Milson v R (No 4) [2013] NSWDC 270

District Court New South Wales

Medium Neutral Citation: Milson v R (No 4) [2013] NSWDC 270 Decision date: 28 August 2013 Before: Cogswell SC DCJ Decision: Conviction appeal allowed. Conviction set aside. Catchwords: CRIMINAL LAW - Procedure - court attendance notice void - different offence not an amendment - fresh charges after limitation period expired. Legislation Cited: Crimes Act 1900 (NSW), ss 193B, 193C(1). Criminal Procedure Act 1986 (NSW), ss 16(1)(b), 20(1)(b), 21, 175(3). Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 158. Category: Principal judgment Parties: Jason Milson (Appellant) Regina (Respondent) Representation: Counsel: P M Strickland SC (Appellant) Solicitors: Armstrong Felton (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/121417

Judgment 1Jason Milson was charged with a series of offences on 14 April 2011. The charges were contained in a court attendance notice. Charge 8 alleged that he had dealt with property suspected as being proceeds of crime. That was an offence against s 193C(1) of the Crimes Act 1900 (NSW). 2On 7 December 2011 the prosecution, with the consent of Mr Milson, amended charge number 8 so that the particulars of the property were more extensive. Mr Milson was convicted of the offence and appeals against his conviction. He claims through Mr P M Strickland SC, his counsel, that there are jurisdictional errors which render the amended court attendance notice invalid. 3The respondent to the appeal, the Director of Public Prosecutions, represented by Ms C Black, argued that the court attendance notice was filed in time and then merely amended. She pointed out that it was amended under s 20(1)(b) of the Criminal Procedure Act 1986 (NSW). 4In my opinion, the court attendance notice which was filed by consent on 7 December 2011 was not an amendment, it was a fresh charge. Never before had the prosecution alleged under s 193C of the Crimes Act an offence regarding a boat - formerly the allegation had been an offence under s 193B; or a bike - again formerly the allegation had been an offence under s 193B; or a television - again formerly the allegation had been in respect of an offence against s 193B. 5Ms Black argued that the amendment was made to the mere particularisation of property. She argued that it is not uncommon or unusual for the prosecution to particularise more than one item of property in a charge and there has been no suggestion raised by Mr Milson that the court attendance notice was duplicitous. I do not accept those submissions because, as I said, there had never been allegations of an offence under s 193C of the Crimes Act in respect of a boat, a bike or a television which were all the subject of the fresh charge. 6It is common ground that the Court Attendance Notice filed on 7 December 2011 was filed outside the limitation period. It has to be acknowledged that there had previously been an allegation made under s 193C of the Crimes Act of an offence regarding toy cars. But still, in my opinion, the previous allegation was defective. It was defective for the reasons set out by Mr Strickland SC in his written submissions at [15] of MFI 4 because it was a misstatement of the offence and could only be corrected by deleting an incorrect element - "knowing that it was the proceeds of crime" - and substituting another element - "being property that there are reasonable grounds to suspect is proceeds of crime". 7I accept Mr Strickland's submission, based upon the judgment of Mahoney JA (as his Honour then was) in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, that s 21 of the Criminal Procedure Act does not assist the prosecution by way of permitting an amendment. His Honour said that the corresponding section under the Justices Act 1902 "would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement." His Honour referred to the judgment of Jordan CJ in Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 158 at 168 where the Chief Justice observed that a line of English authority regarding corresponding legislation did not apply "if it appears that the information does not allege all the ingredients of the statutory offence". 8Adopting Mahoney JA's terminology at 517 of Boral Gas I would regard the original Court Attendance Notice which alleged the offence in respect of toy cars correctly under s 193C of the Crimes Act as void as originally filed and it cannot be saved or amended under s 21 of the Criminal Procedure Act. It is now out of time. 9Ms Black argued in her written submissions (which became MFI 5) that she can rely on s 16(1)(b) of the Criminal Procedure Act because the particulars were necessarily implied in the short form of the offence. However, I accept the submissions of Mr Strickland at [16] and [17] of his written submissions to the effect that the provision of s 175(3) of the Criminal Procedure Act was not complied with because the Court Attendance Notice filed on 7 December 2011 does not in any sense briefly state the particulars of the alleged offence. It alleged a different offence. 10It is for those reasons that on 19 July 2013 I made the orders allowing the appeal and setting aside the conviction.