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[2016] ACTSC 332
General information, not legal advice.
Supreme Court of the ACT
2016-11-18
Mossop AsJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory
CRIMINAL LAW - JURISDICTION - Application for prohibition directed to magistrate - Jurisdiction of Magistrates Court to hear charge - Whether charge may be formulated in short form authorised by statute - Whether defects in summons affect jurisdiction of magistrate when defendant has appeared
CRIMINAL LAW - CRIMINAL PROCEDURE - Speeding offence - Short form of offences specified by regulation - Whether information in short form sufficient - Whether information must also specify length of road where driver was driving - Short form sufficient - Whether particulars may be provided orally in court after plea has been entered
Australian Road Rules, r 20
Court of Petty Sessions Ordinance (No 2) 1930 (ACT), ss 12, 26-31, 30, 32-36, 38, 46, 50, 207, 228
Court Procedures Act 2004 (ACT), s 8
Justices Act 1902 (NSW)
Road Transport (General) Act 1999 (ACT), ss 53, 54, 60(1)(a), 75
Road Transport (General) Chief Police Officer Delegation 2006 (No 2)
Road Transport (Offences) Regulation 2005 (ACT), ss 5, 8, sch 1 pt 1.2
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Burnett v Brown (1929) 24 Tas LR 23
Businessworld Computers Pty Ltd v Telecom (1988) 82 ALR 499
Clayton v John L Pty Ltd (1984) 1 NSWLR 344
Cornwell v Curran [2006] ACTSC 119
Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379
Day v Rugala (1978) 20 ACTR 3
Electronic Rentals Pty Ltd v Anderson [1971] HCA 13; (1971) 124 CLR 27
Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153
Ex parte Walker; Re Goodfellow [1944] NSWStRp 53; (1944) 45 SR (NSW) 103
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Knaggs v Director of Public Prosecutions [2007] NSWCA 83
Lillyman v Pinkerton [1982] FCA 279; (1982) 45 ALR 543
Lillyman v Pinkerton (1982) 63 FLR 93
Martin v Shakespeare [1920] SALawRp 12; [1920] SALR 257
Oates v Williams [1998] FCA 775; (1998) 84 FCR 348
Peterson & Magistrate Soames; Ex parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291
Smith v Moody (1903) 1 KB 56
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86
Chief Magistrates of the Magistrates Court of the Australian Capital Territory (First Defendant)
ACT Director of Public Prosecutions (Second Defendant)
1. This is an application for an order to the same effect as a writ of prohibition to restrain the Chief Magistrate from proceeding to hear a speeding charge and a related charge of failing to provide information as to the identity of the driver of a vehicle. The application is based on a number of grounds, each of which asserts that her Honour would exceed her jurisdiction if, in the circumstances, she proceeded to hear the proceedings.
2. The plaintiff, a retired legal practitioner, commenced these proceedings by originating application filed on 15 July 2015. The only defendant named in the proceedings was the Chief Magistrate of the ACT Magistrates Court.
3. The proceedings were first before me on 31 July 2015. I ordered at this point that the informant in the proceedings, James McCue, be included as the second defendant in the proceedings. At that stage it was anticipated that the plaintiff would also be commencing proceedings in relation to other proceedings in Magistrates Court. He did not ultimately do so. The proceedings were listed for hearing and were heard on 10 November 2015.
4. In advance of the hearing, in accordance with the directions of the Court, the following written submissions were filed:
(a) the second defendant's submissions filed 17 September 2015;
(b) the plaintiff's submissions in reply filed 23 October 2015;
(c) the plaintiff's further submissions in reply filed 26 October 2015.
5. At the hearing on 10 November 2015 the plaintiff relied upon his own affidavits dated 15 July 2015 and 31 August 2015, which contained a mixture of evidence and submissions.
6. The defendant relied upon the affidavits of Diana Likeman dated 30 July and 17 September 2015.
7. Neither deponent was required for cross-examination.
8. At the conclusion of the hearing on 10 November 2015 directions were made relating to the filing and service of written submissions relating to certain provisions of the Magistrates Court Act 1930 (ACT) (MC Act) and the decision otherwise reserved. Written submissions were filed on 17 November 2015 (plaintiff), 23 November 2015 (second defendant) and 24 November 2015 (plaintiff).
9. The evidence was inadequate to the extent that it did not include the transcript of proceedings on 13 May 2015 and, more importantly, did not include the transcript of the reasons for decision given by the Chief Magistrate on 10 June 2015. The significance of these dates will become apparent in the light of the chronology of proceedings in the Magistrates Court.
Chronology of the proceedings in the Magistrates Court
10. In order to understand the nature of the application and the grounds set out in the originating application it is necessary to set out a chronology of events surrounding the proceedings in the Magistrates Court. The proceedings in the Magistrates Court involved two charges against the plaintiff, a speeding charge (CC2014/5882) and a charge of failing to provide a written statement about the name and address of the driver of a vehicle (CC2014/10654).
Date of alleged breach of r 20 of the Australian Road Rules
Date of summons in relation to charge CC 2014/5882.
That he in the Australian Capital Territory on 25 March, 2014, in a non-school zone, did exceed the speed limit by greater than 15 km/h but equal to or less than 30 km/h
The proceedings were first before the Magistrates Court and the plaintiff entered a plea of not guilty.
Unsigned letter from the informant to Mr Burridge including demand under s 60(1)(a) of the Road Transport General Act 1999 (ACT) that he identify the driver of his motor vehicle at "6.53pm on Thursday 25 March 2014" and provide a written statement to the informant within 14 days.
That he in the in the [sic] Australian Capital Territory on 28 August, 2014, the responsible person for a vehicle, did not give a written statement about the driver to a police officer when required.
Hearing before Chief Magistrate (described in more detail below). Applications by Mr Burridge to dismiss the proceedings dismissed. Application by Mr Burridge to discharge subpoena to his wife Sina Burridge dismissed. Proceedings adjourned to permit further argument as to the validity of the summons. Written admission given by Mr Burridge in the following terms:
Further to my agreement with the DPP today for the subpoena of Sina Burridge to be discharged, I acknowledge that vehicle YEY40N driven on Thursday 25th of March 2014 was driven by me.
Further oral submissions by Mr Burridge. The transcript of these submissions is not in evidence. The prosecution was permitted to file written submissions in reply.
Chief Magistrate gives her decision on the validity of the summons. A transcript of her Honour's reasons is not in evidence in these proceedings. The submissions filed by the respondent say: "10 June 2015 Her Honour found that the presumption of regularity applies, the summons was validly issued and served in time and there had been no abuse of process. She stated that the subpoena of Sina Burridge had not been discharged."
Date upon which Magistrates Court proceedings had been listed for hearing, but which was vacated due to the filing of the originating application in this Court.
11. The only transcript of the proceedings before the Chief Magistrate that was in evidence in this Court was the transcript of the proceedings on 23 April 2015 when the proceedings had been listed for hearing. Mr Burridge appeared in person. Ms Likeman appeared to prosecute. Mr Burridge made two applications:
(a) first, that both informations be dismissed because they involved an abuse of process; and
(b) second, that a subpoena to his wife, Sina Burridge, be set aside.
12. So far as the second of these was concerned, the application appears to have been based on the proposition that Mrs Burridge was not a compellable witness in the case against Mr Burridge. Her Honour declined to hear Mr Burridge in support of the application as the application had been made by his wife and she was not present. So far as the application based upon the submission that the proceedings involve an abuse of process was concerned, her Honour rejected that application for three reasons.
13. First, the Director of Public Prosecutions was properly entitled to take over the proceedings commenced by an informant pursuant to s 6 of the Director of Public Prosecutions Act 1990 (ACT).
14. Second, the use of the power under s 60 of the Road Transport (General) Act 1999 (ACT) (RTG Act) was part of the investigative process and there was no impropriety in terms of the timing of the making of the request.
15. Third, there was no abuse of process involved in the Australian Federal Police (AFP) running an adjudication system in relation to the traffic infringement notice as well as the availability of the judicial process.
16. Mr Burridge then applied for an adjournment of the proceedings. The Chief Magistrate heard submissions from Mr Burridge and the prosecutor. Her Honour granted an adjournment until 2.15 pm.
17. At 2.15 pm the prosecutor indicated that she would commence her case without a formal opening. The Chief Magistrate explained to Mr Burridge the way the proceeding would work and, in particular, the burden on the prosecution to prove the matter beyond reasonable doubt. At that point Mr Burridge said that there were some legal points he wished to raise. He then proceeded to raise a number of legal points.
18. He contended that he had not been properly served pursuant to pt 3.7 of the MC Act. This is a part of the Act (ss 116A - 116I) which provides for "Service and pleading by post for certain offences". In relation to the submission that he had not been properly served, her Honour asked "What does it matter; you're here." Mr Burridge made submissions as to why pt 3.7 was not complied with. Her Honour, in the course of argument, expressed the view that the procedure that Mr Burridge relied upon was an optional procedure, not a mandatory form of service. Mr Burridge treated that as a ruling and moved onto his next point.
19. The next point was based on the decision of the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 (John L). At that point the prosecutor applied, as she had earlier foreshadowed, to amend CC 2014/10654 so that it identified the date of the offence as "between 20 August 2014 and 3 September 2014". Mr Burridge opposed that amendment and submitted that the amendment represented an injustice to him because the information was now different to that which it had been for more than a year and it was being changed at the last moment. Her Honour allowed the amendment.
20. Mr Burridge then submitted in relation to CC 2014/5882:
(a) The information was not properly sworn because there was no signature by the informant, the identity of the deputy-registrar signing it was not disclosed and s 30 of the MC Act required that it be in writing and on oath. He submitted that the face of the document needed to show that it had been sworn.
(b) The information was defective because the charge of a contravention of r 20 of the Australian Road Rules did not identify "the length of road" where the driver was driving. He developed that submission by reference to the decision in John L.
21. When hearing the submissions in reply from the prosecutor the Chief Magistrate asked about provisions in the road transport legislation that permitted the charging of offences under the Australian Road Rules in abbreviated form. Reference was then made to s 75 of the RTG Act and the provisions of pt 1.2 of the Road Transport (Offences) Regulation 2005 (ACT).
22. Mr Burridge submitted that the provisions of that regulation only related to the element of speed and did not have the effect that it was possible to omit one of the basic elements of an offence. He submitted that it was the element that was being abbreviated rather than the whole charge.
23. Her Honour ruled that she was bound by the provision that permitted charges to be made in an abbreviated form. However, she asked the prosecutor to particularise the stretch of road upon which the offence was alleged to occur. The prosecutor did that, identifying Clift Crescent in Richardson between Ashley Drive and Johnson Drive.
24. Her Honour then turned to the information in CC 2014/10654 and whether or not that charge had been adequately particularised. As a result of a discussion with her Honour, Mr Burridge indicated that he wished to preserve his position in relation to that argument and did not wish for it to be dealt with as a preliminary point.
25. Her Honour then returned to the final matter, namely, whether or not the summons and information were "properly either sworn or affirmed, such that they can be proceeded with". The prosecutor submitted that the summons in CC 2014/5882 was based on information sworn on 13 June 2014. She submitted that there was no need to go behind the signed summons. It appears from the interchange between her Honour, Mr Burridge and the prosecutor that the issues that were identified were whether or not there was a requirement that the signature of the police officer appear on the document and whether or not it was necessary that the identity of the deputy registrar be disclosed on the document.
26. At that point her Honour raised the possibility that Mr Burridge may wish to give further consideration to the statutory provisions that may be relevant and Mr Burridge raised the fact that he was feeling unwell. Her Honour made it clear that the one issue that she was satisfied still remained undetermined was whether the summons and information were defective. Arrangements were then made to have the preliminary issue further heard prior to commencement of the hearing proper. The proceedings were adjourned until 13 May 2015 part heard before the Chief Magistrate. Just before the conclusion of the proceedings Mr Burridge's admission that he was the driver of the vehicle was tendered and became Exhibit 1.
27. As pointed out above, there is no transcript of the submissions made by Mr Burridge on 13 May 2015. The written submissions of the prosecution in reply to those submissions were in evidence. There is no transcript of the reasons of the Chief Magistrate for her decision rejecting Mr Burridge's application in relation to the form of the summons.
28. The originating application filed 15 July 2015 sought an order in the nature of and to the same effect as a writ of prohibition directed to the Chief Magistrate of the Magistrates Court of the Australian Capital Territory prohibiting her from hearing two criminal charges CC 2014/5882 and CC 2014/10654.
29. The grounds of the application are set out in the originating application as follows.
1.1 In respect of CC 2014/5882 (attached marked "A") jurisdiction has not been founded or vested in the Magistrates Court.
1.2 The information does not provide me with the substance of the charge which I am called upon to meet, including identification of the essential factual ingredients. An essential factual ingredient in Australian Road Rule 20 is "the length of road where the driver is driving". Besides not specifying the length of road, the information did not even include the above words so as to give at least a clue as to the existence of that ingredient. The words "In the Australian Capital Territory" are otiose; the matter could not but be in the A.C.T.
1.3 The information is technically and formally defective. It has not been duly sworn or even signed, or dated undermentioned or otherwise (since any recital of a fact is dependent upon the manifest existence of that fact), all without identified hand as to its attestation. The copy of CC 2014/5882 served on me is the same as the court copy.
1.4 Further, the information has not been laid pursuant to Road Transport (General) Act 1999 subs 53(2). S. 54 provides for delegation and sub delegation. An act done in purported exercise of a statutory power is valid if it falls within the statutory [sic] which confers the power; validity is thus dependent upon the identity of the authority and the doer of the act. Identity in this sense means the quality or condition of being the same: SOED 1. Any power derived through S. 54 must be precisely expressed in and at the purported exercise of that power for it to be valid; and thus the information does not so express.
1.5 Notwithstanding submission to the defendant as set out above, she decided on 10.6.15 to set both matters down for evidentiary hearing on 30.7.15, so in effect determining that jurisdiction had been founded or vested in the court.
1.6 The defendant in that decision confirmed a ruling she had made on 23.4.15 that so-called particulars that she had irregularly elicited from the prosecutor sufficed to overcome objections that I had made. Attached marked "B" to "G" are the relevant pages of the transcript on 23.4.15 setting out that ruling and its circumstances. The defendant erred in allowing any particularisation where the res to which this can attach does not exist. That this error effectively constituted ignoring a High Court of Australia decision will be addressed in my affidavit.
1.7 Another readily identifiable major error of the defendant is as to so misinterpret that decision and other precedent as is evident from the transcript of 23.4.15. This is shown by the attachments marked above where in irregular and partisan manner the defendant invokes S. 75 of the Road Transport (General) Act 1999 together with Schedule 1, Part 1.2 of the Road Transport (Offences) Regulation 2005 so as to amount to statutory supplanting of the principles of that High Court case: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508. Apart from standard canons of statutory interpretation, the principle of proportionality in relation to delegated legislation renders this construction untenable. The defendant has conflated the function required to found or invest jurisdiction of informing a court of the precise identity of the offence with which it is required to deal with the function of requiring identification of the essential factual ingredients.
2.1 Whether service has been effected validly is an identifiable jurisdictional fact. The offence in matter CC 2014/5882 falls within the definition of prescribed offence in S. 116AA of the Magistrates Court Act 1930, and service must be effected in accordance with Part 3.7. The word "may" in S. 116B is within the context of the "must" of that Part, and so jurisdiction has not been founded or vested in the Magistrates Court.
2.2 Statutory Interpretation in Australia, Pearce and Geddes, 8th edition 2014, Sydney [11.12] is headed "Factors affecting decision whether obligatory or discretionary". In that section is noted the 2006 Federal Court case of Rodda v Repatriation Commission [2006] FCA 1689; 93 ALD 541. At 552 [56] Madgwick J states as follows:
... If the applicant's submissions are accepted, the Acts specific and detailed provisions are set at nought.... The express statutory scheme would be rendered pointless.
This principle applies to the Magistrates Court Act 1930 in respect of the application of Part 3.7.
2.3 At pp. 20-21 of the transcript on 23.4.15 I put the case that there had been improper service. The defendant stated "What does it matter, you're here" and otherwise made plain that the objection had been overruled.
2.4 A valid end cannot be achieved by invalid means. The principle is encapsulated by Gibbs J (as he was) in Paul v Munday [1903] ArgusLawRp 108; 9 ALR 245 at 251.
2.5 Whilst this element of my grounds might have been put forth first, in my opinion the issues raised prior are of greater public concern. A court can of course pick and choose as to what point a case turns upon, but it is submitted that the grounds first set out should be addressed.
3.1 CC 2014/10654 (attached marked "H") is intrinsically related to 2014/5882, being part of a single brief of evidence dated 29.10.14 served on me on 14.11.14.
3.2 Attached marked "I" is an unsigned letter from a police officer bearing the same name as the informant dated 15.8.14, being 8 days after CC 2014/5882 was set down for hearing pursuant to procedures set out in Practice Direction No 1 of 2009. This unsigned letter is Exhibit 2 in the matters. Thursday, 25 March 2014 is a day that does not exist. That non-existent date is also specified in statements of fact with which I have been provided. The unsigned letter is not in accordance with section 60(1)(a) of that Act and is otherwise improper. My letter in response dated 28.8.14 is in warranted terms, and the justification of my previous sentence is dealt with in my supporting affidavit.
4.1 Sina Burridge also received an unsigned letter in the same terms of requirement and demand. She responded appropriately on 28.8.14.
4.2 Her deserts were to receive on 6.4.15 a subpoena a subpoena dated 5.3.15 issued at the request of the informant personally. This subpoena was discharged on 23.4.15 as shown by the attached letter marked "J" that is Exhibit #1 - Document - Admission Acknowledging Driving Motor Vehicle on 25 March 2014.
4.3 However, mistakenly the defendant on 10.6.15 in an unordered unfathomable farmed-out manner appeared to be recharging that subpoena.
Detail of this is set out in my supporting affidavit.
30. Ten exhibits, A to J, were annexed to the originating application.
31. The grounds set out in the originating application raise issues which go to the existence of the jurisdiction of the Magistrates Court. It is possible to identify the following issues that arise in relation to the existence of jurisdiction in the Magistrates Court:
(a) Does the Magistrates Court lack jurisdiction because the information failed to specify "the length of road where the driver is driving"?
(b) Does the Magistrates Court lack jurisdiction because the information and/or summons has not been sworn, signed and dated by the informant?
(c) Does the Magistrates Court lack jurisdiction because the summons has been signed by an unidentified deputy registrar?
(d) Does the Magistrates Court lack jurisdiction because the informant has not been validly delegated power to lay the information?
(e) Does the Magistrates Court lack jurisdiction because the summons was not validly served?
(f) Does the Magistrates Court lack jurisdiction because the prosecutor provided particulars of the charge orally in response to a request by the Court?
32. I have not included amongst the issues identified any issues arising out of grounds 3 and 4. These relate to charge CC2014/10654, the charge of failing to provide information in response to a request under s 60 of the RTG Act. Any issues arising out of the terms of the letter dated 15 August 2014 are matters which are more appropriately dealt with after the case has been heard and the procedural issues arising out of the subpoena to the plaintiff's wife have been determined. They are not matters which would warrant the granting of prohibition having regard to the reluctance of courts to grant relief in relation to criminal proceedings in relation to matters not going to the jurisdiction of the court sought to be restrained: see the authorities collected in Oates v Williams [1998] FCA 775; (1998) 84 FCR 348 at 361.
33. Before dealing with the issues that I have identified it is necessary to set out some of the factual and legal background against which they must be determined.
34. Central to many of Mr Burridge's arguments were the terms of the summons which was served on him. That document was as follows:
SUMMONS TO THE DEFENDANT UPON INFORMATION
ACT MAGISTRATES COURT
IN THE AUSTRALIAN CAPITAL TERRITORY Case No CC 2014/5882
PROCEEDINGS IN THIS MATTER WILL BE CARRIED ON BY THE DIRECTOR OF PUBLIC PROSECUTIONS UNDER THE PROVISIONS OF SECTION 6 OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT
LINDSAY JOHN BURRIDGE
[ADDRESS]
WHEREAS AN INFORMATION HAS BEEN SWORN THIS
THIRTEENTH DAY OF JUNE, 2014
BY THE UNDERSIGNED POLICE OFFICER OF ACT-POLICING BEFORE THE UNDERSIGNED DEPUTY REGISTRAR OF THE MAGISTRATES COURT WHO SAYS THAT IN THE SAID TERRITORY ON MARCH 25, 2014
LINDSAY JOHN BURRIDGE
[ADDRESS] [DATE OF BIRTH]
CONTRAVENED RULE 20 OF THE AUSTRALIAN ROAD RULES
ARR.20
THAT HE IN THE AUSTRALIAN CAPITAL TERRITORY ON 25 MARCH, 2014 IN A NONSCHOOL ZONE, DID EXCEED THE SPEED LIMIT BY GREATER THAN 15 KM/H BUT EQUAL TO OR LESS THAN 30 KM/H.
THESE ARE THEREFORE TO COMMAND YOU, IN HER MAJESTY'S NAME TO APPEAR AT 9 AM OF THE CLOCK IN THE FORENOON EIGHTH (EIGHTH) DAY OF AUGUST, 2014
ACT MAGISTRATES COURT
CANBERRA
TO ANSWER THE SAID INFORMATION, AND TO BE DEALT WITH ACCORDING TO LAW.
MCCUE, JAMES CHRISTOPHER, Badge No 18202
GIVEN UNDER MY HAND the day and year first undermentioned at Canberra in the said Territory
[Signature and seal]
DEPUTY REGISTRAR OF THE MAGISTRATES COURT
Court Costs at 10 June 2014 are $71.00
(a) notwithstanding the reference to "the undersigned police officer", the document is not signed by the police officer although his name and badge number are printed on it; and
(b) while a signature and seal appears above the words "Deputy Registrar of the Magistrates Court" the identity of that deputy registrar is not disclosed upon the face of the document.
36. I will deal in more depth with the issues arising from the manner in which the summons identifies the charge below.
Relevant provisions of the Magistrates Court Act
37. As at the date of the summons, 13 June 2014, the relevant provisions of the MC Act were:
12 Acts by magistrate out of court etc
(1) Any magistrate out of court or the registrar may do all or any of the following:
(a) receive an information;
(b) issue a summons or warrant on an information;
(c) issue a summons or warrant to compel the attendance of a witness;
(d) do anything else that is necessary and preliminary to a hearing.
(2) Without limiting subsection (1), if a law in force in the ACT provides that an information or complaint may be laid or made before, or a summons or warrant issued by, a court or justice of the peace, the information or complaint may be laid or made, and the summons or warrant may be issued, by a magistrate or the registrar.
...
19 Jurisdiction of court
If, by any law in force in the ACT, any offence is punishable on summary conviction or any person is made liable to a penalty or punishment or to pay an amount for any offence, act or omission, and no other provision is made for the trial of the person committing the offence, the matter may be heard and decided by the court in a summary way under the provisions of this Act.
...
Division 3.3.1 Beginning criminal proceedings - General
25 Informations
A proceeding may be started in the court by information laid by the informant or by a lawyer or anyone else representing the informant.
Division 3.3.2 Informations
26 Laying of informations
An information may be laid before a magistrate in any case where a person has committed or is suspected of having committed, in the ACT, an indictable offence or an offence that may be dealt with summarily as provided in section 19.
27 Description of people and property and of offences
(1) Such description of people or things as would be sufficient in an indictment is sufficient in informations.
(2) The description of any offence in the words of the Act, ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, is sufficient in law.
28 Power of court to amend information
(1) If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided.
(2) The court must not make an amendment under subsection (1) if it considers that the amendment cannot be made without injustice to the defendant.
...
30 Form of information
(1) If a warrant is intended to be issued in the first instance against the person charged, the information must be in writing and on oath.
(2) The oath may be made by the informant or someone else.
(3) If a summons instead of a warrant is intended to be issued in the first instance against the person charged, the information may be made orally and without oath.
(4) Subsection (3) applies whether or not the law under which the information is laid requires it to be in writing.
Division 3.3.3 Summonses
37 When magistrate may issue summons
If an information is laid before a magistrate, the magistrate may issue a summons.
38 Form of summons
A summons issued in the case of an information must be directed to the defendant, and must state shortly the matter of the information and require the defendant to appear at a certain time and place before the court, to answer to the information and to be further dealt with according to law.
...
41 Service of summons
(1) A summons issued in relation to an information may be served on the person to whom it is directed by -
(a) giving a copy of the summons to the person; or
(b) leaving a copy of the summons at the last-known or usual home or business address of the person with someone who appears to be at least 16 years old and to live or be employed at the address.
(2) Service of a summons under subsection (1) must be effected at least 72 hours before the time appointed in the summons for the hearing of the information.
(3) If it appears to the court or a magistrate or the registrar, by statement on oath or by affidavit, that from any cause service in accordance with subsections (1) and (2) cannot be effected, the court or magistrate or the registrar may extend the time for hearing.
(4) Service of a summons in accordance with this section may be proved by the oath of the person who served it or by affidavit or otherwise.
...
228 No summons or information
(1) This section applies to a conviction or order in a case if -
(a) a relevant person is present at the hearing of the case; and
(b) there is no summons or information (or an amendment of a summons or information) in relation to the person; and
(c) the person does not object at the hearing about the matter mentioned in paragraph (b).
(2) The conviction or order stands.
(3) In this section:
relevant person means -
(a) a convicted person; or
(b) a person against whom an order has been made; or
(c) a person whose goods have been condemned or ordered to be sold as forfeited.
What is the relationship between an information, a summons and the jurisdiction of the Court?
38. In order to understand the issues that arise in the present case it is useful to understand the process for the initiation of criminal proceedings established by the MC Act. The MC Act was originally the Court of Petty Sessions Ordinance (No 2) 1930 (1930 Ordinance). The Court and the 1930 Ordinance were renamed in 1985. So far as criminal proceedings are concerned, the scheme established by the 1930 Ordinance is largely still in place in the current MC Act. However, an examination of the scheme of the 1930 Ordinance is useful as it clearly describes a coherent scheme which has not been obscured by the accretion of legislative change in the period since. The scheme is one which can be linked back to the reforms achieved by the Summary Jurisdiction Act 1848 (UK) (adopted in New South Wales in 1850) repeated in the Summary Jurisdiction Act 1879 (UK), the Justices Act 1902 (NSW) and summary proceedings legislation in other States. In the discussion that follows it is important to note that the critical sections which have been set out above were in substantially the same terms in the 1930 Ordinance.
39. When the 1930 Ordinance was made it provided for proceedings in the Court of Petty Sessions to be commenced "by an information or a complaint, which may be laid or made by the complainant in person, or by his counsel or solicitor or other person authorised on their behalf". Informations commenced criminal proceedings, complaints commenced civil proceedings. Sections 26 to 31 of the 1930 Ordinance dealt with informations. Informations were the appropriate means of initiating proceedings alleging an indictable offence or an offence which could be dealt with summarily. Sections 32 to 36 dealt with complaints. Complaints were the appropriate mechanism by which to commence an action for recovery of damages or any debt or demand, or other money recoverable in the civil jurisdiction of the Court. Section 32 provided that such an action "shall be commenced by the entry of a complaint made in writing". This provision contrasted with the terms of s 26 which did not include any requirement that an information be in writing.
40. The 1930 Ordinance then provided for the issuing of summonses (ss 37-41) or for the issuing of warrants of arrest (ss 42-50). A summons was a process requiring the attendance of the defendant at court. It could be issued in both criminal and civil proceedings. A warrant of arrest permitted the arrest of the person so that the person could be brought before a magistrate to answer the charge. It could only be issued in relation to criminal proceedings.
41. In criminal proceedings a summons could only be issued where an information had been laid before a magistrate. It was the magistrate who then issued the summons. The terms of s 12 of the 1930 Ordinance referred not only to the magistrate issuing the summons, but also permitted "a Clerk" to receive an information and issue a summons. (Section 12 now refers to the registrar.) The content of the summons was set out in s 38 and it included a requirement that the summons "shall state shortly the matter of the information".
42. The prerequisites to the issue of a warrant of arrest were more onerous. If a warrant was to be issued in the first instance the information was required to be "in writing and on oath", although the oath could be made either by the informant or some other person: s 30. A warrant was required to be in writing: s 46 and was required to "state shortly the defence or matter of information on which it is founded": s 47.
43. The provisions of the 1930 Ordinance did not address the circumstance where a person accused of an offence was arrested and brought before the Court. Some reference was made to that situation in s 50 of the 1930 Ordinance which referred to persons taken into custody for an offence without a warrant. In such a situation the information could be laid orally in court. That would be achieved by the informant or counsel representing the informant articulating the allegation against the defendant. By that means the information was "laid before a magistrate".
44. The regime provided for by the 1930 Ordinance was similar to that which existed under the Justices Act 1902 (NSW). The jurisdiction of a magistrate to hear a charge brought under the (relevantly similar) provisions of that Act were explained by the Full Court of the Supreme Court of New South Wales in Ex parte Walker; Re Goodfellow [1944] NSWStRp 53; (1944) 45 SR (NSW) 103 (special leave refused at (1945) 69 CLR 640). In that case the defendant contended that the magistrate had no jurisdiction to hear a charge against him because there was no information before the Court and no summons had been issued. The Full Court of the Supreme Court granted a writ of mandamus directed to the magistrate and articulated a number of propositions which explain the relationship between the laying of informations and the jurisdiction of a magistrate. They can be summarised as follows.
(a) At common law it was necessary that an information should be laid before a magistrate had jurisdiction to try a person for an offence. The information need not be in writing, but might be oral: at 106. The laying of an information required that "someone should have stated to a magistrate that the person in question had committed the offence": at 106.
(b) A summons or warrant was not essential to the exercise of jurisdiction as that depended on the existence of an information. The summons or warrant was only machinery to give the accused notice of the proceedings: at 106. (See also Electronic Rentals Pty Ltd v Anderson [1971] HCA 13; (1971) 124 CLR 27 at 41, 44.)
(c) Any person who was already before a magistrate might be charged with any offence triable summarily without the necessity for a summons or warrant as long as there was an information before the magistrate: at 106-107. This principle was subject to exceptions where statutes required the issue of a summons or warrant as a condition precedent to the exercise of jurisdiction: at 107. In a case where a person was arrested without a warrant and brought before the Court "the arrest precedes the laying of the information, that is the intimation to the magistrate of the offence charged": at 108.
(d) The absence of an information or summons was not an objection to a conviction unless that objection was raised on the hearing (Justices Act s 133; 1930 Ordinance s 228). Where that was done, a proper information could be laid immediately and the accused charged thereunder: at 108.
(e) Although it was not necessary to the existence of jurisdiction that a person should know that he has been charged or the offence with which he is charged, he is entitled to an adjournment and to receive the particulars of the charge to enable him to prepare a defence: at 108.
45. Of significance for the present case is the fact that where a warrant for arrest is not issued the proceedings are commenced by the laying of information either
(a) before a magistrate in the absence of the defendant in order to have a summons issued; or
(b) in the presence of the defendant if the defendant is before the Court.
Even if this is not done, then, if no objection is made, the conviction will stand because of the operation of s 228 of the 1930 Ordinance/MC Act.
46. These provisions mean that while jurisdiction is usually attracted by the laying of aninformation, the jurisdiction of the magistrate is not dependent upon there being a summons or information so long as the person is before the Court and makes no objection. Thus issues as to the formulation of the charge so that it represents a charge known to law and issues of particulars are matters that are dealt with as part of the exercise of the jurisdiction of the magistrate and not conditions precedent to the exercise of that jurisdiction.
47. There are authorities which state that a magistrate does not have jurisdiction to hear a charge which is not known to law, for example, the statement of Gallop J in Lillyman v Pinkerton [1982] FCA 279; (1982) 45 ALR 543 at 548 (Lillyman). While prohibition may issue to restrain a magistrate from proceeding to hear a charge which is not known to law, it is important to recognise that this does not result from the fact that the magistrate never had jurisdiction. Rather the magistrate had jurisdiction in relation to the case, including jurisdiction to address questions relating to the formulation of the charge. However, at the point where the magistrate determines to proceed to a hearing of a charge, prohibition may issue if the charge is not one known to law because at that point the magistrate is exceeding his or her jurisdiction and hence committing a jurisdictional error.
What is the effect of s 27 of the Magistrates Court Act?
48. The issue of the manner in which a charge must be formulated has been a controversial one and is controversial in this case.
49. For historical reasons, which I will describe below, the requirements for a valid charge and conviction at common law were strict. They led to an undesirable level of technicality in the formulation of charges and the recording of convictions. The response to this was a series of Acts in the 19th century which included the Summary Jurisdiction Act 1848 (UK) and the Summary Jurisdiction Act 1879 (UK) which introduced statutory provisions designed to avoid some of this technicality and allowed problems with the formulation of charges to be addressed in a manner that enabled courts to deal with the substance of the allegations against the accused. These statutory provisions were, with minor variations in language, picked up in statutes in the Australian States. Key provisions are those reflected in ss 27, 28 and 228 of the MC Act. These have been set out above. Of particular importance in the present case is s 27(2) which provides that the description of any offence in the words of the statute, or similar words, is "sufficient in law". One of the contentions of the plaintiff in the present case was that a provision similar to this which deals specifically with road transport offences, s 75 of the RTG Act, did not avoid the requirement to articulate in the charge the specific place where the offence was alleged to have occurred. The plaintiff placed particular reliance upon the decision in John L and Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531.
50. The historical background against which s 27 and equivalent provisions must operate is summarised by Gallop J in Lillyman at 549-550. I will return to the substance of that decision below. However, it is useful to set out the historical background relevant to the requirements for a valid charge (which in turn was an abbreviated form of the history set out in the decision of Jordan CJ in Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153):
In the fourteenth century the practice became established, when statutes were passed creating offences punishable by penalty, of investing justices of the peace with power to hear and determine charges of such offences. This involved a trial by jury before the justices according to the procedure of the common law. Sessions of justices were held quarterly for this purpose. A practice developed whereby justices were empowered by particular statutes to adjudicate summarily out of sessions and without a jury with respect to particular offences. At common law there was no right of appeal from justices exercising summary jurisdiction. Later provision was made for appeals to Quarter Sessions in particular cases and the Summary Jurisdiction Act 1879 (42 & 43 Vic c 49, s 19) gave a general right of appeal to Quarter Sessions.
Since the exercise of the summary jurisdiction exposed the subject to penalties imposed by lay justices without the protection of trial by jury, the Court of King's Bench exercised a vigilant supervision over this jurisdiction, not by way of appeal, but by means of the prerogative writ of certiorari. The rule that the judgment of an inferior court must show on its face that it is within its jurisdiction was rigidly applied. A summary conviction was quashed by certiorari if it did not on its face contain all such material as was necessary to enable a superior court to form a judgment as to whether the conviction was authorised by law. It was essential in order that a conviction might stand that it should set out on its face, inter alia, the information by which the charge had been laid. The offence had to be described with accuracy and with sufficient particularity to enable a superior court to see for itself whether the acts alleged were sufficient to constitute the offence (R v Sparling 1 Str. 497). An accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence (R v Wheatman 1 Doug (KB) 345; R v James Cald Mag Cas 458; Smith v Moody (1903) 1 KB 56 at 60, 63). On the other hand, the conviction would be quashed if the evidence set out in the conviction showed that there was no evidence to establish some essential ingredient of the offence charged in the information (R v Smith (1800) 8 Term Rep 588; R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 149-151). If, however, there was some evidence to support every ingredient of the offence the Court of King's Bench on certiorari would not review the conclusion of the justices as to its weight (R v Smith (1800) 8 Term Rep 588).
So strict were the requirements for the valid exercise of the summary jurisdiction that it was not difficult to pick holes in a conviction and on occasion, when the ingenuity of counsel failed, the Court of King's Bench was astute to discover defects for itself. In the result, large numbers of delinquents escaped punishment upon grounds some of which were highly technical.
Legislation which had the effect of rendering summary convictions less open to attack was passed in England in the 19th century. Included in these provisions was the Summary Jurisdiction Act 1879 (42 & 43 Vic c 49, s 39(1)) providing that before courts of summary jurisdiction the description of an offence in the words of the Act etc, or similar words, shall be sufficient in law. In Smith v. Moody however it was held that the section does not mean what it appears to say. It means only that it is sufficient to describe the offence itself but leaves it still necessary to accompany the description with particulars of the acts relied on as constituting the offence (Pointer v Cox 136 L 506). These authorities seem to be based on the view that it is essential that the accused have sufficient particulars to prepare his defence. But this object, as is pointed out by Evatt J in Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379 can be secured otherwise than by insisting upon a retrenchment of the old rule that these particulars must necessarily be given upon the face of the information itself.
51. This historical review notes the significance of the decision in Smith v Moody (1903) 1 KB 56. That case dealt with the manner in which a conviction was recorded, rather than the formulation of a charge. The headnote accurately records the conclusions of the Court of Appeal as follows:
The Summary Jurisdiction Act, 1879, s 39 sub-s 1, which provides that in proceedings before Courts of summary jurisdiction "the description of any offence in the words of the Act ... creating the offence, or in similar words, shall be sufficient in law," does not do away with the necessity of setting out in a conviction facts which are a necessary ingredient of the particular offence in question.
52. The concern of Lord Alverstone CJ appeared to be to ensure that a defendant had adequate particulars: at 60. Wills J was reluctant to interpret the statute as being intended to break down the 200-year-old rule in relation to the sufficiency of particulars in a conviction: at 61. Channell J said "I do not think the section in any way dispenses with the usual necessity of specifying time and place and matter in the way in which it has been hitherto specified". As subsequently noted this decision gave a very limited effect to the statutory reform in the equivalent of s 27(2) and largely left the previous law in place. It made no distinction between the content of a valid charge or conviction and the requirement for the supplying of particulars of that charge so as to ensure that a defendant knew the case that had to be met.
53. Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379 was an appeal from the Court of Petty Sessions of the Territory for the Seat of Government, the name of the court established under the 1930 Ordinance. Evatt J was sitting as a single judge of the High Court. Section 207 of the 1930 Ordinance provided that the High Court had jurisdiction to hear and determine appeals from all rulings, orders, convictions or determinations of the Court. His Honour was therefore hearing an appeal which would now be heard by the Supreme Court. The Supreme Court did not exist at the time of his Honour's decision as the Seat of Government Supreme Court Act 1933 (Cth) only commenced on 1 January 1934. Therefore his Honour's decision, subject to any decision of the Full Court of the High Court, conclusively stated the law in the Territory. With the current appellate arrangements for the Territory, a decision of a single judge of the High Court does not, within that hierarchy, create a binding precedent for a single judge of this Court for the reasons identified by Gummow J in Businessworld Computers Pty Ltd v Telecom (1988) 82 ALR 499 at 504 (see also Laws of Australia, [25.4.160] (at service 283)). Thus, the precedential status of the decision of Evatt J is similar to that of a decision of the Full Court of the Federal Court during the period when appeals from the Supreme Court went to that Court. In my view, this means that the decision is one which should be followed unless inconsistent with a subsequent decision of a court higher in the present appellate hierarchy.
54. Davies v Ryan illustrates that there is a clear distinction between the sufficiency of the information which commences the proceedings and a defendant's rights to particulars. The information alleged the commission of an offence (that of supplying liquor in prohibited hours except as provided in the Liquor Ordinance) using the words of the Ordinance, and, under the provisions of s 27(2), the information was held to be sufficient even though it did not specify the manner in which the Liquor Ordinance had been contravened or the name of the person to whom the liquor was supplied. Evatt J said that although the information was sufficient the defendant would undoubtedly be entitled to particulars such as the name of the person to whom the liquor was sold and the time of the sale. His Honour made specific reference to the decision in Smith v Moody and distinguished it, although the basis for doing so is not clear. It may be that his Honour distinguished it on the basis that it related to the form of the conviction rather than the form of the information.
55. In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, Smith v Moody received a mention in the judgment of Dixon J at 486. Johnson v Miller was a licencing case. A licensee committed an offence if persons were seen coming from the premises during particular hours on a Sunday. The High Court upheld the dismissal of a complaint in circumstances where the informant had refused to provide particulars of which of 30 men previously referred to in correspondence were said to have exited the premises. At 486 his Honour said:
In stating the offence, the complaint described it in the words of sec. 209 (1) of the Licensing Act without specifying or negativing the excuses, and the Justices Act 1921-1936 (secs. 55 and 56) provides expressly that such a description shall be sufficient in law. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v. Moody [1903] 1 KB at pp 61, 63; 87 LT 682 at p 685).
56. The point to note about Johnson v Miller is that the reliance upon Smith v Moody in the decision of Dixon J was in the context of a refusal to provide particulars rather than the terms of the information itself.
57. In Lillyman v Pinkerton [1982] FCA 279; (1982) 45 ALR 543 a Full Court of the Federal Court of Australia heard an appeal from this Court which was, in turn, an application to review convictions in the Court of Petty Sessions (which subsequently became the Magistrates Court). The relevant statutory provision was s 67(3) of the Companies Ordinance 1962 (ACT) which provided that where s 67(1) of the Ordinance was contravened "the company and each officer of the company who is in default is guilty of an offence". Section 67(1) prohibited financial assistance by a company in connection with the subscription in its own shares. The informations were unfortunately drafted. They alleged that the appellant had committed an offence against s 67(3) in that "he was an officer-in-default of [company name] ... which said company contrary to the provisions of section 67(1) of the said Ordinance, did give financial assistance to the [name of person] in connection with a subscription for shares made by [that person] in the said company".
58. Before Blackburn CJ, the appellant had contended that the phrase "Officer-in-default" was meaningless and hence the information was meaningless: see Lillyman v Pinkerton (1982) 63 FLR 93. Blackburn CJ rejected this argument saying (at 94) that "the insertion of hyphens is an irrational flourish which does not hinder the reader's comprehension of the meaning of the words". His Honour then went on to consider the argument that the information failed to indicate the offence with which the appellant was charged because of the failure to specify the nature of the connection between the appellant's default and the acts of the company. Notwithstanding the vagueness of the statutory provision and the potential for it to be read down, his Honour concluded that the information sufficiently provided "a description of [the] offence in the words of the Ordinance ... or in similar words ..." His Honour then examined the decisions in Davies v Ryan, Smith v Moody, Martin v Shakespeare [1920] SALawRp 12; [1920] SALR 257 and Burnett v Brown (1929) 24 Tas LR 23. His Honour said of Smith v Moody that "that case, if it is any authority on the form of informations, clearly turned on the absence of particulars". Later he said:
Smith v Moody is either an authority on the form of a formal conviction, or it is an authority on particulars and nothing more; if it does purport to say more, it cannot stand with Davies v Ryan (supra) and should not be followed.
59. He concluded that the informations were sufficient "because they sufficiently describe the offence in the words of the Ordinance or in similar words" although the appellant would have had "an overwhelming case for particulars of the allegation that he was in default".
60. On appeal Woodward and Keely JJ dismissed the appeal. Gallop J would have allowed the appeal. The difference between the majority and minority position turned on the significance of the unfortunately hyphenated "Officer-in-default". The majority described this phrase as inelegant, but not misleading or confusing. However, Gallop J reached the conclusion, in the context of the somewhat unsatisfactory statutory provision which formed the background to the case, that there was a latent ambiguity in the type of conduct for which an offender was liable to be convicted and that ambiguity was deepened by the failure to use terms consistent with the statute. He therefore would have allowed the appeal.
61. The majority judges referred to the decision in Smith v Moody and Davies v Ryan as well as the earlier decision of Blackburn CJ in Day v Rugala (1978) 20 ACTR 3. In the latter case (at 7) Blackburn CJ said "I must make it clear that the validity of the information, and whether the accused is entitled to particulars, are two different questions". So far as Davies v Ryan was concerned, the majority judges in Lillyman said that the case had "never been questioned in Australia, particularly in the distinction which it draws between the statement of the offence, which is crucial to the validity of the information, and the supply of particulars necessary for a fair trial". They concluded that as s 67(3) of the Companies Ordinance 1962 created an offence, to describe that offence in terms of the section was deemed to be sufficient by s 27(2) of the Court of Petty Sessions Ordinance 1930.
62. Gallop J, who expressly agreed with the analysis of Davies v Ryan and Smith v Moody by Blackburn CJ, described the relevant principle (at 548) as follows:
It has been decided over and over again that a person cannot be convicted on an information that does not charge an offence [authorities omitted]. A magistrate has no jurisdiction to try a person for something which is not in law and offence. Looked at in that way the question before the Supreme Court was whether the magistrate had any jurisdiction to record the convictions on before information is before him.
This statement must, in my view, be understood on the basis explained in paragraph [47] above.
63. The decision in John L upon which the plaintiff in the present case places particular reliance requires some careful examination so as to determine what it decided and, more importantly, what it did not decide. The case involved a prosecution for an offence under s 32(1) of the Consumer Protection Act 1969 (NSW). That section provided that a person who, to promote the supply of goods or services, published a statement that was "to his knowledge false or misleading in any material particular" committed an offence. Section 56(4) required proceedings to be commenced by "information". Because of this specific requirement, the majority judges held (at 514-515) that "the proceedings were incompetent unless they were commenced by information under and in compliance with the express requirement of s 56(4) of the Consumer Protection Act." The majority upheld the trial judge's conclusion that, because of the requirement in s 56(4), the legislative provisions which might have operated to cure a defect in the information were not applicable in respect of an information laid before the Supreme Court in its summary jurisdiction: at 520. In particular, s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) (Summary Jurisdiction Act) was not applicable because that provision only covered proceedings under ss 4 or 5 of that Act. Section 6 provided "no objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order". Because s 6 did not apply, it was the common law requirements which applied to the information in that case. It was in those circumstances that the Court held that the information was invalid for the reason that it failed to sufficiently identify the ingredients of the actual offence, namely, the "material particular" in which the statement published was false or misleading. It is important to note that the majority (at 519-520) expressly did not decide whether the provisions equivalent to ss 27 and 28 operated in the manner required by Smith v Moody, namely still requiring the identification in a valid information of "the essential factual ingredients of the actual offence". However, it is clear that the trial judge, Yeldham J, (Clayton v John L Pty Ltd (1984) 1 NSWLR 344 at 348) had approached the case on a basis consistent with Davies v Ryan: "It is I think plain that if the Justices Act, ss 145A [the equivalent of s 27(2) of the MC Act] and s 65 [the equivalent of s 28 of the MC Act] or some equivalent sections, did apply to the information in the present case, it would have been sufficient in law".
64. Brennan J found that s 6 of the Summary Jurisdiction Act did apply (532) and that it was "a conclusive answer to the appellant's objection" (526).
65. Toohey J reviewed the authorities which have considered Smith v Moody, including Davies v Ryan, Ex parte Lovell; Re Buckley and Johnson v Miller. His Honour ultimately adopted the approach of Evatt J in Davies v Ryan that, although the information lacked particularity and particulars would have been ordered, the information was not bad in substance. His Honour found that because the information identified the time, place and manner in which the appellant was alleged to have contravened the section consistently with Johnson v Miller at 486, it was sufficient. For that reason it was unnecessary to deal with the submission that s 6 of the Summary Jurisdiction Act did not apply to an information under s 56(4) of the Consumer Protection Act 1969 (NSW).
66. Peterson & Magistrate Soames; Ex parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291 (Peterson) was a decision of Gallop J on appeal from the Magistrates Court. The circumstances of that case were similar to those which subsequently arose in Kirk v Industrial Court (NSW), a case which I refer to in more detail below. In Peterson the relevant charge was of a breach of a provision of the Occupational Health and Safety Act 1989 (ACT). The formulation of the charge, while identifying the section and closely following its terms, alleged that the defendant had failed to "take all reasonably practicable steps to protect health and safety and welfare at work of its employees" without identifying what those reasonably practicable steps were. The argument of the prosecutor was that the failure to identify those steps in the information was a fundamental defect which could not be corrected by the provision of particulars. In rejecting the application for writ of prohibition his Honour identified (at 297-298) the potential application of a writ of prohibition to pending criminal proceedings as follows:
It is against that background that the present motion for an order of prohibition at common law has to be decided. What has generally been regarded as the leading statement of principle in relation to prohibition is found in R v Electricity Commissioners [1924] 1 KB 171 at 205:
"It is established that when a person has authority to determine questions affecting the rights of subjects and, having the duty to act judicially, acts in excess of his legal authority, he is subject to the controlling jurisdiction exercised in the writ of prohibition."
In this case prohibition will lie against the magistrate if, and only if, he has acted in excess of his legal authority. It will lie against the informant if the information is void in that it fails to specify all the elements of the offence alleged or is bad for duplicity.
67. His Honour referred to the provisions of the MC Act relating to informations and amendment and articulated the jurisdictional position as follows (at 298):
It was not in issue before the magistrate that the subject information was in the proper form or that it was other than the correct way to institute the proceedings. It was argued before the magistrate that there was a legal requirement to provide within the information itself sufficient particulars to enable the defendant to understand the charge being brought against it.
Against that legislative background and the numerous authorities where the law has been stated, it is now trite law that a magistrate has no jurisdiction to convict a person except for a statutory offence and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence, in order to support a conviction for an offence it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons. The legislation does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence to that charged in the information.
If, however, the information and summons charge all ingredients of the offence, the description of the offence is sufficient in law (s 28 of the Magistrates Court Act) [probably intended to be a reference to s 27(2)]. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v Moody [1903] 1 KB 61 at 63; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J at p486).
[Footnotes included as text]
68. Of the charge in question Gallop J said (at 299):
Section 27(1) of the Occupational Health and Safety Act creates an offence. It is that offence which was charged in the subject information. It described the offence in the words of the Act creating the offence and, pursuant to s 27(2) of the Magistrates Court Act, that is sufficient law. It identified the essential factual ingredients of the actual offence. Admittedly, it did not contain sufficient particularity to enable the prosecutor to be reasonably apprised of the charge which he faced. The cases do distinguish between the requirement that the information contain sufficient particularity and the right of justices to require a prosecutor to furnish further and better particulars. The critical matter is that there be sufficient particularity.
69. His Honour recorded that counsel for the prosecutor relied heavily on the decision in John L and recorded that the magistrate had referred to the dissenting judgment of Brennan J who in turn had referred to the decision of Evatt J in Davies v Ryan. He referred to the decision of Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 that the statutory provision equivalent to s 28 of the MC Act permitted remedying any defect: "Thus, if the defect consists of insufficient particulars to allow the defendant to know the case to be met, those particulars may be supplied". His Honour ultimately concluded that the magistrate was correct in holding that, although the information was defective, the supply of particulars had cured the defects and no further action was necessary. Therefore his Honour rejected the application for an order of prohibition on this basis.
70. While one of the passages set out above appears to endorse the applicability of the decision in Smith v Moody notwithstanding the decisions in Davies v Ryan and Lillyman, his Honour found, consistently with Davies v Ryan and Lillyman, that so long as adequate particulars were in fact provided, the Court was not prevented from hearing the charge.
71. The decision in John L was applied in this Court in Cornwell v Curran [2006] ACTSC 119. The case involved an appeal against convictions on two charges of contravening the Occupational Health and Safety Act 1989 (ACT). Each of the convictions was overturned because in each case the charges failed to identify an essential factual ingredient of the offence. Crispin J referred to the decision in John L recording that the majority had found that:
the common law requirement that a valid information "must at least condescend to identifying the essential factual ingredients of the actual offence". Their Honours added that since the proceedings with which they were concerned had not been commenced by a valid information within the 12 month period required, they had been incompetent and the judge who had heard the initial appeal had been right to quash the orders appealed from. I am, of course, bound to follow this decision.
72. Applying that decision his Honour identified that each relevant charge failed to incorporate an essential factual element that was identified in the terms of the statute that created the offence. His Honour made no reference to s 27 of the MC Act or the power to amend in s 28. His Honour appeared to consider that the decision in John L was directly applicable even in circumstances where provisions such as ss 27 and 28 existed. As I have endeavoured to illustrate above, John L was not decided in that context and the existence of those provisions is significant. However, his Honour was dealing with the matter as an appeal in circumstances where any amendment to cure the defects was not possible. I consider that in the light of, in particular, s 27 the decision of his Honour should be explained by the failure of the charge to follow the terms of the statute so that it then needed to be judged by the common law requirements. It should not be taken as authority for the direct application of the common law requirements in circumstances where the formulation of the charge follows the terms of the statutory provision alleged to have been contravened.
73. In Kirk v Industrial Court (NSW) the judgment of the plurality makes reference to the relationship between a provision similar to s 27 and the decision in Smith v Moody as follows (at [29]):
Section 11 of the Criminal Procedure Act 1986 (NSW) provided that the description of any offence in the words of an Act creating the offence "is sufficient in law". In Smith v Moody [1903] 1 KB 56, it was held that such a provision did not dispense with the common law rule (at 60 per Lord Alverstone CJ; and see at 61 per Wills J; at 63 per Channell J). In Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153, Jordan CJ doubted that earlier authorities such as Smith v Moody should be regarded as binding and that the object of the rule could be secured only by the requirement of particulars on the face of the information. Nevertheless, in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486, Dixon J appears to have applied the common law rule and to have held that a statutory provision like that made by s 11 of the Criminal Procedure Act 1986 "relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions".
[Footnotes included as text].
74. The decision in Davies v Ryan was not referred to in the judgment.
75. The subsequent paragraph of the reasons ([30]) stated that it was not necessary to consider the application of s 6 of the Summary Jurisdiction Act. Hence what was said above was clearly obiter dicta and was not intended to resolve the issue. Consistently with the approach taken in Davies v Ryan, paragraph 30 of the plurality judgment in Kirk v Industrial Court (NSW) says that "the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges".
76. This review of the authorities illustrates that Davies v Ryan has been accepted in this Court and on appeal in the Full Court of the Federal Court, while Smith v Moody has been distinguished or not followed. No decision of a Full Court of the High Court has overruled Davies v Ryan, no decision of the ACT Court of Appeal has held that Davies v Ryan or Lillyman should not be followed. In those circumstances Davies v Ryan should be followed in preference to Smith v Moody. This means that the description of an offence in an information is sufficient in law if it adopts the words of the statute creating the offence or similar words. Any requirement for further particulars may be necessitated by the rules of procedural fairness, but the absence of those particulars from the information itself does not render the charge a defective one. John L is not to the contrary of this approach because it was a decision which applied the common law and did not involve circumstances where statutory provisions the equivalent of ss 27(2) or 28 applied.
Does the Magistrates Court lack jurisdiction because the information failed to specify "the length of road where the driver is driving"?
77. While noting the distinction between the summons and the information which led to it being issued, I proceed on the basis that the information alleges that the plaintiff committed the offence described in the terms set out in the summons.
78. As at 25 March 2014, r 20 of the Australian Road Rules provided:
20 Obeying the speed-limit
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
Offence provision.
Note 1 The rules about speed-limits are as follows:
rule 21 - speed-limit where a speed-limit sign applies
rule 22 - speed-limit in a speed-limited area
rule 23 - speed-limit in a school zone
rule 24 - speed-limit in a shared zone
rule 25 - speed-limit elsewhere.
Note 2 Road includes a road-related area - see rule 11 (2).
Note 3 Length of road includes a marked lane, a part of a marked lane, or another part of a length of road - see the definition in the dictionary.
Note 4 Part 20, Division 2 deals with the way in which a traffic sign applies to a length of road. Part 20, Division 3 deals with the way in which the traffic sign applies to drivers driving on the length of road.
79. Length of road is defined in the Dictionary to the Rules as:
length, of road, includes:
(a) a marked lane or a part of a marked lane; and
(b) another part of a length of road.
Note Marked lane is defined in this dictionary.
75 Short descriptions of offences
(1) An offence against the road transport legislation is sufficiently stated or described in an information, summons, subpoena, warrant, notice, order or other document, if it is stated or described using -
(a) the short description prescribed by regulation for the offence; or
(b) an expression substantially the same as the short description.
(2) This section does not affect any other way of stating or describing an offence.
81. Section 17 and sch 1 pt 1.2 of the Road Transport (Offences) Regulation 2005 provided in item 1.2 in relation to a breach of r 20 involving a non-school zone where the driver was driving greater than 15km/h, but less than or equal to 30km/h faster than the speed limit, the following short description:
non-school zone exceed speed limit by > 15 but ≤ 30 km/h
82. The speeding charge set out in the summons for charge CC 2014/5882 provided
THAT HE IN THE AUSTRALIAN CAPITAL TERRITORY ON 25 MARCH, 2014 IN A NONSCHOOL ZONE, DID EXCEED THE SPEED LIMIT BY GREATER THAN 15 KM/H BUT EQUAL TO OR LESS THAN 30 KM/H.
83. The words that correspond to the short description have been highlighted. They are clearly "an expression substantially the same as the short description" for the purposes of s 75. The only other elements of the formulated charge identify the date and the location, namely, the Australian Capital Territory.
84. By operation of s 75 the offence "is sufficiently stated or described in an information".
85. The plaintiff's contention is that identification of "the length of road where the driver is driving" i must be included in the charge.
86. In the light of my explanation of the decision in John L at [63] above, I do not accept the plaintiff's submission that the decision in that case requires identification of the road where the offence is alleged to have occurred. That is because s 75 provides that the description of the offence may be as set out in the regulations, removing it from the common law requirements dealt with in John L. The terms of s 75 are sufficiently similar to those of s 27 to make the reasoning in Davies v Ryan applicable. Having regard to that decision, any requirement for particulars does not go to the validity of the information. It is clear that those particulars have in fact been provided and there is therefore no basis for an order prohibiting the magistrate from proceeding with the charge.
87. I do not need to consider for the purposes of this case whether the information would be one sufficient to enliven the jurisdiction of the Magistrates Court if it did not include either the date or the reference to the offence having occurred in the Australian Capital Territory as both of these matters were identified in the summons.
Does the Magistrates Court lack jurisdiction because the information and/or summons has not been sworn, signed and dated by the informant?
88. As pointed out above, there is a distinction between the information which commences the proceedings and the summons which gets a defendant who is not before the Court to attend court for the purpose of proceedings. Even if the summons was not properly signed or dated, any invalidity of the summons would not affect the jurisdiction of the Court in circumstances where Mr Burridge was in fact before the Court and put on notice of the terms of the charge. Therefore the Chief Magistrate was correct in saying "What does it matter, you're here" (Transcript, 23 April 2015, p 20).
89. The summons refers to the antecedent fact of the information having been sworn on that day before the Deputy Registrar. The information did not need to be sworn (MC Act s 30(3)), but that fact is of no consequence. I do not accept the plaintiff's submission that s 30(3) requires the information to be in writing if on oath. That is only a requirement if a warrant is to be issued in the first instance: s 30(1). Section 30(3) describes two aspects of the information which involve less formality. There is, in my view, no reason not to read the subsection in a permissive sense, namely, that the information may be made orally and it may also be made without oath.
90. The fact that the information was sworn was an antecedent fact and not something which needed to appear on the face of the document. Section 40 of the Legislation Act 2001 (ACT) provides that unless the contrary is proved, it is presumed that all conditions and steps required for the making of a statutory instrument have been satisfied and carried out. A summons is a statutory instrument because it is an instrument made under the MC Act: Legislation Act s 13. There was evidence in the form of a statement from the informant that the information was sworn before the Deputy Registrar. Put in a manner more consistent with his onus in these proceedings and the terms of s 40, the plaintiff has not proved the contrary.
91. The fact that the information was not signed by the informant, but instead simply had his name and badge number printed upon it may be a defect. Section 8 of the Court Procedures Act 2004 (ACT) permits the rule-making committee to approve forms for each use in relation to ACT courts: s 8(1). If a form is approved for a particular purpose then it must be used for that purpose: s 8(2). Section 255 of the Legislation Act applies if an Act authorises or requires a form to be approved: s 255(1). While substantial compliance with a form is sufficient (s 255(4)), if a form requires it to be signed then the form is properly completed only if that requirement is complied with: s 255(5). Section 255 is a determinative provision within the meaning of the Legislation Act and hence may only be displaced by "manifest contrary intent": s 255(9). At the relevant time there was an approved form: AF 2012-123. It was a form for an "information and summons" and separately provided for the information and the summons. The information was recorded in writing on the form rather than merely being referred to as an antecedent fact. It required the informant to sign the form. However, the approval statement of the rule-making committee did not make it clear whether the form was to apply in relation to all summonses or only to those where the information was required to be in writing. Under s 30 of the MC Act, there is no requirement that the information be written and hence a form which proceeded on the basis that it was to be written may not be applicable. There was no explanation as to why the approved form was not used in the present case or why the form that was used contained the very antiquated language that it did. Having regard to the fact that in the present case Mr Burridge in fact appeared before the Chief Magistrate, it is not appropriate that I express a concluded opinion upon whether, by reason of the approval of form AF 2012-123, informations which were permitted to be laid orally were required to be laid in writing using the approved form.
92. The other argument put by the plaintiff was that the informant's signature upon the summons was the equivalent of the signature of an authorised person upon an indictment without which the proceedings were a nullity. This was based upon the decision of the New South Wales Court of Appeal in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 (Janceski). Leaving aside the question of the approved form, there is no requirement that the information be in writing. Rather s 30(3) requires that if a summons is to be issued in the first instance the information may be made orally and without oath. In those circumstances the informant's signature upon a summons could not be a pre-requisite to the exercise of jurisdiction by the Court in the same way that the signature of an authorised person upon an indictment was found to be in Janceski.
Does the Magistrates Court lack jurisdiction because the summons has been signed by an unidentified deputy registrar?
93. The plaintiff contended that the summons was defective because the deputy registrar whose signature appeared on the summons was not identified on that document.
94. Section 12 of the MC Act is set out above. The Dictionary to the Act provides that "registrar" includes a deputy-registrar of the Court. Therefore s 12 authorises a deputy-registrar to receive an information and issue a summons or warrant on an information.
95. Although the signature on the summons was illegible and there was no stamp or other indication as to the identity of the Deputy Registrar, the evidence established that the Deputy Registrar who signed the summons was Gay Turner. It also established that she had been appointed as deputy-registrar by the Registrar of the Court pursuant to s 10M of the MC Act on 16 June 2003. As at that date s 10M(2) gave to the Registrar power to "appoint such deputy registrars of the court, bailiffs and other officers as are required". That provision was subsequently repealed. The plaintiff submitted that, as a consequence, Ms Turner had no power to issue the summons. Because Mr Burridge appeared in any event, any invalidity of the summons would be of no consequence. However, the submission made by the plaintiff is not correct because:
(a) Section 10M was omitted by the Statute Law Amendment Act 2005 (ACT) with effect from 2 June 2005 which also inserted a new s 9. As at 13 June 2014 s 9(2) of the MC Act provided:
(2) The registrar may appoint the deputy registrars of the court, bailiffs and other officers that are required.
(b) Section 94 of the Legislation Act provided that where a law that authorised the making of an appointment was amended and under that amended law an appointment may be made then an "appointment, ... that was in force immediately before the commencement of the amendment continues to have effect as if it had been made, issued or done (however described) under the amended law". "Amend" is defined to include, omit and re-enact in the same law (with or without changes).
96. Because of the operation of s 94 the appointment of Ms Turner as Deputy Registrar continued in operation until the 13 June 2014 when she issued the summons.
Does the Magistrates Court lack jurisdiction because the informant has not been validly delegated power to lay the information?
97. The provisions of the RTG Act referred to in this ground are as follows.
53 Procedure if liability disputed
(1) This section applies if a person disputes liability for an infringement notice offence by giving the administering authority a notice in accordance with section 51 (Disputing liability for infringement notice offence).
(2) The administering authority may -
...
(b) in any other case - lay an information in the Magistrates Court against the person for the offence within 60 days after being given the notice.
...
54 Delegation of administering authority's functions
(1) The administering authority for an infringement notice offence may delegate the authority's functions under this part to -
(a) the road transport authority; or
(b) a person prescribed by regulation; or
(c) a person who is an authorised person under section 19; or
(d) an authorised officer under the Heavy Vehicle National Law (ACT).
Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
(2) A person mentioned in subsection (1) (a) or (b) may delegate functions delegated to the person under subsection (1) to anyone else.
98. The point raised by the plaintiff appeared to be that the information failed to identify how the informant became the administering authority for the purposes of s 53(2). That is significant because it is only the administering authority that is permitted to lay an information.
99. Because s 40 of the Legislation Act is limited to statutory instruments, it does not apply to an oral information because an "instrument" is "any writing or other document": Legislation Act s 14.
administering authority, for an infringement notice offence, means the entity that, under the regulations, is the administering authority for the offence.
101. Section 8 of the Road Transport (Offences) Regulation 2005 (ACT) provided:
8 Administering authority - Act, dict, def administering authority
(1) The road transport authority is the administering authority for the following infringement notice offences:
[certain offences which do not include a contravention of rule 20 of the Australian Road Rules are set out]
(2) The chief police officer is the administering authority for any other infringement notice offence.
(3) The Regulator under the Heavy Vehicle National Law (ACT) is the administering authority for heavy vehicle infringement notice offences.
...
infringement notice offence means an offence prescribed by regulation as an infringement notice offence.
5 Infringement notice offences - Act, dict, def infringement notice offence
An infringement notice offence is an offence mentioned in schedule 1 for which an infringement penalty is provided in column 5 of the item applying to the offence.
104. Schedule 1 provided an infringement penalty for a contravention of r 20 of the Australian Road Rules in the same place as it provided the short description of the offence. As a consequence the Chief Police Officer was the administering authority for the contravention of r 20 of the Australian Road Rules.
105. The Road Transport (General) Chief Police Officer Delegation 2006 (No 2), which remained in force until revoked in 2015, delegated the functions of the Chief Police Officer under, inter alia, s 53 of the RTG Act to persons holding certain positions in the Prosecution and Judicial Support "Business Area" of the Australian Federal Police. The positions were the superintendent, Operations Manager, Team Leader Brief Management, Team Leader Traffic Representations and Projects Officer. The position numbers were set out. Section 185 of the Legislation Act provides that a reference to the occupant of a position (however expressed) includes a reference to anyone for the time being occupying the position.
106. There is some evidence that the informant, Mr McCue, was occupying one of the positions referred to in the instrument of delegation. A statement of the informant, annexed to the affidavit of Diana Likeman dated 17 September 2015, provided that he was "fulfilling the role of Delegate of the Chief Police Officer in relation to traffic infringements". That evidence is clearly an unsatisfactory means of proving a delegation to the informant. However, the onus in these proceedings is on the plaintiff to prove his case and he has not established any want of authority on the part of Mr McCue.
107. In reaching this conclusion I have not accepted the submission made by the plaintiff that the delegated authority "must be duly evident at the occasion of the exercise of authority to establish its validity". That proposition is not supported by the decision of Brennan J in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86.
Does the Magistrates Court lack jurisdiction because the summons was not validly served?
108. The plaintiff appeared to contend that service of the summons could only be effected in the manner required by s 116B of the MC Act and hence that he was not validly served. Mr Burridge in fact appeared in Court in response to the charge and, as a consequence, any defect in relation to the service of the summons is of no consequence.
109. However, in any event, his contention was incorrect. While a contravention of r 20 of the Australian Road Rules is a prescribed offence within the meaning of s 116A, the procedure contemplated by s 116B is not a mandatory one. That is made clear by the word "may" in s 116B(1). Part 3.7 of the Act clearly contains facultative provisions. The evidence shows that Mr Burridge was, in fact, personally served with the summons. He was not served pursuant to pt 3.7 of the Act. I am not satisfied that the requirements of s 116B were mandatory requirements in relation to the charges that he was facing.
Does the Magistrates Court lack jurisdiction because the prosecutor provided particulars of the charge orally in response to a request by the Court?
110. As pointed out above, it was not essential that particulars of the length of road be provided in the charge itself. Particulars were provided orally. There is no reason why in the circumstances of the present case that was not adequate. As pointed out in Knaggs v Director of Public Prosecutions [2007] NSWCA 83 at [67]- [82], the capacity to direct the provision of particulars is an implied power of a court exercising summary jurisdiction. The exercise of that power consistent with the explanation given above of what is necessary to be contained in the information and what may supplied outside the information itself. Mr Burridge could not have been in any reasonable doubt as to the charge that he was facing and had sufficient information to prepare his defence.
111. The plaintiff contended that it was not open to the prosecution to provide particulars because particulars had to be provided prior to a plea being entered and he had already entered a plea. While a plea may not be required prior to the provision of any necessary particulars, the entry of a plea prior to the provision of particulars does not prevent them being provided subsequently. Thus the fact that Mr Burridge had chosen to enter a plea at an early stage did not preclude the particularisation of the location where the alleged speeding occurred.
112. Although not clearly raised on the grounds of the application, the defendant contended that there was a defect in the manner in which the case was particularised because the statement of facts prepared by the informant and the letter under s 60 of RTG Act referred to the offending conduct having occurred on "Thursday, 25 March 2014". 25 March 2014 was, in fact, a Tuesday. Having regard to the statement of the terms of the information in the summons (which allege that the offence occurred on 25 March 2014), this error would not give rise to any real difficulty on the defendant's part and the error certainly provides no basis for prohibiting the further conduct of the prosecution.
113. Each of the issues raised by the grounds of the application for prohibition are resolved adversely to the plaintiff. There is no basis upon which an order to the effect of a writ of prohibition should issue. Therefore the application must be dismissed. I will make an order to the effect that costs follow the event, but give the parties leave to be further heard on that point if necessary.
2. The plaintiff is to pay the defendants' costs of the proceedings.
3. Order 2 does not take effect for a period of 14 days and if, within that period, either party notifies the Registrar in writing that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.
Burridge
Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332
(1993) 32 NSWLR 501
(1988) 82 ALR 499
(1984) 1 NSWLR 344
(1933) 50 CLR 379
(1971) 124 CLR 27
(1987) 163 CLR 508
(2010) 239 CLR 531
(1982) 45 ALR 543
(1982) 63 FLR 93
(1998) 84 FCR 348
(2005) 64 NSWLR 10
(1945) 69 CLR 640
(1937) 59 CLR 467