested before me that at that time he was 14 years of age. He had been charged under s.213 of the Criminal Code with the offence of entering a building with intent to commit a crime therein. The Juvenile Court had jurisdiction to deal with this charge; see s.19(a) of the Juvenile Justices Act. It found the charge proved.

Section 53 of the Act provides in detail for what the Juvenile Court may then do.  A special dispositive regime applies to juveniles under the age of 15, so far as an order for detention is concerned. Section 53(1)(g)(ii)
provides:-

"Where the Court finds	a	charge	proven against a juvenile it may
(g) in the case of a juvenile -
(ii) who has not attained the age of
15 years order that the juvenile be detained at a detention centre for a period not exceeding the maximum period that may be imposed under the relevant law in relation to the offence or 3 months, whichever is the lesser".

It can be seen that the effect of this provision is that the Juvenile Court cannot order that a juvenile under the age of 15 be detained for longer than 3 months, at most.

The Court in fact ordered that the prosecutor be detained for 5 months. That order was clearly unlawful in the sense that the Court had no jurisdiction to make  it. The result was, as far as that order was concerned, on 14 February the prosecutor was being wrongfully detained at Giles House.

I considered that the relief sought should be granted as a matter of urgency. To secure the  advancement of justice I made an order absolute in the first instance for certiorari to issue removing the record of proceedings from the Juvenile Court into this Court and quashing
forthwith the order for 5 months	detention.	The	question
then arose whether any further order could or should be made. The matter was adjourned. I heard further argument, and reserved for consideration.

The prosecutor submitted that the only order which could be made was the order quashing the detention  order. He relied upon Ramcharan v The Queen (1973) A.C. 414. That case involved an appeal to the Privy Council from Trinidad and Tobago against an invalid sentence. The appellant had been convicted of a felony and fined. On a reference by the trial judge the Court of Appeal held - and the Privy Council affirmed - that there was no power under the statute to impose a fine for a felony; the Court of Appeal substituted a sentence of imprisonment. The Privy Council held that

under the particular statute the Court of Appeal had no power to substitute another sentence. Accordingly, the appeal was allowed and the sentence of imprisonment quashed. The Privy Council considered that the trial judge was functus officio and could not be ordered to pass some other sentence; that is, the case could not be remitted to him.

The prosecutor submitted that similarly the Juvenile Court had already made its order and was functus officio; and that, as in Ramcharan, the only order which could be made was that the order for detention be quashed.

The	appellant	in	Ramcharan had argued that there

was	an	distinction	between	"judgment"	and However their Lordships said at p.426:-

11 sentence 11 ..

"There		is a well-established distinction between 'conviction' on the one hand, and 'judgment'		or	'sentence'	on the other, separate incidents of a criminal trial although		sometimes the word 'conviction' is used to mean		or			include the judgment or sentence of a court ..• However, there is no distinction		between	the	judgment and the sentence.		The sentence passed by the court is the judgment of		the	court. That	is	apparent		from· a		multitude of cases.		It has been so for centuries ..." (underlining mine).

The Privy Council then went on to discuss the powers of a superior court under the old appeal procedure by way of writ of error. Under that procedure, where a

sentence in excess of the maximum permissible had been imposed, there was no power to substitute some other sentence or send the case back to the court below; the judgment, that is, the sentence, was simply reversed. At
p.427 their Lordships expressed the rationale of this common law rule as follows:-

"An erroneous sentence might be set aside, but that did not mean that it was to be treated as never having been passed. A court had passed it.  That court was functus officio. It could not be ordered to pass some other sentence.".

However, as their Lordships had noted, in Hawkins' "Pleas of the Crown", Book 2 chapter 50, it is stated -

"It is said by Sir Edward Coke that if the judgment be erroneous, both that and the execution thereupon and all former proceedings shall be reversed by the writ of error" (underlining mine).

Their Lordships noted that when the appeal by way of writ of error was supplanted by new statutory remedies, the powers of the superior court were determined by the terms of the particular statute. Their Lordships noted at
p.428 that the result of their decision was that:-

"  the  appellant  now goes free.  But the conviction stands. That a man guilty of a crime should go unpunished because of the mistakes of a court may cause uneasiness. But it has for long been the consequence  of  the   reversal   of  an

unlawful sentence in a criminal case. It arises from the inveterate insistence of the common law of England that a man is not to be subjected to punishment except in accordance with law.".

A few points may be noted. Ramcharan involved an appeal, not an application for certiorari. The common law did not contemplate an appeal by way of the rehearing of a case; see Stephen "A History of the Common Law of England" (1883), Vol.1 pp.308-9 for the history of the writ of error. That writ, forerunner of the modern appeal system, had much in common with certiorari: some error had to appear on the face of the record which could be quashed on removal into a higher court. In Groenvelt v Burwell (1700) 1 Salk. 263;
91 E.R. 231, Holt C.J. said that	when	a	jurisdiction	was
created to act according to the course of the common law, a writ of error could be brought from its decisions; while if it was to act in a summary way, a writ of certiorari lay. Hence it was only by certiorari that proceedings before justices could be corrected; see R v The Inhabitants of Seton (1797) 7 T.R. 373; 101 E.R. 1027 per Kenyon C.J.

R v Willesden Justices; exp. Utley	(1948)	1 K.B.
397 involved an application for certiorari, the ground being that the fine imposed exceeded the maximum permissible. The Divisional Court held that in those circumstances the whole conviction was bad on its face  and  must  be  quashed.  At
p.399 Lord Goddard C.J. said:-

"It	would,	perhaps,	be a good thing if the law were altered by legislation,		and power		were	given	to		this	Court	on a certiorari to substitute for the	penalty which was in fact imposed a penalty which could lawfully have been imposed,		or		to order			the		case	to		go	back	to		the magistrates to consider what		the		proper penalty should be.	But, unlike the Court of Criminal Appeal, we have no such power Accordingly, the certiorari must go,
and the conviction must be quashed." (underlining mine).

The word 11 conviction n is  ambiguous.  It  is sometimes used in the narrow sense as indicating merely that an accused has been made the subject of a finding of guilt. Sometimes it is used in the wider sense of the finding of guilt combined with the sentence of the court. I consider  that the primary meaning of "conviction" is as set out in

(an infant) v Manchester City Recorder	(1969) 1230 per Lord Upjohn at pp.1246:-

3 All E.R.

" the judicial determination of  a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times...".

See also the views of Street J. (as he then was) on the two meanings of "convicted", in Re Stubbs (1947) 47 SR (NSW) 329 at p.339, and in the cases there cited.

The approach taken in exp. Utley was also taken in R v Green (1958) 1 All E.R. 471. In that case the appellant was sentenced to a detention centre for larceny for a period less than the statutory minimum. He was released by the Home Secretary, exercising prerogative powers. He was then sentenced by Quarter Sessions on the basis that his conviction for larceny meant that he had failed to comply with an earlier probation order. The Court of Criminal Appeal quashed the sentence imposed by Quarter Sessions on the basis that had the conviction for larceny been brought before the High Court by certiorari proceedings, the conviction for that offence would have been quashed, and therefore it could not be used to found a breach of the probation order. At p.474 Lord Goddard C.J., delivering the judgment of the Court, again noted the "unfortunate hiatus"
that the High Court had -

"  no power to amend where a conviction by magistrates is brought before the court and where the magistrates per incuriam have passed a sentence which is not justified by law    The High Court can only look at the conviction, and the conviction is bad on its face, and therefore has to be set aside. It is quite absurd It is only  where  a sentence is passed by magistrates and is challenged by means of certiorari that the court has no power to put it right, and I hope that at no great distance of time a provision will be made in the law, though it must be made by an Act of Parliament, to give the Queen's Bench power to alter an illegal sentence which is passed to a legal sentence; because otherwise the offender goes unpunished." (underlining mine).

It may be noted that the law was soon amended to give the power the Lord Chief Justice sought; see s.16 of the Administration of Justice Act 1960 (U.K.).

In Attorney-General for NSW v Dawes (1976) 1 NSW LR
242 a sentence was imposed.by the District Court on appeal, for more than the maximum term allowed. The conviction was quashed, in certiorari proceedings. The Court of Appeal noted that since the District Court proceedings were thus nullified, it was to be expected that the District Court would  exercise  its  jurisdiction to rehear the appeal. At
p.245 Moffitt P. posed as one of the questions which arose -

" whether the excess of jurisdiction which occurred should result in the quashing of the conviction, namely, the complete order made, being the finding of guilt, the dismissal of the appeal, the confirmation of the conviction and the imposition of the sentence of three and a half years, so that the appeal to the District Court must be reheard, involving a rehearing of the issue raised by the plea of not guilty.".

At p.247, in dealing with this question, Moffitt P. referred to Ex parte Utley (supra) and other cases where the question whether "conviction" and "sentence" were one act had been considered. His Honour was of opinion that:-

''The questions raised by these cases do not appear to touch the decision in Exp. Utley, which is directed to the indivisible act of quashing a conviction which is bad on its face ... where the

10

record shows a conviction imposing a penalty not permitted by law, the conviction as it stands is bad, and the power can only be exercised to quash the whole ••. I think we should follow Exp. Utley, so that the record should be brought up, and, as there, the conviction quashed In the  result, of course, there remains the conviction and sentence of the magistrate from which an appeal is pending to the Cowra District Court." (underlining mine).

It is clear from the foregoing that certiorari can be used only to quash and the superior court cannot, in the absence of legislation, substitute some other sentence or remit the case for rehearing. There is no such legislation in this jurisdiction. Accordingly, only an order to quash can be made.

The question then is whether the whole of the conviction, in the sense of both the finding of guilt and the penalty, should be quashed; or whether only that part of the conviction which involves the penalty should be quashed; see, for example, R v Smith; exp. James (1966) SASR 47. It is clear from Cheatley v The Queen (1972) 127 CLR 291, a case arising in this jurisdiction, that certiorari may issue to quash a penalty only, leaving a finding of guilt to
stand.

I consider that Exp. Utley and Dawes (supra) indicate the approach which should be adopted in the present type of case; that is to say, where the penalty imposed on

..	. .

11

the prosecutor is one not permitted by law, in general the whole conviction of the prosecutor - in the combined sense of the finding that the charge was proved and the penalty imposed - should be quashed. In other cases, where it can fairly be said that the invalid part of the conviction is distinct and severable from the rest, certiorari may issue to quash that part only; see for example, R v Arundel Justices exp. Jackson (1959) 2 Q.B. 89 where the Divisional Court treated a period of disqualification from holding a driving licence as supplemental to the conviction and severable from it, but noted at p.91 -

"  the  fine of  20 and the convicti6n are not severable and if the fine of 20 had been in excess of the justices' jurisdiction, then the whole order, including the conviction, would have to be quashed.".

Applying the approach indicated, I order that the finding by the Juvenile Court on 20 January 1986 that the charge against the prosecutor was proved, be quashed; this is in addition to the order made on 14 February 1986 quashing the detention order.

In principle, I think the complainant may now lay a fresh complaint, though it would not appear to be appropriate to do so in the particular circumstances of this case. In an appropriate case, however, to do so would mean

..	..

12

that	the	result	in	Ramcharan,	which	I	regard	as unsatisfactory, would be avoided.

It may be that consideration should be given to widening the powers of the Supreme Court when dealing with applications for certiorari on the ground that the penalty imposed exceeded the maximum, as was done in Victoria; see s.178A of the Supreme Court Act (Vic.).