Director of Public Prosecutions v Sinton

Director of Public Prosecutions v Sinton - [2001] NSWCA 179 - NSWCA 2001 case summary — Zoe

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COUNSEL : Appellant - M C Marien Respondent - J W Shaw QC SOLICITORS : Appellant - S E O'Connor Respondent - Walter Madden Jenkins CATCHWORDS : PROCEDURE - conferral of jurisdiction - indictable offences - related summary offences or 'back-up' charges - Part 10, Criminal Procedure Act 1986 - whether failure to produce certificate at committal deprives the trial court of jurisdiction to determine related summary offences and 'back-up' charges - PROCEDURE - right to a fair trial - exercise of judicial discretion - grant of permanent stay - whether lost opportunity and passage of time constitute a fundamental defect going to root of the trial - STATUTORY INTERPRETATION - object and purpose - construction of language - JURISDICTION - conferral of Local court jurisdiction to trial court - procedure for conferral of jurisdiction - whether handing up of a certificate detailing related summary offences and 'back-up' charges constitutes a procedural pre-condition for conferral of jurisdiction - CRIMINAL LAW - driving in a manner dangerous occasioning death/grievous bodily harm - Crimes Act 1900 - related summary offence of negligent driving - D Crimes Act 1900 Traffic Act 1909 LEGISLATION CITED : Criminal Procedure Act 1986 Criminal Procedure Legislation (Amendment) Act 1990 Crimes Legislation Amendment Act 1997 Accident Compensation Commission v Murphy (1988) VR 444 Barton v The Queen (1980) 147 CLR 75 Brygel v Stewart-Thornton (1993) 67 A Crim R 243 Jago v District Court of NSW (1989) 168 CLR 23 CASES CITED: Project Blue Sky Inc v ABA (1998) 194 CLR 355 R v Carver [1999] NSWCCA 135 (Unreported, Court of Criminal Appeal, 11 June 1999) R v Helmling (Unreported, Court of Criminal Appeal, 11 November 1993) Tasker v Fullwood (1978) 1 NSWLR 20 The Queen v Glennon (1992) 173 CLR 592 DECISION : 1. Leave to appeal granted. 2. Appeal allowed. 3. Respondent to pay the appellant's costs of the appeal but receive a certificate under the Suitor's Fund Act 1951 if otherwise entitled. 4. The orders made by his Honour be set aside and the summons before his Honour be upheld with costs. 5. The order made by Mr Johnson LCM on 13 December 1999 permanently staying the respondent's prosecution for negligent driving be set aside. 6. The information lain against the respondent for negligent driving be remitted to the magistrate to hear and determine according to law.

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9 Part 10 was inserted into the Act by the Criminal Procedure Legislation (Amendment) Act 1990. It allows a trial court to deal with a 'related summary offence', or back-up offence, at the conclusion of a trial, subject to the consent of the defendant and the prosecution. The provisions of Part 10 clearly demonstrate that it was principally concerned with the conferral of jurisdiction with respect to summary offences upon the Supreme Court and the District Court. It was directed at achieving a more efficient use of court time, and at reducing wastage of time and inconvenience to the parties and witnesses by avoiding the need to later return to the Local Court to have a related summary offence heard and determined. 10 In the second reading speech on 24 October 1990 the Attorney-General set out the purpose of adding Part 10 to the Act. He stated: [The proposal] will allow a trial court to deal with back-up summary matters at the completion of a trial. At present these summary matters must be determined by the Local Court even where the trial judge has heard evidence which would be relevant to the summary matter. The bill will allow the trial judge, at the conclusion of the trial, to determine or dismiss any related summary offence. The consent of the defendant and the prosecution will be required before a matter can be dealt with in this manner and, should it be inappropriate for the matter to be dealt with in this way, it can be remitted to the Local Court to be disposed of in the usual manner. It is intended that summary matters which are complex or lengthy will not be dealt with in the trial court, but will instead be remitted to the Local Court for determination in the usual way. I should explain that the present procedure is that where it is patently clear that a summary matter cannot proceed because the necessary ingredients - the head charge - in the particular trial is missing and will be missing in the summary offence, the police must take it back before the Local Court for mention. The matter then either does not proceed or no evidence is offered. This is time consuming for prosecution authorities and, in some cases, for witnesses. In appropriate cases this is a means of resolving the matter. In due course it will become obvious what are appropriate matters to be referred to the Local Court to be dealt with in the usual way. (emphasis added) (Hansard Legislative Assembly 24 October 1990 at p 9160) 11 Part 10 of the Act was amended by the Crimes Legislation Amendment Act 1997, as it appeared that the 1990 provisions were being underutilised. The Minister introducing the Bill attributed the underutilisation of the provisions in part because: … it is often unclear to the trial court, and to the prosecutor, which summary matters are related to which indictable matters, and in some cases whether or not those summary matters are actually 'back-up' matters or are merely other related summary matters. Accordingly, trial courts often decline to deal with any of the summary matters, electing instead to allow a Local Court to sort them out at some later time. The consequent management and disposal of pending back-up and related summary matters takes up a significant amount of Local Court time. …

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Construction of the Act 33 The object and purpose of the relevant provisions is plain. It is to achieve a more efficient use of court time and to reduce time wastage and inconvenience to parties and witnesses in having to return to the Local Court to have a related summary offence determined. This was made abundantly clear by the second reading speech of the Attorney-General when Part 10 was introduced into the Act in 1990. 34 The objective was to save money, time and inconvenience for the court system and for the parties and witnesses. 35 However, by 1997, it had become apparent that the provisions were being under used. Back-up and related offences were still being dealt with by Local Courts and trial courts were often declining to deal with summary matters. 36 In an effort to rectify the situation the amendments introduced the requirement for the prosecutor to tender, at the time of committal in the Local Court, a certificate dealing with any back-up or related summary offence. The Minister, in the second reading speech, said that this would 'ensure that clear information is provided to the trial court as to what summary matters exist … .' 37 As I have mentioned, his Honour found that Part 10 provided and described an entire process or regime, setting forth a series of steps which must be followed. Failure of the Crown to follow this procedure could cause an accused to suffer a substantial detriment. 38 However, I am unable to accept that Part 10 provided for a complete code so as to make the requirement of the provision of a certificate to the Local Court at the time of committal absolute and lead to the deprivation of jurisdiction of the trial court. 39 There are a number of reasons why I have reached this view. First, the legislature did not, either by way of direct enactment or by way of reference to regulations, prescribe the form of the certificate or to specify who would be required to certify the accuracy of the information in the certificate. The DPP had to make up its own form of certificate. Secondly, and more importantly, the legislature failed to implement a system which required the Local Court to transmit the certificate to the trial court. 40 Neither the Act or regulation provides any guidance on these matters. Nor have any relevant rules of court been made. 41 If one of the objectives of the legislation is to provide clarity for the trial court and the parties, the lack of specificity in the statute fails fully to achieve this object. 42 His Honour found that the handing up of the certificate on committal was a procedural pre-condition to the exercise of jurisdiction by the Trial Court. I am unable to accept this construction. The prosecuting authorities are not bound by decisions made prior to committal regarding related or back-up summary offences. Under s 34A(2) summary charges can be brought after committal. There is no requirement for any certificate to be communicated to the Local or trial court if this occurs. 43 His Honour's construction also leads to an obviously unintended consequence. The legislation provides in s 35(2) that a trial judge may deal with a related or back-up summary offence 'on its own motion' or on the application of either the accused or the prosecutor, if they both consent. In any event, s 35(3) makes it clear that the trial court still retains a discretion not to hear and determine the related or back-up summary offence. 44 The interpretation favoured by his Honour would mean that, absent a certificate, a trial judge could not deal with a related or back-up summary offence, of his or her motion, or at the request of both parties. For example, it would mean that if an accused, at the conclusion of the trial, asked the judge to deal with a related summary offence with the consent of the prosecutor, the trial court could not do so. His Honour's construction would therefore defeat the purpose of the Act. 45 Further, and notwithstanding his Honour's construction, if a related or back-up summary offence was charged after committal, the trial judge would have jurisdiction to deal with it, if seen fit, or if the parties consented to the court hearing and determining the matter. Again, this highlights the inconsistencies that his Honour's construction may lead to. 46 There was an acknowledged failure on the part of the prosecutor to comply with s 34A(1)(b). The question to be asked is whether this breach results in the invalidity of any subsequent attempt to deal with the summary offence, either by the trial court at the conclusion of the trial, or subsequently by the Local Court. Given the object, scope and purpose of Part 10 of the Act, and the language used in s 34A(1), I cannot see how the failure was fatal to the process or affected the jurisdiction of either of the courts. 47 The better and most convenient construction of the provision, indeed of Part 10 as a whole, is the facilitation of the determination of related summary offences by the courts. It does not aid the clear objectives of the provision to find that a failure to tender a certificate upon committal is fatal to the whole system. Again, as I have said, his Honour's construction defeats the obvious purpose of the provisions. 48 An accused person would be aware of any related or back-up summary charge, having been served with a summons. In this case, the respondent was in court at the time of committal when the prosecutor orally informed the magistrate of the existence of the summary related charge of negligent driving. He was also legally represented at the time. It is difficult to see what more the respondent would have learned from the handing up of the certificate. 49 Importantly, it seems clear that the respondent was not prevented from seeking that the trial court deal with the summary charge at the conclusion of his trial. His legal representative before the magistrate on 13 December 1999 acknowledged that no application was made to the trial judge and that, in any event, there was a need for the prosecutor to consent. He could have added that the trial judge retained a discretion not to hear the summary charge. 50 There may be many reasons why an accused would not make an application for a related summary offence to be dealt with at the end of a trial. These would often be matters of forensic tactics. We do not know the reason why no application was made to the District Court in this case. It could have been an oversight. It could have been with knowledge of the absence of the certificate, although there is no evidence of this. It could have been the desire to make a submission to the prosecuting authorities not to proceed with the summary offence. Indeed, this is what happened here. 51 It follows from the above that, in my opinion, the respondent lost no opportunity to seek to have the matter dealt with by the trial court, notwithstanding the absence of the certificate. His right to so seek, if it be properly seen as a right, was not curtailed, and was in any event a right subject to the consent of the prosecutor and the discretion of the judge. Further, the respondent has not been shown to have been misled in any way by the absence of the certificate. 52 In my discussion I have deliberately avoided reference to the mandatory/directory classification in determining the effect of non-compliance, applying Tasker v Fullwood as approved by the High Court in Project Blue Sky. 53 Further, I do not see that the issue is affected by his Honour's construction of 'is to produce' in s 34A(1(b) as 'must', should that be correct. The same result flows from the construction which I favour.

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Permanent Stay 54 On the construction which I favour, there being no loss of opportunity by the respondent to seek to have the negligent driving charge dealt with by the trial judge, the permanent stay imposed by the magistrate must go. It cannot be said that the failure to tender the certificate was a fundamental defect going to the root of the trial so that there was nothing which could be done to relieve the unfair consequences. See Barton v The Queen and Jago v The District Court of New South Wales. The prejudice suffered by the respondent, identified by the magistrate as failing memories and increased cost and delay, is not the type of relevant prejudice assigned by the High Court in Jago. See Mason CJ at 33 - 34. 55 The instant case is quite different from Brygel v Stewart-Thornton (1993) 67 A Crim R 243, relied on by the respondent, where the error in relation to the contents of the hand-up brief to be served on the defendant was seen as one which struck at the very root of the prescribed procedures. It had significance in the overall conduct of the committal. The consequences which flowed from the failure to comply with the requirement of the statute, having regard to its scope and purpose, lead to all that followed being rendered ineffective or null and void. Accident Compensation Commission v Murphy (1988) VR 444 applied. 56 In no way can the circumstances of this case be seen as so unusual or exceptional as to justify a permanent stay. The onus on the respondent to demonstrate that the prejudice he would suffer in the event of the matter proceeding in the Local Court could render that trial unfair, was not discharged. Indeed, far from it. The fact of fading memories, and the further delay and cost, were all possibilities if the prosecutor did not consent or the trial judge declined to hear the summary matter. In my opinion, the discretion inherent in the magistrate's grant of a permanent stay clearly miscarried. 57 As observed by Bell J in R v Carver [1999] NSWCCA 135 (Unreported, Court of Criminal Appeal, 11 June 1999) circumstances will ordinarily be extreme to justify a permanent stay. See The Queen v Glennon (1992) 173 CLR 592 at 605 and 615 - 616 and Jago at 31, 60 and 76. See also Hunt CJ at CL in R v Helmling (Unreported, Court of Criminal Appeal, 11 November 1993). 58 Accordingly, leave to appeal should be granted and the appeal upheld. The orders made by his Honour should be set aside. The permanent stay ordered by the magistrate should also be set aside and the information lain against the respondent should be remitted to the magistrate to hear and determine according to law.

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