Director of Public Prosecutions v Cakici and Anor

Supreme Court of NSW|2006-05-05|Before: Johnson J

CITATION : Director of Public Prosecutions v Cakici and Anor [2006] NSWSC 454

DECISION : 1. Declaration that the Second Defendant erred in law as to the proper construction and application of the provisions of clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003.; 2. First Defendant ordered to pay the Plaintiff's costs of the proceedings, but a certificate is granted to the First Defendant under s.6 Suitors' Fund Act 1951.

CATCHWORDS : CRIMINAL LAW - Local Court practice and procedure - requirements for valid court attendance notice - endorsement of service of notice - whether endorsement of service must include place of service - held that endorsement need not state place of service - appropriate order where Magistrate makes finding of no jurisdiction

Crimes (Local Courts Appeal and Review) Act 2001 Director of Public Prosecutions Act 1986 Road Transport (Driver Licensing) Act 1998 LEGISLATION CITED : Justices Act 1902 Criminal Procedure Act 1986 Suitors' Fund Act 1951 Local Courts (Criminal and Applications Procedure) Rule 2003

Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 Director of Public Prosecutions v Goben [1999] NSWSC 696 CASES CITED : Roads and Traffic Authority v Wood (2005) 63 NSWLR 596 Sharman v Director of Public Prosecutions [2006] NSWSC 135 Barns v Edwards (1993) 31 NSWLR 714 Director of Public Prosecutions v Belani [2005] NSWSC 1013

Director of Public Prosecutions (Plaintiff) PARTIES : Sinan Cakici (First Defendant) His Honour William Pierce, Magistrate (Second Defendant)

COUNSEL : Mr H Dhanji (Plaintiff) Mr S Cakici (in person)

SOLICITORS : SC Kavanagh, Solicitor for Public Prosecutions (Plaintiff)

LOWER COURT JUDICIAL OFFICER : Magistrate William Pierce

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J

5 May 2006 15981/05 Director of Public Prosecutions v Sinan Cakici and Anor Judgment 1 JOHNSON J: This is an appeal under s.56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 ("Appeal and Review Act") by the Plaintiff, the Director of Public Prosecutions, with respect to proceedings that came before Magistrate William Pierce, the Second Defendant, at the Burwood Local Court on 14 October 2005. 2 The proceedings involved a charge of unlicensed driving against the First Defendant, Sinan Cakici. On 14 October 2005, the Second Defendant dismissed the charge.

The Present Appeal 3 An appeal to this Court by a prosecutor under s.56 is confined to grounds involving a question of law alone: Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 at paragraph 58ff. This appeal does raise such a question. 4 The Second Defendant, in accordance with usual practice, has submitted to any order of the Court except costs. The First Defendant has appeared in person and unrepresented both on 1 May 2006 when the matter was first before me, and today when the matter proceeded to hearing. 5 The proceedings in the Local Court were prosecuted by a police officer. In accordance with usual practice, the Director of Public Prosecutions has taken over the proceedings for the purposes of ss.9 and 10 of the Director of Public Prosecutions Act 1986. 6 When the matter was called on for hearing this morning, Mr Dhanji, counsel for the Plaintiff, stated that the relief being sought in the Summons is now confined to certain orders only. An order under s.59(2) of the Appeal and Review Act setting aside the order of the Second Defendant is no longer sought. Nor is an order now sought that the matter be remitted to the Burwood Local Court to be heard and determined according to law. 7 The Plaintiff seeks an order in accordance with paragraph 2 of the Summons, namely, a declaration that the Magistrate erred in law as to the proper construction and application of the provisions of clause 37 Local Courts (Criminal and Applications Procedure) Rule 2003. The Plaintiff submits that it is important for this issue to be determined as Mr Dhanji submits that the fundamental question of procedure raised in this case is one which has caused the erroneous dismissal of other proceedings in the Local Court because of a perceived deficiency in the initiating process which was said to go to jurisdiction. 8 I accept that the issue raised by this Summons is of general importance and that it is appropriate to proceed to determine the matter, although it is not a determination which will have any adverse effect upon the First Defendant in the sense that he will again be placed in jeopardy with respect to the charge.

The Alleged Offence 9 The factual background to the present matter can be stated shortly. 10 It is alleged that at 6.10 pm on 24 June 2005, the First Defendant drove a vehicle on a public street at Bankstown without being licensed for that purpose, the First Defendant being a person who had never been licensed and who was not exempted by the Regulations from being licensed. This is an offence under s.25(2) Road Transport (Driver Licensing) Act 1998.

The Local Court Proceedings 11 A Court Attendance Notice ("CAN") was issued and served on the First Defendant. He appeared at Burwood Local Court on the return date, 15 July 2005, before Magistrate Still. The First Defendant was unrepresented and entered a plea of guilty to the charge. 12 According to the transcript of proceedings on that day, which is in evidence before me, there was some short discussion between the presiding Magistrate and the First Defendant in which the First Defendant indicated that he had a number of fines outstanding exceeding the sum of $1,000.00. His Honour indicated that he would give the First Defendant an opportunity to make arrangements with the State Debt Recovery Office to pay the fines and, if that course was taken, it would assist the First Defendant on the question of penalty. 13 The First Defendant sought an adjournment to allow this to be done and the proceedings were adjourned to 14 October 2005 before the Burwood Local Court. 14 The bench sheet for 15 July 2005 confirms that the First Defendant entered a plea of guilty to the charge and bears a notation "SDG". It is apparent from procedural documents in evidence before me, that those letters were recorded by Magistrate Still and were shorthand for "Standard Directions Given". This was a reference to a document which is also in evidence before me. It appears that Magistrate Still adopted the practice with respect to this class of offence whereby, if an adjournment is granted following a plea of guilty, a document is given to the defendant indicating the things that were to be done (or not done) by him or her during the adjournment. In this case, the relevant document indicated that the First Defendant was to pay fines or obtain clearance from the State Debt Recovery Office and to get a valid licence and bring it to the Court on the adjourned date. The document emphasised that the First Defendant was not to drive without a licence. 15 The document noted, no doubt to emphasise the importance of these steps, that if the First Defendant took this action, then he would be dealt with leniently. 16 On 14 October 2005, the matter came before Magistrate Pierce at Burwood Local Court. The First Defendant did not appear on this occasion. The First Defendant told me, and I accept, that there was a misunderstanding as to the date and he was at work on that day. He has emphasised that he did not ignore the proceedings or fail to attend on that day because of a lack of interest in the proceedings. I accept this explanation. The First Defendant has demonstrated by his two appearances before this Court (in circumstances where he was not obliged to attend) that he has taken a serious view of these proceedings. He has sought to emphasise that he is attempting to do all he can to comply with his obligations with respect to the driver licensing laws. Mr Dhanji informed the Court that it was, in part at least, because of the First Defendant's serious approach to these proceedings that the Plaintiff determined not to seek remittal of the matter to the Local Court. 17 I return to the events of 14 October 2005. The Second Defendant noticed the letters "SDG" on the bench sheet. From the transcript, his Honour appears to have formed the view that these letters stood, in some way, for the concept "Summons Defective". Of course, it is apparent on the evidence before me that the letters bore no such meaning. His Honour noted that the proceedings had been stood over from 15 July 2005 to 14 October 2005. His Honour surmised that this adjournment was to remedy what his Honour considered was a defect in the service of the CAN. Once again, it is clear on the evidence before me that this was not the purpose of the adjournment. 18 It is not clear how his Honour came to form these views. There is no sign in the papers, including the bench sheet, that such an issue had been raised on 15 July 2005. On that day, the First Defendant had appeared and pleaded guilty. The bench sheet recorded this fact. Clearly, the First Defendant had been served and he made no complaint of a jurisdictional nature about the matter. Nor did his Honour, Magistrate Still, have any concern in that regard. 19 The Prosecutor appearing before the Second Defendant on 14 October 2005 drew to the Court's attention the fact that the matter was in for sentence and had been stood over to allow the First Defendant to pay fines. This was an entirely accurate statement of what had happened. 20 His Honour, however, took the view that the CAN was defective and dismissed the proceedings. The basis for this view was a notation on the CAN to the following effect: "SERVICE DETAILS:

I have served on ACCUSED/DEFENDANT a copy of this court attendance notice in PERSON at 6.20pm on 24/06/2005 at WITNESSED by ACCUSED. Sen Con MELANIE FLOREY (30548) Bankstown."

21 The Second Defendant considered that the failure in the CAN to indicate a place of service was fatal both in respect to service and, apparently, to the jurisdiction of the Local Court.

Relevant Statutory Provisions 22 It is necessary to turn to the relevant statutory provisions governing these procedural issues. 23 Before the repeal in 2003 of the Justices Act 1902, the jurisdiction of the Local Court with respect to criminal proceedings flowed from the laying of an information. The service of a summons following the issue of the information, or the question of service generally, was unrelated to the issue of jurisdiction: Director of Public Prosecutions v Goben [1999] NSWSC 696 at paragraphs 16-24; Roads and Traffic Authority v Wood (2005) 63 NSWLR 596 at 600 (paragraphs 25-26) and Sharman v Director of Public Prosecutions [2006] NSWSC 135 at paragraphs 26 and 38. 24 In July 2003, the Justices Act 1902 was repealed and the statutory scheme for procedures in criminal prosecutions in the Local Court were included in the Criminal Procedure Act 1986. It is those provisions which are presently relevant. In Sharman, Bell J observed that the investing of the jurisdiction in the Local Court with respect to criminal proceedings commenced by CAN was governed by reference to ss.177 and 178 Criminal Procedure Act 1986, taken with a number of rules within the Local Courts (Criminal and Applications Procedure) Rule 2003. 25 Section 172(1) Criminal Procedure Act 1986 provides as follows: "172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division." 26 Sections 177 and 178 state: "177 Service of court attendance notices

(1) A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules. (2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person of a class prescribed by the rules, in accordance with the rules.

(3) A copy of a court attendance notice issued by a person other than a police officer or a public officer must be served by a person of a class prescribed by the rules in accordance with the rules.

(4) A copy of a court attendance notice must, except with the leave of a Magistrate or a registrar of the court, be filed in a court not later than 7 days after it is served and must contain an endorsement as to service.

(5) Leave may be granted under subsection (4) after the expiry of the 7-day period referred to in that subsection. 178 When proceedings commence

(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.

(2) A court attendance notice may be filed even though it has not been served if:

(a) a warrant is sought under this Part for the arrest of the accused person, or (b) the notice is not able to be served, despite reasonable attempts to do so, or (c) the registrar gives leave to do so after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice. (3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date." 27 Clause 18 Local Courts (Criminal and Applications Procedure) Rule 2003 relates to the service of CANs in summary proceedings. The rule provides for a number of methods of service which may be utilised. For present purposes, it is sufficient to note that service of a CAN includes the handing of a notice to the accused person: clause 18(2)(a). 28 Clause 37 Local Courts (Criminal and Applications Procedure) Rule 2003 provides for proof of service. Clause 37 relevantly provides: 37 Proof of service

(1) A person who serves a document issued in proceedings must complete an endorsement as to service on a copy of the document served.

(2) The endorsement must include the following matters: (a) the date service was effected, (b) the method of service, (c) the name, address and occupation of the person serving the document, (d) if the document was served personally, the person to whom it was delivered, (e) if the document was served by post, the manner in which the person was informed of the address to which it was posted and the time and place of posting, (f) if the document was served by facsimile, the manner in which the person was informed of the address to which it was sent and the date on which advice confirming successful transmission of the document was received (g) if the document was served by electronic communication (other than facsimile), the manner in which the person was informed of the email address to which it was sent and the date it entered the information system addressed to the person's email address. (3) The endorsement must be signed by the person serving the document and a witness to the signature. (4) In the case of a document served by a police officer, the endorsement:

(a) may be incorporated on an electronic copy of the document produced from the Police COPS system, and (b) is not required to be signed by the police officer who serves the document. …"

29 It may be noted from clause 37(2)(a) to (d) of the Rules that the endorsement which is to be included on a copy of a CAN served must include the date of service, the method of service, the name, address and occupation of the person serving and (if the document was served personally) the person to whom it was delivered. There is no requirement for endorsement of the place of service. 30 Clause 37(3) of the Rule requires that the endorsement must be signed by the person serving the document and a witness to the signature. However, clause 37(4) provides that, in a case of a document served by a police officer, the endorsement may be incorporated on an electronic copy of the document produced by the COPS system, and it is not required to be signed by the police officer who serves the document.

Is Endorsement of the Place of Service Required by Law? 31 The short point raised by the Plaintiff in this case is that the Second Defendant's view that the endorsement for service was defective because it failed to indicate the place of service was erroneous. What is required to be endorsed, as a matter of law, in the case of personal service are the matters referred to in clauses 37(2)(a) to (d) of the Rule. The CAN complied with those requirements. Since a police officer served the CAN, the provisions of clause 37(4) of the Rule were applicable. Accordingly, the Plaintiff submits that there was no defect at all. I accept this submission. 32 The fact that the endorsement on the CAN itself includes the word "at" (followed here by the words "WITNESSED BY ACCUSED") might suggest that the place of service was to be inserted in the document. However, neither the Act nor the Rules require this to be done where there is personal service upon the accused person. Accordingly, the Second Defendant's view was erroneous and the CAN and the proceedings ought to have been be left on foot. 33 A clear error of law has been demonstrated in this case in his Honour's conclusion that the failure to specify the place of service in the CAN was fatal to the proceedings.

A Further Error in Dismissing the Charge 34 In circumstances where the Second Defendant formed the view that there was a fatal defect in the process resulting in effect, in the Court lacking jurisdiction, the Plaintiff submits, in any event, that the order should not have included dismissal of the charge. The papers ought to have been marked "No jurisdiction". 35 Section 202(1) and (2) Criminal Procedure Act 1986 provides that the Local Court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with the Act, and that the Court may determine the matter by convicting the accused person or making an order as to the accused person or by dismissing the matter. Section 208 provides for withdrawal of a matter by the prosecution. The Plaintiff submits that the Second Defendant fell into further error by dismissing the matter where there had not been a hearing in accordance with s.202 Criminal Procedure Act 1986. It is submitted that the appropriate order, in circumstances where there is a finding of no jurisdiction, is the marking of the papers to that effect. 36 There is authority for this approach with respect to the repealed Justices Act 1902: Barns v Edwards (1993) 31 NSWLR 714 at 720; and Goben at paragraph 37 and following. In Sharman at paragraph 44, Bell J considered that the principle in Barns v Edwards was applicable where there was a finding of no jurisdiction with respect to a CAN for the purposes of the Criminal Procedure Act 1986. 37 I accept the submission of the Plaintiff in this respect. In my view, the provisions contained in s.202 Criminal Procedure Act 1986 do not materially alter the position which applied concerning s.80 of the repealed Justices Act 1902. I note that the practical context in which this issue was sometimes litigated in earlier cases, such as Goben, related to the power of the Local Court to order costs against a prosecutor in summary proceedings. In Goben, at paragraph 51, it was held that such a costs order could not be made unless a valid information was dismissed. 38 Section 213(4) Criminal Procedure Act 1986 expressly overcomes that past difficulty in that it permits a Local Court to order a prosecutor in summary proceedings to pay costs if the matter is dismissed, because the matter is withdrawn or the proceedings are for any reason invalid. 39 The appropriate order in this case, in my view, if the magistrate was correct in his conclusion (which he was not), was one of "No jurisdiction".

Conclusion 40 I conclude that a clear error of law has been demonstrated on the part of the Second Defendant. The CAN was not defective with respect to the endorsement of service contained on it. Even if his Honour's conclusion with respect to service was correct, there was a further error of law in dismissing the matter. 41 The Plaintiff seeks an order for costs against the First Defendant, but submits that this is an appropriate case for the grant of a certificate under s.6 Suitors' Fund 1951. The Plaintiff has undertaken not to enforce the order for costs against the First Defendant personally in the event that the costs exceed the sum allowed under the Suitors' Fund Act 1951: cf Director of Public Prosecutions v Belani [2005] NSWSC 1013 at paragraph 69. 42 In these circumstances, I make the following orders:

(a) in accordance with paragraph 2 of the Summons, I declare that the Second Defendant erred in law as to the proper construction and application of the provisions of clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003 ;

(b) I order that the First Defendant pay the Plaintiff's costs of the proceedings, but grant to the First Defendant a certificate under s.6 Suitors' Fund Act 1951 .

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

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