Chappell v Director of Public Prosecutions [2006] NSWSC 1126

New South Wales Supreme Court

CITATION : Chappell v Director of Public Prosecutions [2006] NSWSC 1126 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23/10/06

JUDGMENT DATE : 26 October 2006

JUDGMENT OF : Bell J at 1

DECISION : 1. Dismiss the plaintiff's summons; 2. Remit the proceedings to the Local Court for the determination of the prosecutor's application for leave under s 177(4) of the Criminal Procedure Act 1986 to extend the time for filing the copy of the court attendance notice containing an endorsement as to service to 3 August 2005.

CATCHWORDS : Commencement of proceedings by court attendance notice - leave to extend time for filing service copy of notice

Criminal Procedure Act 1986 LEGISLATION CITED : Local Court (Criminal and Applications Procedure) Rule 2003 Road Safety (Safety and Traffic Management) Act 1999

CASES CITED : Sharman v Director of Public Prosecutions [2006] NSWSC 135; 161 A Crim R 1

PARTIES : Marlene Rose Chappell (Plaintiff) Director of Public Prosecutions (Defendant)

FILE NUMBER(S) : SC 11963/06

COUNSEL : B E Haverfield (Plaintiff) G Farmer (Defendant)

SOLICITORS : Staunton Beattie Solicitors (Plaintiff) Solicitor for Public Prosecutions (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Thursday 26 October 2006

11963/06 Marlene Rose Chappell v Director of Public Prosecutions

JUDGMENT 1 BELL J: By her second further amended summons the plaintiff claims an order in the nature of certiorari quashing the determination of the second defendant, a Magistrate, made on 18 April 2006, holding that summary proceedings for offences under the Road Safety (Safety and Traffic Management) Act 1999 had been properly commenced against her, together with declaratory relief. 2 The plaintiff was involved in a motor vehicle collision on Pittwater Road, Mona Vale on 2 July 2005, which has given rise to proceedings being brought against her alleging the commission of three offences contrary to the Road Safety Act: negligent driving contrary to s 42(1)(c) and two counts of negligent driving occasioning grievous bodily harm contrary to s 42(1)(b). Each is a summary offence and is the subject of a six-month limitation period. 3 The proceedings for the three offences purport to have been commenced in accordance with the provisions of Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (the CPA). Section 172(1) provides that proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with Div 1 of Pt 2 of Ch 4 of the CPA. 4 It is the plaintiff's contention that the proceedings were not validly commenced in accordance with the provisions of the CPA and that the Magistrate wrongly determined otherwise. The Magistrate, who is named as the second defendant in these proceedings, has entered a submitting appearance. 5 Section 177 of the CPA, relevantly, provides: 177(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. (5) Leave may be granted under subsection (4) after the expiry of the 7-day period referred to in that subsection. 6 The Local Court (Criminal and Applications Procedure) Rule 2003 (the Rule) makes provision for the manner of service of court attendance notices in summary proceedings. Service may be effected by sending a court attendance notice by post to the person's residential address not less than 21 days before the first listing date for the offence: r 18(2)(d). Rule 36(1), relevantly, provides: 36 When service taken to be effected (1) If a document issued in proceedings is served by post, service is taken, in the absence of evidence to the contrary, to have been effected on the fourth working day after the document was posted. 7 The copies of the court attendance notices that were filed in the registry of the court and which contain an endorsement as to service are annexed to the affidavit of the plaintiff's solicitor, Gordon McDonald Hartley, which was sworn on 29 June 2006. They were filed in the registry of the court on 3 August 2005 and each records that service was effected by sending it to the plaintiff's residential address by registered mail on 25 July 2005.