PARTIES:	MICHAEL MUNN

		v

		AGUS

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:				   Case Stated by Court of
							   Summary Jurisdiction

FILE NO:	No 85 of 1996

DELIVERED:	10 June 1997

HEARING DATES:	23 September 1996

JUDGMENT OF:	Angel J

REPRESENTATION:

Counsel:

	Plaintiff:	A H Sylvester
	Defendant:	R J Coates, Amicus Curiae

Solicitors:

	Appellant:	Australian Government Solicitor
	Respondent:	NT Legal Aid Commission

Judgment category classification:	B - local unpublished
Judgment ID Number:	ang97009
Number of pages:	5

ang97009

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 85 of 1996

		BETWEEN:

		MICHAEL MUNN
			Plaintiff

		AND:

		AGUS
			Defendant

CORAM:	ANGEL J

REASONS FOR JUDGMENT

(Delivered 10 June 1997)

	This is a special case stated by Mr R J Wallace SM pursuant to s162 of the Justices Act (NT).

	The stated case so admirably and succinctly sets out the circumstances giving rise to the issues and the matters relating to the question that I set it out in full:

	“1.	On 15 January 1996 Michael Munn laid an information charging
Agus for that on or about 30 December 1995 he did at a place in the Australian Fishing Zone:

(a)	use a foreign boat, namely “Sadarjaya”, for commercial fishing
contrary to s100(1) of the Fisheries Management Act 1991 (Commonwealth), and

(b)	have in his possession or in his charge a foreign boat, namely,
“Sadarjaya”, equipped with nets, traps or other equipment for fishing, contrary to s101(1) of the Fisheries Management Act 1991 (Commonwealth)

2.	Sections 100(2) and 101(2) of the Fisheries Management Act 1991
provide a maximum penalty upon conviction for each respective offence of a fine of $250,000.

3.	Sections 100(3) and 101(3) of the Fisheries Management Act 1991
each read:

“An offence against this section is an indictable offence but may be heard and determined, with the consent of the prosecutor and the defendant, by a Court of Summary Jurisdiction”.

4.	On 16 January 1996 in the Court of Summary Jurisdiction in Darwin 
the prosecutor and Agus consented to the matter’s being heard and determined in the Court of Summary Jurisdiction.

5.	Sections 100(4) and 101(4) of the Fisheries Management Act 1991 provide that the maximum penalty that a Court of Summary Jurisdiction can impose for each respective offence is a fine of $25,000.

6.	Agus had appeared on 16 January 1996 in answer to a summons. It
seems that at some time between that date and 3 May 1996 he left Australia and went to Indonesia.

7.	On 3 May 1996, Ms Van Gessel, counsel for the Informant, applied 
for leave to proceed ex parte against Agus.

8.	Proceedings may be heard in the Court of Summary Jurisdiction 
pursuant to ss62, 62A and 62AB of the Justices Act.  Those sections are contained in Part IV of the Justices Act (“Summary 
Jurisdiction”), and appear prima facie to relate to charges laid on complaint, and not to relate to charges for indictable offences laid on information.

9.	Ms Van Gessel argued that Agus’s consent to jurisdiction on 
16 January 1996 had the effect of converting the charges from indictable offences to summary offences, and thus, in effect, converting the information to a complaint.  She argued that the Commonwealth Parliament had contemplated that persons such as Agus might be absent from the hearing of their cases, and that evidence of that contemplation is to be found in s88 of the Fisheries Management Act 1991.  That section permits the release of seized property (boats, fishing equipment etc) upon conditions:

	“...including conditions as for the giving of security for payment
of the value of the property if it is forfeited and for the payment of any fines that may be imposed under this Act ...”.

the words underlined being those relied upon for this purpose by Ms Van Gessel.  She cited Pearce v Cocchiaro (1977) 137 CLR 600 as authority for the proposition that procedural technicalities arising from the statutes creating Courts of Summary Jurisdiction cannot defeat the intent of the Commonwealth Parliament to endow those courts with jurisdiction to hear and determine charges for offences against the law of the Commonwealth

10.	Ms E Morris, appearing as amicus curiae, argued that s29 of the 
Justices Act prohibited the charges proceedings ex parte.  Section 29 reads:

“Every party to any proceeding before Justices shall be at liberty to conduct his case or to make his application or his full answer to the charge or complaint (as the case may be) and to have the witnesses examined and cross-examined, by a legal practitioner: provided that nothing herein contained shall be deemed -

	(a)	to dispense with the personal attendance before
the Justice of any defendant who is charged with an indictable offence; or

(b)	to authorise Justices to proceed to hear or to 
hear and determine any charge of an indictable offence in the absence of the defendant”.

11.	I was of the opinion that, having regard to the decisions of Forster J
(as he then was) in Pioch v Lauder (1976) 27 FLR 79 and of Muirhead J in Glynn v Smith (1983) 70 FLR 427 that the characterisation of an offence as indictable or non-indictable was immutable (except, perhaps, by the entry of a plea of guilty pursuant to s106A of the Justices Act), and in particular was not altered by the consent of the defendant on 16 January 1996.  Further, having regard to the decision of Rice J in Sesar v Hayman (1987) 88 FLR 426 that the Court of Summary may not adopt a procedure however convenient to the parties, if that procedure is contrary to a mandatory provision of the Justices Act.  I was of the opinion that s29 of the Justices Act was mandatory.  I therefore refused leave to proceed ex parte finding myself to be without power to proceed.

12.	The question of law upon which this case is stated for the opinion of
the Supreme Court is:

	“Whether, on a true construction of the Justices Act, a Court of 
Summary Jurisdiction may hear and determine ex parte a charge laid pursuant to s100(1) or s101(1) of the Fisheries Management Act 1991 (Commonwealth) in circumstances where the defendant and prosecution have consented to the charge being heard and determined by a Court of Summary Jurisdiction”.

	I am of the view that the question should be answered “No”.  

	I agree with the learned Magistrate that the characterisation of indictable or non-indictable offences is immutable and that by reason of s29 of the Justices Act, to which s125 (2) of the Justices Act by its own express terms is subject, prevents the hearing and determination of the Fisheries Management Act 1991 (Commonwealth) charges contrary to ss100(1) and 101(1) in the absence of the defendant.  I further agree with the learned Magistrate that the consent of the defendant on 16 January 1996 for the charges to be heard summarily, does not alter the situation.  When heard summarily pursuant to s121A, the charges are heard “as if each (charge) were a complaint for a simple offence under this Act” neither alters the nature of the charge nor avoids the mandatory requirement of s29 that the defendant be present when the matter is heard and determined.  The fact the charges are heard “as if” they were simple offences indicates that they remain indictable offences during their hearing and determination via the summary process.

	The answer to the question of law upon which the case was stated is “No”.