New South Wales Electoral Commission v Evers [2012] NSWLC 14

Local Court New South Wales

Medium Neutral Citation: New South Wales Electoral Commission v Evers [2012] NSWLC 14 Hearing dates: 18/07/2012 Decision date: 12 October 2012 Jurisdiction: Criminal Before: Magistrate Bradd Decision: The defect in the court attendance notice is not one that can be ignored by virtue of the Criminal Act 1986. The offence that might be established by the evidence is different from that charged in the court attendance notice. Catchwords: CRIMINAL PROCEEDINGS - defective Court Attendance Notice - whether defect can be ignored - offence established by the evidence different from offence charged - s 16(2), Criminal Procedure Act Legislation Cited: Commonwealth Electoral Act 1918 (Cth) Criminal Procedure Act 1986 Local Government Act 1919 Local Government Act 1993 Parliamentary Electorates and Elections Act 1912 Cases Cited: CTM v R [2007] NSWCCA 131 CTM v The Queen [2008] HCA 25 Hickling v Laneyrie (1991) 21 NSWLR 730 Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363 Texts Cited: R N Howie and P A Johnson, Criminal Practice and Procedure NSW (LexisNexis) Category: Principal judgment Parties: Gregory Brandtman, New South Wales Electoral Commission Tania Evers (the defendant) Representation: Ms Johnson for the Crown Solicitor Defendant in person File Number(s): 2012/89739

Judgment

Preliminary issue

Background 1A court attendance notice has been filed in the criminal registry naming Ms Evers as a defendant. The details of the offence are that "the defendant was an elector who did fail to record her vote at an election when required to do so on 4 June 2011 at Waverley". The short particulars of the offence are as follows: The defendant being a person whose name appeared on the roll of electors for the Electoral District of Waverley Hunter, failed to vote at the Waverley Hunter Ward Local Government By-Election held on 4 June 2011 when required to do so. The statutory provision describing the offence is section 120F of the Parliamentary Electorates and Elections Act 1912. 2At the hearing, counsel for the prosecutor stated that the statutory provision describing the offence was the Local Government Act 1993. 3Ms Evers expressed the opinion that the prosecutor should withdraw the court attendance notice and serve a new court attendance notice. 4In subsection 16(2), the Criminal Procedure Act 1986 enacts: (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form... The term "indictment" is defined to include a court attendance notice (Criminal Procedure Act, s 15(2)). 5According to the authors of Criminal Practice and Procedure NSW (at [2-s 16.35]): An incorrect reference in an information to the section or Act under which the offence is prescribed is a defect which can be ignored under the section: Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363. 6Counsel for the Electoral Commission relies on the case of Voulgarakis. Ms Johnson asserts that when Ms Evers was served with the court attendance notice she was alerted to the particulars of the offence. Ms Johnson asserts that the elements of the offence in the Local Government Act 1993 are the same as the elements in the Parliamentary Electorates and Elections Act 1912. 7Ms Evers maintains that the elements of the offence in the Local Government Act 1993 are not the same as the elements in the Parliamentary Electorates and Elections Act 1912.