New South Wales Supreme Court CITATION : Director of Public Prosecutions v Stevens [2007] NSWSC 1350 HEARING DATE(S) : 12 November 2007 JUDGMENT DATE : 29 November 2007 JURISDICTION : Common Law JUDGMENT OF : Walmsley AJ DECISION : (1) Declaration made that Second Defendant fell into jurisdictional error in determining he was without jurisdiction to hear and determine proceedings.; (2) Order made that proceedings be remitted to Local Court to be determined according to law. CATCHWORDS : CRIMINAL LAW – procedure – summary proceedings before Local Court – Court Attendance Notice – requirement for Court Attendance Notice to be filed in court not later than 7 days after service – whether Court Attendance Notice filed within time – where court file did not contain a copy of Court Attendance Notice that was filed within time – where prosecutor had copy of Court Attendance Notice bearing court stamp that showed Court Attendance Notice filed within time – where magistrate only considered documents on court file to determine whether Court Attendance Notice filed within time – whether magistrate erred - ADMINISTRATIVE LAW – prerogative writs and orders – mandamus – decision of inferior Court – statutory procedures for commencing summary criminal proceedings before Local Court – where magistrate found no jurisdiction to hear charges – constructive failure to exercise jurisdiction – whether mandamus appropriate – discretionary considerations for issue of mandamus Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 LEGISLATION CITED : Director of Public Prosecutions Act 1986 Local Courts (Criminal and Applications Procedure) Rule 2003 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1970 Barns v Edwards (1993) 31 NSWLR 714 Brygel v Stewart-Thornton [1992] 2 VR 387 Director of Public Prosecutions v Cakici & Anor [2006] NSWSC 454 CASES CITED : Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Sharman v Director of Public Prosecutions & Anor [2006] NSWSC 135; (2006) 161 A Crim R 1 Director of Public Prosecutions NSW (Plaintiff) PARTIES : Rebecca Amy Stevens (First Defendant) Michael Price, Magistrate (Second Defendant) FILE NUMBER(S) : SC 13028/07 COUNSEL : C A Webster (Plaintiff) Solicitor for Public Prosecutions (Plaintiff) SOLICITORS : Archbold Legal Solutions (First Defendant) Crown Solicitor (Second Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Price LCM IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WALMSLEY AJ 29 November 2007 13028/07 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v REBECCA AMY STEVENS & ANOR JUDGMENT 1 HIS HONOUR: The Issue 2 The issue arising is whether the second defendant (the magistrate) erred in law when he decided he lacked jurisdiction to deal with three prosecutions against the first defendant (Ms Stevens) for negligent driving occasioning grievous bodily harm. The argument concerns the date when a Court Attendance Notice ("CAN") was filed in the Local Court at Sutherland. The Background 3 On 5 January 2005 three people were injured in a motor vehicle accident at Telegraph Point, near Port Macquarie. It is alleged by the plaintiff that the injuries were brought about by Ms Stevens' driving, and that she was guilty of three offences of negligent driving occasioning grievous bodily harm contrary to section 42(1)(b) Road Transport (Safety and Traffic Management) Act 1999. 4 The maximum penalty for an offence against section 42(1)(b) Road Transport (Safety and Traffic Management) Act is, in the case of a first offence, 20 penalty units ($2,200) or imprisonment for nine months or both. The offence is to be dealt with summarily in the Local Court: section 6(1)(c) Criminal Procedure Act 1986. On the state of the law at that time, where an offence was to be dealt with summarily, the CAN had to be served and filed in the Local Court where the matter was to be heard, within six months of the events giving rise to the offence. Thus, here, the last day was 5 July 2005. Otherwise the Local Court had no jurisdiction to hear the matter. 5 Although no evidence was called on this issue, the prosecutor told the magistrate this: on 2 June 2005 the investigating police officer, Senior Constable Bentley, prepared a CAN in respect of each alleged offence. On the same day he posted copies of each CAN to Ms Stevens and to Sutherland Local Court. Evidence before the magistrate suggests the CANs arrived at Sutherland Local Court on 9 June 2005. The return date for the CANs was 4 August 2005. 6 On 3 August 2005 copies of each CAN were made by an employee at Sutherland Local Court from electronic records. Those documents, dated 3 August 2005, were placed on a court file. 7 On 4 August 2005, the proceedings were mentioned before the magistrate and by consent adjourned to 15 September 2005. Although Ms Stevens was not present or represented that day, there was a letter on her behalf on the court file, apparently requesting an adjournment so that representations could be made. On 15 September 2005 the proceedings were again adjourned by consent, this time to 29 September 2005. On 29 September 2005 they were adjourned to 27 October 2005. 8 On 27 October 2005 Ms Stevens was represented by counsel, Mr B Murray. Before the magistrate, counsel submitted (and the learned magistrate accepted) that the court had no jurisdiction, since the CANs were required to be filed within six months from the date of the alleged offences, whereas the only copies of the CANs on the court file were the ones dated 3 August 2005, a date well outside the statutory period. Consistently with Barns v Edwards (1993) 31 NSWLR 714 the magistrate marked all three CANs "No jurisdiction". There was a subsidiary argument that the police officer had not complied with a requirement that he endorse the original versions of the CANs with Ms Stevens' address at which he served her. But since the magistrate found he had no jurisdiction, he did not decide that issue. 9 Since the magistrate did not dismiss the proceedings, there was no "dismissal" against which the plaintiff could appeal under Part 5 Division 2 Crimes (Appeal and Review) Act 2001: Director of Public Prosecutions v Cakici & Anor [2006] NSWSC 454 at [34]; Sharman v Director of Public Prosecutions & Anor [2006] NSWSC 135; (2006) 161 A Crim R 1 at [44]; 12; Barns v Edwards at 720B. 10 The plaintiff seeks orders in the nature of certiorari and mandamus in respect of the magistrate's determination, pursuant to section 69(1)(c) Supreme Court Act 1970. However, there is no need for certiorari where there has been a refusal to exercise jurisdiction: Brygel v Stewart-Thornton [1992] 2 VR 387 at 391. 11 Relief in the nature of mandamus may be granted where there has been a constructive failure by the magistrate to exercise the Court's jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243. 12 Both defendants filed submitting appearances. The only appearance on the hearing before me was on behalf of the Director of Public Prosecutions, the Director having, on 18 June 2007, taken over prosecution of the proceedings pursuant to section 9(1)(c) Director of Public Prosecutions Act 1986. Orders Sought in the Summons 13 The prosecutor claims here: "1. An order that the record of the Local Court, sitting in its criminal jurisdiction at Sutherland on 27 October 2005, in the proceedings Police v Rebecca Amy Stevens for three offences of "Negligent Driving Occasioning Grievous Bodily Harm" be called up, and the determination of the Second Defendant on that day, that he was without jurisdiction to hear and determine the proceedings, be quashed. 2. A declaration that the Second Defendant fell into jurisdictional error in that he failed to consider material that was relevant to his determination. 3. A declaration that the Second Defendant fell into jurisdictional error in determining that he was without jurisdiction to hear and determine the proceedings. 4. An order that the proceedings be remitted to the Local Court to be determined according to law. 5. An order that the First Defendant pay the Plaintiff's costs of and incidental to this summons. 6. Such further or other order as to the Court seems fit." Legislative Background 14 Section 172(1) Criminal Procedure Act provides: "(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division". 15 Where the prosecution is commenced by a police officer, (as here) section 173 provides relevantly: "If a police officer … is authorised to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division." 16 Section 175 sets out the requirements for a CAN, including that it be in writing and contain particulars of the alleged offence. 17 Sections 177, 178 and 179, as at the relevant time, provided: " 177 Service of court attendance notices (1) A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules. … (4) A copy of a court attendance notice must, except with the leave of a Magistrate or a registrar of the court, be filed in a court not later than 7 days after it is served and must contain an endorsement as to service. … 178 When proceedings commence (1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. 179 Time limit for commencement of summary proceedings (1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed. …" 18 Part 4 of the Local Courts (Criminal and Applications Procedure) Rule 2003 ("the Rule") contains provisions about service and proof of service of a CAN. 19 Rule 37(2) requires the person serving the CAN to endorse on a copy of the served CAN certain details of service including: "(e) if the document was served by post, the manner in which the person was informed of the address to which it was posted and the time and place of posting." 20 It is to be noted that (e) does not require endorsement of the address used for service, merely "the manner in which the person was informed of the address …". 21 The final piece in the legislative setting is Rule 60, which says: "60 Filing of documents (1) A document that is required by the Criminal Procedure Act 1986 or the Local Courts Act 1982 or this Rule to be filed in the registry of a Court or with the registrar by a police officer or public officer is taken to be filed if dealt with as follows: (a) … (b) the document is sent by post to the registry of the Court, (c) … … (4) A document that is required by the Criminal Procedure Act 1986 or the Local Courts Act 1982 or this Rule to be filed in the registry of a court is, except with the leave of the registrar, to be filed in the registry of the Court before which the relevant proceedings are, or are to be, listed." (Rule 60 was not, it appears, drawn to the magistrate's attention during the hearing before him, but that did not lead to any error. The magistrate proceeded on the assumption that filing by posting a copy to the relevant Local Court was appropriate.) The Hearing Below 22 As I have noted, on 3 August 2005 copies of each CAN were generated by an employee at Sutherland Local Court from electronic records. The date they were generated, viz 3 August 2005, appeared on them. 23 Before the Local Court, Mr Murray contended that the CANs were out of time; that "the earliest that the court attendance notice existed is 3 August which is more than six months after the offence." T 1, lines 55-57 For that argument he relied on the fact that the earliest printed forms of CAN on the court file were ones of that date. 24 The prosecutor then said: "This incident occurred in Port Macquarie, so the officer in charge of Port Macquarie instructs me that on 2 June 2005 he printed the relevant charge sheets from this matter. After he printed them the defendant's copies were put into an envelope and addressed to her residential address and he instructs me that they were posted to her on that day. Another defendant's copy was sent to Mr Murray. The Court bench copies were put in another envelope and addressed to the Clerk of the Local Court at Sutherland. The prosecutor's copies were put into an envelope and then just sent through to our office through internal mail. So my instructions from the informant are that he, in fact, posted as per the requirements, those relevant charge papers to the defendant at her residential address and also to Mr Murray. It appears that Mr Murray has not received that and I assume that the defendant has not either, certainly not these ones that the informant indicates were generated on 2 June." T 4.17 25 The prosecutor handed two documents to the magistrate. One was a computer-generated record concerning the CANs. The record was from within the Local Court computer system, but the "enquiry" which caused it to be printed was from within the Police Service. Under the heading "Processing Details", this appears on the document: "Date Issued: 02/06/2005". 26 Under the heading "Record of Processing" this appears: "28/07/05 1 Record Transferred from Police 2 First Hearing: THU, 04/08/2005". From a note at the top right corner of the page it appears the document was produced from a computer system on 27 October 2005. 27 The other document was a CAN containing an endorsement of service suggesting service of it had occurred on 2/6/05 when Senior Constable Bentley sent a copy of it by mail to Ms Stevens at the address she had given police. At the lower right hand corner this appears: "Printed at 3:54 pm on 02/06/2005". 28 Near the top right hand corner there appears to be an imprint as follows: RECEIVED - 9 JUN 2005 COURT HOUSE SUTHERLAND 29 Inexplicably, the latter document was not on the court file when the three matters were before the magistrate. The prosecutor explained to him that the document had probably been handed back to the prosecution service by the court registry, and that it had been "found in the prosecutor's papers" T 4.56. That was a copy, but he told the magistrate the original "does exist also". 30 The proceedings were conducted somewhat informally. Neither document was formally tendered. Both counsel for Ms Stevens and the prosecutor appear to have proceeded on the assumption that the latter was authentic. However, although Mr Murray did not object to the magistrate's seeing it, he objected to its going into the court file. He said: "Your Honour knows my point is you can only adjudicate on what's before you and my worry is … you were handed an extra document … with a court stamp on it. Now, … that had never been and has never been filed in the clerk of the court's office or been part of your Honour's file …". T 9.7 31 Later the prosecutor said: "Is your Honour satisfied that it is a stamp from this Court saying that it is received at Sutherland Court –". T 11.19 32 His Honour responded: "Prima facie, I can't come to any other view". T 11.23 33 The prosecutor then explained: "[I]t's normal procedure for the Deputy Registrar to receive charges of this nature which are bordering on being statute barred and for him to stamp it and actually provide a copy to the prosecutor's office … It's not a normal procedure … that a hardcopy receipt is given back … but in this … instant … that may have been an explanation because it was bordering on being statute barred." T 11.32 34 Later Mr Murray, having again been asked to put his submission, said to the magistrate: "[T]he thing is you haven't got bench sheets … generated before it was statute barred." T 12.21 35 His Honour then gave judgment, saying, inter alia: "On the documents that I have identified earlier that are produced or sourced, from what I describe as police force or police service sources, they bear the Court registry stamp and on their face, at least, could indicate that the proceedings were commenced within time. For the purposes of determining these matters, however, counsel for the accused has asked the Court to determine this matter on the Court file and the Court record. Confining the determination to those source documents, the … computer system operating within the registry … would establish that there was an electronic transfer from the police force to the Court no early [sic] than 28 July 2005. How a hardcopy typed document is stamped and shown as being received on 29/06/05 [sic] is not readily explicable. Based solely on the … documents that are available to the court for making … these determinations, whether one accepts the computer transferred data which on its face is 28 July 2005, or the other hard copy document, this Court could not come to the view that the relevant proceedings … were commenced within time." T 14-15 36 There was then an application made for costs. His Honour declined to make a costs order, among other reasons including this: "Clearly it has to be accepted … that the … legal services division … have within their file … a document which on its face would indicate that not only was it a document generated within the parameters of the statutory period, but more importantly … bore an external endorsement source, and by that I mean a received stamp bearing a particular date, from the courthouse at Sutherland … One could with some degree of confidence rely on the … accuracy, not simply of the computer generated document, but the endorsement appearing on it so far as the validity or otherwise of that documentation is concerned … [T]he arguments advanced by the prosecuting authority so far as commencement of proceedings in time or otherwise were not without significant foundation. Notwithstanding the Court has determined adverse [sic] to the prosecuting authority so far as its view on the documents within the court file, this court would not be of the view that there are … circumstances that would enliven the provisions …" T 17-18 . 37 The plaintiff submitted there had been a constructive failure to exercise jurisdiction. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said: "[T]he mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to "misconceive its duty," or "not to apply itself to the question which the law prescibes" : The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-3; 16 Austn Digest 808; or "to misunderstand the nature of the opinion which it is to form" : The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determined the matter according to law: R v Board of Education [1910] 2 KB 165." 38 The record of what occurred before the magistrate persuades me that when he decided the prosecutor had not proved the three CANs had been filed at the Sutherland Local Court within six months from the date of the relevant events, he asked himself this question: "Does the court file contain a record of the filing of the CANs within the time prescribed by section 179 Criminal Procedure Act ?" 39 Whereas, the question he should have asked was: "Were the CANs filed within the time prescribed by section 179 Criminal Procedure Act ?" 40 There is nothing in the legislative framework that required the magistrate to restrict his consideration to the documents physically on the court file when deciding whether the CANs had been filed in time. No doubt, in the ordinary course, a Local Court file will contain the CAN filed by the relevant police officer. But there will be occasions when, for administrative reasons, or through error, it will not. The prosecutor would (if able) be at liberty to call or tender such evidence at his or her disposal as is relevant to the issue of whether, and if so when, the CAN was filed. 41 The question as seen by his Honour was not so much how service is to be proved, but whether, according to the court file alone, service had been proved. His Honour did not say why he considered he was obliged only to have regard to the court file on the service issue, especially given he did not confine his consideration to file documents on the costs issue. He merely appears to have accepted counsel's argument, which was based on the erroneous assumption that resort could only be had to the court file to determine whether or not the CANs had been filed. 42 As I conclude the magistrate did not consider the correct question, his Honour has not applied himself to the question prescribed for him by the law. This was, I consider, a constructive failure to exercise his jurisdiction. His duty to make a decision as to the validity of the proceedings remains, constructively, unperformed: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616; [53] (Gaudron and Gummow JJ). Utility of Remitter 43 Before the magistrate, Mr Murray also argued the police officer who served the CANs had not complied with Rule 37(2)(e) by endorsing "the manner in which the person was informed of the address" to which he sent them. On the copies of the CANs before the magistrate the officer, in purported compliance with that rule, said "Residential address – source defendant." That response was apparently one of only a limited number available to an officer putting entries into the COPS system. It seems clear enough that that part of the endorsement complies with Rule 37(2)(e), showing that the defendant gave police the address used for service. The rule does not require the service address itself to be endorsed: Director of Public Prosecutions v Cakici at [29]. The magistrate, given the view he took on jurisdiction, did not decide this issue. I see no reason why, were the matter remitted, the prosecution could not call evidence on the issue as occurred for example on the service issue in Sharman v DPP. 44 Since the facts giving rise to these matters occurred, section 177(4) Criminal Procedure Act has been amended. It is no longer necessary for a CAN to be filed within seven days of service with an endorsement of service. As explained in the second reading speech on 27 October 2006 in the Legislative Assembly by the Parliamentary Secretary on behalf of the Attorney-General (Hansard, p 3665): "The amendments seek to remove the nexus between the service and the jurisdiction of the court." 45 The amendment is one I take into account but does not militate against the orders sought here. Though there has been delay, it is not lengthy and is to my satisfaction explained: the police needed time to consider their position and seek advice. I would not decline the orders on discretionary grounds. The injuries of the victims of the accident were significant and the offences if proved, likewise. Further, Ms Stevens has not appeared to argue against the relief sought. Conclusion 46 I propose to make an order in the nature of mandamus pursuant to section 69 Supreme Court Act, and the second declaration sought. I do not consider the first one sought is necessary. The plaintiff has asked for an order for costs against Ms Stevens. Ms Stevens' submitting appearance excluded issues of costs. I will hear the parties on costs. Orders 1. I declare that the Second Defendant fell into jurisdictional error in determining that he was without jurisdiction to hear and determine the proceedings. 2. I order that the proceedings be remitted to the Local Court to be determined according to law. ********** 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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