16 It is necessary to now consider the procedure available in the Magistrates' Court where a criminal proceeding proceeds ex parte.
Ex parte procedure in summary offence
17 The 1989 Court Act contained a new procedure relating to ex parte hearings in criminal cases. The object was to shorten the hearing time involved in cases where a defendant did not appear in answer to a summons charging him with a summary criminal offence. There was power to proceed ex parte under the pre-existing Act. There was also an alternative procedure available, which involved the informant serving a sworn statement on the defendant and the defendant having an election to appear. See s.78(3)(a) and ss.84-89 of the Magistrates' (Summary Proceedings) Act 1975. The new procedure under the 1989 Act was a variation on the previous legislation, but was markedly different. Section 37 authorises an informant to serve on a defendant charged with a summary offence, a brief of evidence. Section 37(1) specifies what must be contained in the brief of evidence. First, a notice in the prescribed form explaining s.37 and clause 5 of schedule 2. Secondly, a list of the persons who have made statements which the informant intends to tender at the hearing, if the defendant does not appear, and thirdly, copies of the statements. In addition, the brief of evidence must contain a copy of the charge sheet relating to the offence, together with any other documents which the informant intends to rely upon, a list of proposed exhibits and a photograph of any proposed exhibit that cannot be described in detail on the list. Section 37(2) prescribes the means of ensuring that the statements are true and correct. A statement must either be in the form of an affidavit or contain an acknowledgment that the statement is true and correct and made in the belief that if a false statement is made the person shall be liable to perjury. If the maker of a statement is under the age of 18 years, that fact must be stated. Sections 37(3) and 37(4) deal with a situation where the maker of a statement cannot read.
18 A brief of evidence must be served either by personal service or by leaving the brief at the defendant's last and most usual place of residence or of business, or, in respect to certain offences, by prepaid post to residence or business. See ss.34 and 36(1). I interpolate to note that there is an alternative procedure under s.37A that permits the service of an outline of evidence on the defendant, which may be relied upon if the defendant fails to appear at the proceeding.
19 Section 41 deals with the non-appearance by the defendant. If a defendant fails to appear, the Court may, inter alia, proceed to hear and determine the charge in his or her absence in accordance with Schedule 2 to the Act. The Schedule prescribes, inter alia, the procedure of a summary criminal hearing. Clause 5 of Schedule 2 deals with the situation where the defendant does not appear after the informant has served a brief of evidence. The first step is for the Court to direct that the matter proceed in the absence of the defendant. See s.41(2). The next step is for the magistrate to determine whether the informant has served the brief of evidence on the defendant in accordance with s.37. Once the magistrate is so satisfied, any statements served in the brief of evidence, and any admissible exhibits or documents referred to therein, are admissible "as if their contents were a record of evidence given orally." See clause 5(1)(c) and (d). The Court is empowered to rule as inadmissible the whole or part of any statement or of any exhibit or document referred to in the brief. See clause 5(2).
20 The prosecutor sought and obtained a direction that the hearing and determination of the charge proceed ex parte. However, the procedure set out in clause 5 of Schedule 2 was not followed. Although it was known to both the magistrate and the prosecutor that a brief of evidence had been served, the prosecutor did not make any reference to any document in the brief, nor did the prosecutor seek to tender the contents of the brief. It followed that the Court was not called upon to rule as to the admissibility of any document contained in the brief. Nothing was said at the hearing to lead to the conclusion that the magistrate was relying upon any document in the brief, nor does it appear that the prosecutor sought to rely upon any document in the brief. In my opinion, if the procedure under clause 5 of Schedule 2 is to be followed, the brief of evidence must be tendered in evidence. To avoid any doubts about what was tendered, the documents should be marked as Exhibits. Further, the magistrate must consider the question of admissibility of any of the documents in the brief.
21 The fact that the defendant did not appear does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge. Whilst the objection to the tendering of inadmissible evidence may be waived by a litigant present at a hearing, the mere absence of the litigant does not entitle the Court to ignore the principles of evidence. Where a proceeding is heard ex parte, it is incumbent upon the Court to closely examine the evidence to ensure that it is admissible. It would appear that neither the magistrate nor the prosecutor fully understood the requirements of the Act and the Schedule with respect to an ex parte hearing, where a brief of evidence had been served pursuant to s.37. Although the magistrate directed that the matter could proceed ex parte, at the request of the prosecutor and presumably pursuant to s.41(2)(b), the procedure laid down by clause 5 of Schedule 2 was ignored. Further, despite the direction, the prosecutor called oral evidence relating to the charge.
22 Mr Chris Ryan SC, on behalf of the respondent, submitted that although the Court had directed that the matter should proceed ex parte, the charge was not heard and determined in accordance with clause 5 of Schedule 2, the jurisdiction was accordingly not properly exercised, and the matter should be remitted to the Magistrates' Court to be re-heard. Mr Hardy, on behalf of the appellant, opposed this course, and submitted that on the evidence placed before the magistrate, the informant had failed to prove the charge, and accordingly the appeal should be allowed and the charge dismissed.
23 This Court on an appeal, after determining the same, has the power to remit the case for rehearing to the Magistrates' Court.[1] A factor which is relevant to the exercise of that power in the present matter is the effect in law of what the magistrate did. The thrust of Mr Ryan's submission was that the jurisdiction had not been exercised and accordingly, the proceeding was a nullity. Before considering any such question, it is necessary to hear and determine the appeal before the Court. At the outset, it is necessary to state a number of concessions made on behalf of the respondent.
Concessions by Respondent
24 Mr Ryan, on behalf of the respondent, conceded that the hearing conducted by the magistrate was not in accordance with the law. He submitted that once the magistrate had granted leave to proceed ex parte, the proceeding should have been conducted pursuant to clause 5 of Schedule 2. The Court did not properly exercise its jurisdiction. Further, he conceded that on the evidence before the magistrate, the informant failed to prove the case in a number of respects. He accepted that it was essential in proving the offence prescribed by s.49(1)(f) of the Act that the preliminary breath test was performed in accordance with the Act. The authorities establish that an informant must prove that the preliminary breath test was conducted pursuant to s.53(1). See Smith v Van Maanen;[2] DPP v Webb;[3] DPP v Foster;[4] and DPP Reference No. 2 of (2001).[5]
25 I must say that I have difficulty with the proposition that it is an essential element of the proof of a breach of s.49(1)(f) that a preliminary breath test has been undergone. Section 49(1)(f) establishes that certain conduct is an offence. It is a statutory offence. The elements which constitute the offence are established by the provision. There is no common law rule that a prosecution must prove that the evidence was lawfully obtained. Of course, it would be open to a defendant to raise such an issue. Whether or not the evidence would be excluded would be a matter for the Court. The mere fact that there are a number of provisions in the Act which deal with the right to demand a preliminary breath test, does not appear to me to be a basis for inferring that the Legislature intended that it was an essential element of proof of an offence under s.49(1)(f) that a preliminary breath test had been undertaken in accordance with the law. However, it is clear that the authorities establish the proposition and they bind both this Court and the Magistrates' Court.
26 In this case, there was oral evidence that a preliminary breath test had been undertaken, and had established the presence of alcohol on the breath of the appellant. In a recent decision in this Court, Hargrave J held that it was necessary to prove that the preliminary breath test was conducted on a prescribed device.[6] Mr Ryan did not seek to argue to the contrary. He accepted that there was an omission in the oral evidence that the device was a prescribed one, and that this was fatal to the success of the prosecution. In the circumstances, it is unnecessary for me to consider the question decided by Hargrave J that the informant must prove that the preliminary breath test was conducted on a prescribed device.
27 The third concession made by Mr Ryan was that on the oral evidence before the magistrate, the informant failed to prove that the person who operated the breath analysing instrument was authorised to do so by the Chief Commissioner of Police. Section 58(2) of the Act is an evidentiary provision which, if complied with, provides evidence of certain matters concerning the breath analysing instrument and its use. The production of the certificate containing the prescribed particulars produced by the instrument is conclusive proof of certain matters, unless the accused person gives notice in writing to the informant. The appellant did so in the present matter. But that is not the end of the certificate. It still has evidentiary value. By reason of s.58(2D), a certificate remains admissible in evidence but if notice is given, "in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that sub-section." As stated, it appears the certificate was tendered in evidence.
28 In Furze v Nixon,[7] the Court of Appeal held[8] that if the certificate is no longer conclusive proof, its contents provide evidence, but only as to the matters contained in the certificate. In the present matter, the certificate did not state that the operator was authorised by the Chief Commissioner of Police. Accordingly, on the evidence before the magistrate, there was no proof of the fact that the operator was authorised to operate the instrument.
29 I also have difficulty with the reasoning in Furze v Nixon.[9] The certificate is still admissible in evidence even though notice has been given. Sections 58(2) and 58(2D) make it clear that it is evidence, but no longer conclusive evidence. It is not only evidence of the facts and matters contained in it - see s.58(2)(a) - but on a plain reading of the two provisions, is evidence of the other matters set out in s.58(2). The difference, however, is that it is not conclusive evidence, which means that it is open to a defendant to challenge the evidence. The certificate is given pursuant to s.55(4) of the Act. The certificate must contain prescribed particulars. The prescribed particulars are set out in Regulation 203 of the Road Safety (General) Regulations 1999. The prescribed particulars do not include some of the matters set out in s.58(2)(b)-(f) (inclusive) of the Act. Despite this, the certificate is conclusive proof of all those matters unless notice is given. All that changes on a notice being given, is that the evidence is no longer conclusive. However, it is still evidence. It is then a matter for the defendant to contest any of the factual matters set out in s.58(2). The reasoning in Furze v Nixon seems to me to be inconsistent with the intention of the Legislature. However, Furze v Nixon is a decision which binds this Court and Mr Ryan did not seek to submit that the observations made by the Court of Appeal were obiter dicta or that the reasoning was incorrect.
30 By reason of the concessions made, it was accepted on behalf of the respondent that the Court had not followed the proper procedure after a direction was given that the matter proceed ex parte, and further, that the oral evidence called was deficient and failed to prove the case against the appellant.
31 As stated, it was Mr Ryan's submission that the orders should be set aside and that the charge be remitted to the Magistrates' Court so that the proper procedure should be followed and the jurisdiction exercised in accordance with the law. I interpolate to observe that the respondent has not appealed the orders made in the Magistrates' Court, nor has he sought judicial review. In the circumstances, it was most unlikely that the respondent would have had a right to appeal or standing to bring judicial review.
32 Mr Hardy countered Mr Ryan's submission by submitting that the police should ensure that a summary prosecution is properly presented, that all evidence is placed before the Court, and that the charge be proven beyond reasonable doubt. He submitted that the oral evidence was defective.
33 The appellant has appealed the orders. He has invoked the appellate jurisdiction of this Court. The appeal must be heard and determined.
Points of law and grounds of appeal
34 The Notice of Appeal filed on 2 November 2005 identified three points of law. The first point raised the question of whether the magistrate erred in law in convicting the appellant given that notice had been given pursuant to s.58(2) of the Act, the operator of the breath analysing instrument had not been called as a witness, and no order was made pursuant to s.58(2C). The point was that there was no evidence before the magistrate of the matters set out in s.58(2)(a) - (f) (inclusive) of the Act.
35 The second point raised the question of whether the prosecution had failed to prove that the preliminary breath test had been conducted using a device prescribed under s.53 of the Act. The third point raised was the question of whether the magistrate erred in law in convicting the appellant when "all of the evidence given by the informant was hearsay".
36 The Notice of Appeal, after stating the questions of law, then proceeded to state what are described as eight grounds of appeal. Save for grounds 7 and 8, they do not constitute grounds of appeal. In the circumstances, it is more convenient to deal with the points of law as to the grounds of appeal. They raise the real issues.
First point of law
37 On the assumption that the only evidence before the Court was the oral evidence given before the magistrate, the ground has clearly been made out. By reason of Furze v Nixon, the certificate produced by the breath analysing instrument did not contain certain matters that must be proven. It was necessary to prove that the operator was authorised to do so by the Chief Commissioner of Police and that the instrument was one within the meaning of the Act. This ground has been established.
Second point of law
38 On the basis that the decision of Hargrave J in Shabbir Sirajuddin v Glenn Ziino,[10] is correct, there was no proof that the preliminary breath test had been conducted using a device prescribed under the Act. This ground has also been established.
Third point of law
39 This point of law has not been made out. The informant's evidence was not all hearsay.
Conclusion
40 The appellant has established a number of grounds of appeal and is entitled to have the orders set aside. Mr Ryan submitted that the magistrate, having directed that the matter should proceed ex parte pursuant to s.41(2) of the Court Act, did not exercise the jurisdiction of the Court as required by s.41(2)(b), namely, to proceed in accordance with Schedule 2. There is no doubt that both the magistrate and the prosecutor misunderstood the procedure to follow where a direction is given that the charge be heard and determined ex parte. But the effect of the mistake is not to make the proceeding null and void. At most, it could be voidable, which means that on appeal or judicial review, the orders made could be set aside. What took place did not constitute a want of jurisdiction. The Magistrates' Court clearly had the jurisdiction to hear and determine the charge. It made a mistake in its procedure to hear and determine the matter, having directed that it be heard ex parte. Nevertheless, despite that direction, oral evidence was given. The Court exercised its jurisdiction. What it did may arguably be voidable, but is not null and void. Sections 37 and 41 of the Court Act, and Schedule 2, do not relate to the jurisdiction of the Magistrates' Court but are provisions which provide for a certain procedure in relation to the exercise of the jurisdiction. The Court exercised the jurisdiction and what occurred did not make the purported exercise of the jurisdiction void. This is made clear by what Dixon J said in Parisienne Basket Shoes Pty Ltd v Whyte.[11] His Honour said: