Authorised Officer Ian Beer v D'Aquino & Ors

Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers PARTIES : Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472) Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472) Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472)

FILE NUMBER(S) : SC 14217/04; 14219/04; 14222/04; 12447/05; 12455/05; 12456/05

COUNSEL : I. Temby QC / J Atkin (Plaintiff/Prosecutor) B. Hodgkinson SC / M. Shume (Defendant)

SOLICITORS : Moray & Agnew Solicitors (Plaintiff/Prosecutor) Cheney & Wilson Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

014217/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers 014219/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers 014222/04 Authorised Officer Ian Beer v Fernbrew Pty Ltd T/as D'Aquino Bond Wholesalers 012447/05 Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472) 012455/05 Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472) 012456/05 Authorised Officer Ian Beer v D'Aquino Bros Pty Ltd (ACN 000 106 472)

JUDGMENT 1 BELL J: The defendants moved on notice for an order in each of the proceedings determining as a separate question whether (i) "the Court can take cognisance of the proceedings" and (ii) "whether the Court has jurisdiction to hear and determine the proceedings pursuant to s 245 of the Criminal Procedure Act 1986." I determined (i) that it can and (ii) that it does: Authorised Officer Ian Beer v D'Aquino & Ors [2006] NSWSC 821. 2 There were also before the Court notices of motion filed in each of the proceedings claiming orders pursuant to s 245(2) (scil. s246 (2)) of the Criminal Procedure Act 1986 (the CPA) that the Court issue an order forthwith in terms of the minute of order annexed to the motion. The minute of order is in each case addressed to the defendant and directs it to appear at a time and place specified to answer to the offence alleged by the prosecutor (and particularised in the order) to be dealt with according to law. 3 I invited the parties to file supplementary written submissions with respect to the relief claimed in the prosecutor's motions in light of a submission that had been advanced by the defendants at the hearing: (judgment, paragraph 42). Written submissions dated 31 August 2006 were received from Mr Temby QC and Mr Atkin on behalf of the defendants and on 15 September 2006 from Mr Hodgkinson SC and Mr Shume on behalf of the prosecutor. 4 In light of the further submissions made on the defendants' behalf, which did not appear to address the issue to which I referred, and which seemed in one respect to be inconsistent with the submissions that were advanced on their behalf at the hearing, I will set out an extract from the transcript of the hearing: HER HONOUR: But if that were determined against you, and I were to conclude that there are proceedings in respect of which this Court is seized with jurisdiction alleging the commission of an offence by each of the six defendants, what would remain - why would I find the proceedings had been validly commenced for those offences and yet decline to make orders, having the effect of requiring your clients in each instance to answer those charges? TEMBY: Yes, your Honour. With respect because, in our submission, on a proper construction of the Act and Rules, affidavit evidence is necessary to enable an order to be made that we attend and answer. HER HONOUR: We are having a circular argument, I think, Mr Temby, because if that submission be good, it goes to jurisdiction. That is your contention. TEMBY: If that submission be good it does go to jurisdiction. HER HONOUR: If the jurisdictional point is decided against you, it would seem to me necessarily that that would fall away, would it not? TEMBY: If it necessarily falls away then your Honour is quite right. If there is no need for an affidavit, then there is no reason why the order sought should not be granted. I do not contend otherwise. If, and there might be room for this, there is a need for an affidavit but, notwithstanding that, the proceedings have been commenced and the Court has jurisdiction and that there might be room for some such committal course, which does not seem likely. HER HONOUR: No. TEMBY: But, if it is possible, then no affidavit, which would enable an order to be made, has yet been brought in or read and that would remain to be done and we might well want to be heard in opposition to that step being taken but that is, with respect, for another day (T 25.38-26.22) (emphasis added). 5 The submissions filed on the defendants' behalf do not develop any contention that even if the filing of an affidavit is not a condition of the valid commencement of proceedings, the court would not require the defendants to appear to answer to the offence in a case in which the prosecutor had not filed an affidavit. I proceed on the basis that the defendants may be required to answer to the offence particularised in the summons in each case without the prosecutor being required to file an affidavit setting out the factual basis of the allegations. 6 The defendants' submissions of 31 August contend that there is no rule of court permitting the amendment sought by the prosecutor and that the inherent power of the Court cannot prevail against specific provisions in the Act and Rules - a reference to the provisions of s 246(2) of the CPA and Div 2 of Pt 75 of the Supreme Court Rules 1970 (the SCR). The submission is made that: Whilst the decision of the Court dated 18 August 2006 finds that the proceedings were validly commenced that finding does not enable the Prosecutor to simply amend the process to overcome perceived defects (WS [5]). … It is submitted that the amendments sought by the Prosecutor cannot be made. Accordingly the proceedings should be stayed permanently (WS [7]). 7 There is no necessity to amend the summons in any of the proceedings. If the summonses are defective by reason of the omission of the words, "the defendant is to be dealt with according to law for the commission of the offence" (Pt 75 r 7 of the SCR) the defect is one of form and s 16(2) of the CPA operates to preclude an objection being allowed for such a defect.

8 The defendants cite the decision of the High Court in Doyle v Commonwealth (1985) 156 CLR 510 at 518 in support of the proposition that, when a power is expressly conferred on the court, subject to a condition, the court may not relieve a party from the necessity of complying with the condition by recourse to inherent power. In Doyle the Court set aside an order committing a number of persons for contempt in circumstances in which they had not been served with the notice of motion for committal. In this case the defendants' contention is that notwithstanding that the proceedings have been validly commenced, the failure to obtain and serve an order in accordance with s 246 of the CPA and Div 2 of Pt 75 of the SCR at the time the summons was served produces the result that the proceedings should be permanently stayed. 9 The power to stay the prosecution of proceedings for a criminal offence will be used only in exceptional circumstances: Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 31; Brennan J at 50; Gaudron J at 76. In my view, the defendants' right not to be tried unfairly for these offences has not been infringed. The proceedings have been validly commenced. The summons in each case gives sufficient particulars of the offence for the defendant to know the case that is put against it. Section 246 is concerned with the means by which a defendant is brought before the court to answer to a charge that may be dealt with summarily. I do not consider that a failure to comply with the provisions of s 246 of the CPA and Div 2 of Pt 75 of the SCR requires the Court to permanently stay proceedings alleging the commission of a criminal offence. 10 The defendant in each case is a corporation. In the proceedings brought against Fernbrew, an appearance was entered in accordance with Pt 11 r 1A of the SCR (as it then stood) on 14 February 2005. In the proceedings in which D'Aquino is a defendant, appearances were entered in accordance with the SCR on 20 June 2005. Pursuant to Pt 9 r 2(3) of the SCR the originating process is taken to have been served on the defendant personally on the date on which the defendants' notice of appearance is filed. Part 75 r 2(4) (as it then stood) provided that Pt 9 rules 1-11 apply, so far as applicable, to proceedings under Div 2 (which deals with the summary jurisdiction of the Court).

11 In his further submissions the prosecutor notes that the Court has determined that each proceeding has been validly commenced (and that it has jurisdiction to hear and determine it in a summary manner) and the defendants have appeared. He submits that the Court should set a time, date and place for the hearing and determination of the issues raised in the summons. As I understand the prosecutor's submissions, he does not press for the making of the orders claimed in his motions in light of my earlier determination and the circumstance that the defendants have in each case appeared (WS 15/09/06 paragraph 6). I accept the prosecutor's submission that the appropriate course is to list the proceedings to enable the defendants to enter their pleas and give directions for the future conduct of the proceedings. I will stand the prosecutor's motions over to the same date when, assuming my understanding of his position is correct, they may be dismissed.

1. Stand proceedings nos. 014217/04; 014219/04; 014222/04; 012447/05; 012455/05; 012456/05 over to 9:30AM on Friday 6 October 2006 for the defendant to answer to the offence charged in the summons and for further directions;

2. Stand over the prosecutor's notices of motion in each of the above proceedings to 9:30AM on Friday 6 October 2006 for further directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.