and:
"The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
29 In the present case the statutory provision in question casts obligations on the prosecuting authority. It does so in positive, affirmative and imperative terms. The section is included in a part of the Act which was amended so as to require certain things to be done, as opposed to merely permitting things to be done, as had been the situation under the 1990 enactments. By virtue of the 1997 amendments Pt 10 was made stronger, more useful and beneficial and those benefits extended not merely to the justice system operating through the courts but to an accused person. The provision was not introduced solely for the benefit of the Crown. That being so, it is not up to the Crown to renounce such benefits by a failure or refusal to fulfil the commands included in s 34A(1)(a) and 1(b). Whilst not directly applicable, the maxim quilibet potest renunciare juri pro se introducto is not without relevance. Were the provisions solely for the benefit of the Crown, the argument that it could renounce that benefit would assist the proposition that if the provision were not complied with the effect of non-compliance would not be to invalidate that which followed and was dependent upon the provision or provisions not complied with. However, as Sugerman J pointed out in James v. Ronald (1958) 75 WN (NSW) 473, where the provision is "something more than jus pro se introductum", such an approach is inappropriate since a person "cannot renounce that which has been introduced for the benefit of another (person)" (at 478); (see also Broom's Legal Maxims 10th ed (1939) p 480).
30 I have already dealt with the requirement in s 36(1) that the trial court deal with a back-up or related offence without a jury, and concluded that were such an offence to be dealt with by a jury the outcome would be void, a nullity. In one sense, s 36(1) is procedural. It prescribes the procedure for determining back-up offences or related offences by the trial court. However, the provision is also substantive in the sense that it confers upon the accused person a right to a particular form of trial. It is the end point of the regime created by Pt 10 of the Act. Should the starting point of the regime be treated in any different manner? In a sense s 34A is also procedural, but no more than is s 36(1). It is also a section which is the lead-up to the benefits or rights conferred by Pt 10 and in particular the right created to have each back-up offence in respect of an indictable offence for which the accused person has been found guilty, dismissed (s 35(1A)).
31 Section 34A is part of a legislative continuum which has the general effect of conferring rights and benefits on an accused person, as well as on the justice system. It is in effect a statutory code in which each provision has a role to play, work to do. It would be a strange construction of the Part if the end point of the process was of such a kind that non-compliance with its requirement would invalidate the outcome, but a like effect was not given to the opening steps in the same regime.
32 The reasoning of Fullagar J in Clayton v. Heffron (supra) in relation to the provisions of s 5B of the Constitution Act 1902 (NSW) is material in this context:
"A manner and form are prescribed by section 5B, and that manner and form must be observed if a valid law is to be produced. Any prescription of manner and form may be repealed or amended, but, while it stands, the process prescribed by it must be followed. That was decided Trethowan's case and I think that the whole of what is prescribed by section 5B relates to manner and form. It does not seem to me to be possible to say that some of the requirements of the section are matters of manner and form while others are not. The section describes one entire process - a series of steps, one following on another - and only the completion of the entire process can produce a valid law."
(Supra at 262)
33 In the present case, that line of reasoning is directly applicable to Pt 10 of the Act. The Part provides for and describes a regime or entire process. It sets out a series of steps, one following the other. It is only if such steps are followed that a valid end result or outcome is achieved.
34 Compliance by the Crown with s 34A(1)(a) and (1)(b) is a requirement. This is apparent both from the words of the Act itself and from the statement by the Attorney-General in his Second Reading Speech (Interpretation Act 1987 s 34(2)(e)). The legislative intent may be tested by reference to a situation in which a person is charged with an indictable offence and a summary offence, which is a back-up offence within the meaning of s 34 of the Act. If the Crown has not complied with s 34A(1), the trial court will not be in a position to fulfil the function imposed upon it by s 35(1)(a) in the event that the accused person is found guilty of the indictable offence. This could be a substantial detriment to an accused person. The requirement that the trial court "is ... to order that the charge in relation to each back-up offence be dismissed" means that an accused person is not in jeopardy of further proceeding in respect of the same facts as those involved in the indictable offence, with all the costs and other detriments that such a jeopardy would carry with it. However, absent the informing of the Magistrate and production of a relevant certificate as required by s 34A, there would be an assumption on the part of the trial court that there is no back-up offence.
35 Counsel for the DPP submitted that s 34A(1)(b) was merely a "good housekeeping" provision. As a consequence, so his argument ran, it should not be characterised as imposing any obligation on the prosecuting authority and non-compliance with it did not have any affect. However, his argument stopped short of asserting that the same was true in relation to the requirements of s 34A(1)(a). No doubt this was because of the use of the word "must" in s 34A(1)(a). However, as I have construed the Act, the use of the compound verb "is to produce" in s 34A(1)(b) has the same meaning as the use of the verb "must" in s.34A(1)a. The consequence of the argument advanced on behalf of the DPP is that s 34A(1)(b) has no real work to do. By logical extension, the same can be said in relation to the whole of s 34A(1), if the argument of the DPP is accepted. However, the adoption of a construction that leads to such a consequence is to be avoided, both in relation to s 34A(1) as a whole and s 34A(1)(b) as part of that section. Moreover, the argument in relation to s 34A(1)(b) flies in the face of the statement made by the Attorney-General in his Second Reading Speech that s 34A(1)(b) imposed a requirement on the prosecuting authority.
36 Counsel for the DPP further submitted that s 34A(1) was merely procedural and created no rights in the defendant. However, the Part itself does confer benefits on an accused person. Furthermore this argument seeks to isolate one element in the process or regime created by Pt 10 of the Act. Yet it is inappropriate to consider each sub-section in the Part in isolation. The approach of Fullagar J in Clayton v. Heffron (supra) sounds a powerful warning against adopting such an approach.
37 Finally in this context, counsel for the DPP submitted that "to hold that s 34A(1)(b) is a mandatory provision produces inconvenience and effectively defeats the purpose of Pt 10 which is to facilitate the disposal of back-up and related offences in the court of trial". This argument proceeds on the basis that it is alright for a prosecuting authority to ignore the provisions of s 34A(1)(b), probably the whole of s 34A(1). But prosecuting authorities should know and comply with statutory provisions which require them to do something. They will not be encouraged to do so if they know they can fail to do so with impunity. Whilst the failure to comply with s 34A(1)(b) in the present case is said to be a matter of oversight, cases can be envisaged in which a deliberate decision could be made not to comply with the section and thus deprive an accused person of the rights, benefits and privileges conferred by ss 35 and 36 of the Act. Furthermore, the statement of the purpose of the Part in this part of the argument is less than complete (vide supra).
38 If the propositions referred to in Tasker v. Fullwood (supra) are applied, it can, in my opinion, properly be said that on construing the statute by reference to the words of the relevant section in the context of the Part of the Act, the scope and object of the Part and the legislative intent as stated by the Attorney-General in his Second Reaching Speech, the result is that compliance with its provisions is essential; non-compliance vitiating. The nature of the provision, its place in the legislative scheme, and the effects of a non-compliance with the provisions of the relevant sections in the Part also point to the invalidating effect of non-compliance.
39 If the test propounded by the High Court in Project Blue Sky v. Australian Broadcasting Authority (supra at 390), namely:
"to ask whether it was a purpose of the legislation that an act done in breach of the provision would be invalid"