Authorised Officer Ian Beer v D'Aquino & Ors

Authorised Officer Ian Beer v D'Aquino & Ors - [2006] NSWSC 821 - NSWSC 2006 case summary — Zoe

[14]

4 The issues raised by paragraph 1 in the motions filed on behalf of the defendants (being the subject of the separate questions) are common to each of the proceedings, as are the issues raised by the prosecutor's motion. 5 Each of the motions came on for hearing on 15 June 2006. It was agreed that it was convenient for me to deal with the motions in each of the six proceedings together. At the conclusion of the hearing the prosecutor sought and was given leave to file supplementary written submissions. These were received on 30 June 2006. Submissions in reply were received on 17 July 2006. 6 The facts are not in issue. The New South Wales Food Authority (the Authority) is constituted under Pt 9 of the Food Act. The prosecutor in each case is described as an authorised officer. An authorised officer for the purposes of the Food Act is a person appointed under Division 3 of Pt 9. 7 In July 2004 the Authority instructed solicitors to advise it in relation to alleged breaches of the Food Act committed by the defendants. 8 In early December 2004 the Authority instructed its solicitors to prepare documents in relation to alleged breaches of the Food Act by the defendants to be filed in this Court. The solicitor responsible for the conduct of the matters on the Authority's behalf took advice from counsel and the thereafter sought to file two documents, a summons (which was accepted) and a minute of order, which was returned to him. An officer in the Registry advised him that the Judge would make an order at a later time in the proceedings. These events occurred on 16 December 2004 and related to summonses in proceedings 14178/2004. Proceedings on this summons have been discontinued. 9 On 21 December 2004 summonses in proceedings 14217/02, 14218/02, 14219/094, 14220/04, 14221/04 and 14222/04 were filed. No other document was filed in any of these proceedings. 10 Solicitors acting for the defendant, Fernbrew Pty Ltd trading as D'Aquino Bond Wholesalers (Fernbrew), agreed to accept service of the summons in each of the proceedings and copies of the summonses were sent to them. Subsequently the solicitors acting for Fernbrew entered an appearance in each of the seven sets of proceedings. 11 On 25 May 2005 proceedings on summonses 14178/04, 14218/04, 14220/04 and 14221/04 were discontinued. 12 On 8 June 2005 three further summonses, 12447/05, 12455/05 and 12456/05 against D'Aquino Bros Pty Ltd (D'Aquino) were filed in the Registry of the Court by the solicitors acting for the Authority. No other documents were filed. The solicitors acting for D'Aquino agreed to accept service in relation to the three further summons matters and subsequently entered an appearance on behalf of D'Aquino in each proceeding. 13 The proceedings are brought in respect of offences that are alleged to have been committed under s18(3) and s 21(2) of the Food Act.

[19]

21 Part 5 of Ch 4 of the Criminal Procedure Act 1986 (the CPA) governs proceedings in this Court in its summary jurisdiction. Section 245 provides as follows: 245 (1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner. (2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise. 22 Division 2 of Pt 5 of Ch 4 deals with the appearance of accused persons in summary proceedings before the Supreme Court, it includes s 246 which provides: 246 (1) A prosecutor may apply for an order: ( a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. (4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a). (5) An order for the apprehension of a person: (a) must be addressed to all police officers, and (b) may be addressed to any other person specified in the order, and (c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court. (6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order. 23 In each of the proceedings the summons claims an order that the defendant (Fernbrew or D'Aquino, as the case may be) appear before a judge of the Court to answer to the offence of which particulars are given.

[21]

25 The summons in proceedings 12447/05 is in these terms: The plaintiff claims: An order that the defendant D'Aquino Bros Pty Ltd (ACN 000 106 472) a body corporate whose registered address is at level 1102, 309 Pitt Street, Sydney in the State of New South Wales appear before a judge of the Court to answer to the offence that in breach of s 18(3) of the Food Act 2003 on 10 June 2004 at 129 Bathurst Road, Orange in the State of New South Wales the defendant, being the proprietor of food business, to wit a liquor business known as D'Aquino's Liquor, did sell food, namely bottled whisky, known as "Regency Whisky" which was falsely described in that the label on the bottle stated that the contents were Regency Whisky when it was not. TO THE DEFENDANT: D'AQUINO BROS PTY LTD [000 106 472] of: Level 1102, 309 Pitt Street, SYDNEY NSW 2000 If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence. … Time: 9.00am on 18 July 2005 Place: Queen's Square, Sydney 26 Each of the summonses in the other proceedings is in like terms, save that the particulars of the offence differ and that the defendant in the summonses issued in 2004 is, in each case, Fernbrew. No complaint is made as to the description of the offence or the sufficiency of the particulars in any proceeding. 27 The defendants submit that the summons does not claim an order under s 246(1) of the CPA and does not state that the defendant is to be dealt with according to law for the commission of the offence. In their submission it follows that the proceedings have not been commenced in accordance with the SCR or the CPA, which by s 246(2) requires that the application be made in accordance with the rules. A further complaint that is said to go to the valid commencement of the proceedings, is the absence of an affidavit in support of the application for an order under s 246(1).

[24]

31 Nothing in the provisions of Pt 5 of Ch 4 of the CPA or in Div 2 of Pt 75 of the SCR requires that a prosecutor applying for an order under s 246(1) file an affidavit in support of the application. Part 75 r 9 contemplates that an affidavit may be filed with the summons and, in that event, it is to be served personally on the defendant with the summons and a copy of the minute of order. However, in the absence of a requirement under the Act or rules I do not consider the filing of an affidavit to be a condition of the valid commencement of proceedings for an offence in the summary jurisdiction of this Court. In this respect the scheme is to be distinguished from that under s 41 of the Land and Environment Act 1979 (as it then stood) and the Land and Environment Court Rules, which was considered in McConnell Dowell Constructors v Environment Protection Authority [2000] NSWCCA 367; 50 NSWLR 127 per Spigelman CJ at 135 136; [58] - [59]. 32 Mr Hodgkinson acknowledged that the provisions of s 246 and the SCR had not been complied with in any of the proceedings. He submitted that nonetheless proceedings for an offence had been validly commenced in each case. He relied on the decision of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308. The appellant in McGerty filed a summons in the Registry of the Land and Environment Court claiming an order that the respondent appear before a Judge of the Court to answer to an offence, which was alleged to have been committed under the Clean Waters Act. The Registrar purported to make the order. It was conceded that he had no power to do so. Subsequently, the prosecutor sought an order from a Judge of the Court. The Judge declined to make the order, holding that proceedings for an offence under the Clean Waters Act are instituted by application to a Judge pursuant to s 41 of the Land and Environment Act and not by summons. A six-month limitation period applied to the offence. The summons had been filed within time but the period had expired by the time the application for the order was made to the Judge. The proceedings were in Class 5 of the Land and Environment Court's jurisdiction and their commencement was subject to the SCR. Part 75 Div 2 of the SCR made applicable to proceedings to which it applied Pt 7 r 6 and the Supreme Court (Summary Jurisdiction) Act 1967. Part 75 r 7 provided that proceedings were to be commenced by summons claiming an order under s 4 of the latter Act and claiming that the defendant be dealt with according to law for the commission of the offence.

[29]

36 Mr Temby referred to the decision of the Court of Criminal Appeal in R v Janceski (2005) 64 NSWLR 10 per Howie J (with whose judgment Hunt AJA and Johnson J concurred) at [228] as to the need for strict observance of the technicalities of a criminal trial. Janceski was a case in which a criminal trial proceeded upon an indictment that was signed by a person who was not authorised to sign indictments. The Court held that the consequence of this failure, which went to the authority to bring proceedings on indictment, was invalidity. The Chief Justice noted at 29; [98]: [F]or good reason, the courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen. 37 The issue is whether the proceedings have been validly commenced and, hence, whether the court has jurisdiction to determine them. The prosecutor accepts that an order under s 246(1) of the CPA was not made. Section 246 is directed to the means by which the accused person is brought before the court to answer to the offence charged in the order. Subsection (2) requires that the application for the order be made in accordance with the rules. I do not consider that the failure to apply for an order in accordance with the rules deprives this Court of jurisdiction to determine the proceedings. 38 In my opinion proceedings for the offence was in each case commenced by filing the summons in the Registry of the Court. The summons claimed an order under s 246 in respect of the offence, that is to say, it claimed an order that the defendant appear before a judge of the court to answer to the offence the particulars of which were stated. The circumstance that the summons did not, in terms, claim an order that the defendant be dealt with according to law for the commission of the offence is a matter of form, which I do not consider results in invalidity. I accept Mr Hodgkinson's submission that, if it be a defect, it is one to which s 16(2)(b) of the CPA applies. This provides that no objection may be taken to any indictment by which criminal proceedings for any offence that is to be dealt with summarily are commenced on the grounds of any alleged defect in it in substance or in form. "Indictment", for the purposes of s 16, includes any document by which criminal proceedings are commenced: s 15. 39 The defendants' motions claimed an order that before the defendant was required to plead to the charge under Pt 75 r 11B the Court decide as a separate question under UCPR r 28.2 whether it can take cognisance of the proceedings and whether it has jurisdiction to hear and determine the proceedings pursuant to s 245 of the CPA. Subsequently by consent directions were made in the proceedings for the separate determination of these two questions. Rule 28.2 does not apply to criminal proceedings in the summary jurisdiction of the Court. The two questions seem to me to raise the same issue, which is whether the court has jurisdiction to determine the proceedings. For the reasons that I have given I hold that it does.

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