DPP v Goben [1999] NSWSC 696 | Case summary

JUDGMENT 1 HIS HONOUR: In these proceedings the Director of Public Prosecutions by an amended summons claims orders in the nature of certiorari in respect of an order made by the second defendant, a Local Court Magistrate, (who I will refer to as "the Magistrate") in Burwood Local Court on 17 August 1998 that the first defendant Mr Goben be paid costs of $17,400. Alternatively, the plaintiff claims a declaration that the costs order is void. The original plaintiff in the proceedings in this Court was a police officer, who had been the informant in the proceedings in the Local Court. After the proceedings in this Court had been commenced, the Director of Public Prosecutions took over the proceedings and was substituted as plaintiff. 2 It is necessary to summarise the course of the proceedings in the Local Court. 3 On 29 October 1997 the police officer purported to lay three informations against Mr Goben. It is convenient to use the term "information", without thereby making any assumption about the validity of any of the informations. Indeed, it was ultimately held in the Local Court, and was common ground in the proceedings in this Court, that each information was invalid. 4 In each information the offence which the informant alleged Mr Goben had committed was stated in similar terms, namely that Mr Goben between the dates alleged in the information, with intent to obtain for European Connection Classic Cars a financial advantage, being either credit from AGC to a certain amount or access to greater credit from AGC, "concurred in a statement, to wit, an AGC floorplan acquisition form which he knew to be false or misleading in a material particular". 5 It is clear that the informant intended to allege that Mr Goben had committed offences under s178BB of the Crimes Act. However, each information was defective, in that it merely alleged that Mr Goben "concurred in a statement", whereas it should have alleged, in order to be a valid information alleging an offence under s178BB, that Mr Goben concurred in making a statement or that Mr Goben concurred in publishing a statement. 6 The offences charged (assuming that the offences charged were offences under s178BB of the Crimes Act) were indictable offences but, as no election was made in accordance with Pt9A of the Criminal Procedure Act, the offences were to be dealt with summarily, as if they were summary offences. See s33D of the Criminal Procedure Act. 7 The hearing of the proceedings in the Local Court was fixed for 12 March 1998. On 12 March 1998 a police officer appeared for the informant and Mr Goben was represented by his solicitor. The terms of the three informations were read aloud by the Magistrate and Mr Goben pleaded not guilty to each charge. The police prosecutor confirmed that he wished to proceed on the informations, as they were framed. No point was taken by either the Magistrate or Mr Goben's solicitor that the informations were defective. 8 The hearing of the informations proceeded on 12 March, 19 May and 30 June. On 30 June 1998, after the prosecution case had been closed, Mr Goben's solicitor submitted, for the first time, that the informations did not disclose any offence, because they failed to allege that Mr Goben had concurred in the making or in the publishing of a statement. It was accepted in the Local Court and in the proceedings in this Court that the solicitor had not become aware of the point earlier and made a deliberate decision not to take it earlier. 9 On 17 August 1998 the Magistrate held that, for the reason submitted, each information was defective. The Magistrate further held that because the informations did not state all of the elements of any offence, the defects in the informations were not cured by s65 of the Justices Act. The Magistrate referred to Wehbee v Voulgarakis (unreported, Supreme Court of New South Wales, Studdert J 22 October 1991). The Magistrate made orders that each information be dismissed. Mr Goben's solicitor applied for costs of the proceedings in the Local Court and after hearing argument the Magistrate made an order that "in dismissing each information the complainant is to pay the defendant's costs of $17,400". It is this order for costs which is challenged in the present proceedings in this Court. 10 By a letter of 16 September 1998 the Office of the Director of Public Prosecutions, which had been asked to advise the Police Prosecuting Service, advised the Service that in the Office's opinion the informations were invalid and the invalidity of the informations was not cured by s65 of the Justices Act but that the Magistrate, having found that the informations were incurably invalid, had no jurisdiction to proceed further and, instead of purporting to dismiss the informations, should simply have marked the court papers "no jurisdiction: struck out". The Office further advised the Police Prosecuting Service that the purported order for costs was a nullity. 11 On 21 September 1998 the Police Prosecuting Service, without consulting Mr Goben or his solicitor, wrote a letter to the clerk of the Burwood Local Court, enclosing a copy of the letter of advice of 16 September 1998 from the Office of the Director of Public Prosecutions to the Police Prosecuting Service. Some time in late September Mr Goben's solicitor was made aware of the letter of advice. 12 Subsequently the informant made an application to the Magistrate pursuant to s24 of the Criminal Procedure Act, on the basis that the Magistrate had "imposed a penalty that is contrary to law" and that the Magistrate should re-open the proceedings in the Local Court and impose a "penalty" in accordance with the law. Under ss(7) of s24 of the Criminal Procedure Act "penalty" is defined as including "an order to pay costs". On 17 February 1999 the Magistrate refused the application to re-open the proceedings in the Local Court. 13 The informant and the Office of the Director of Public Prosecutions have maintained the position that the order for costs is a nullity and the costs ordered to be paid have not been paid. 14 The proceedings in this Court were instituted on 23 April 1999. 15 The submissions made by counsel for the plaintiff at the hearing of these proceedings were in accordance with the opinions expressed by the Office of the Director of Public Prosecutions in the letter of advice of 16 September 1998 and can be conveniently be set forth in a series of steps. 16 1. It is the laying before a Magistrate of an information which confers jurisdiction on a Magistrate to hear a summary prosecution under the Justices Act. 17 2. In order for the laying of an information to confer jurisdiction, the information must be a valid information. 18 3. In the present case all the informations were defective, because they did not state all of the elements of any offence. 19 4. The defects in the informations were not overcome by s65 of the Justices Act, because the defects which can be overcome by s65 do not extend to a defect consisting of a failure to state all of the elements of an offence. 20 5. Accordingly, the informations, being subject to incurable defects, were invalid. 21 6. If a Magistrate decides that an information is invalid in the sense of being incurably defective, then the Magistrate has no jurisdiction to proceed any further and should simply record that he has no jurisdiction and strike out the information as being invalid. It was submitted that this is what the Magistrate should have done in the present case. An order under s80 of the Justices Act dismissing an information can be made by a Magistrate, only if the Magistrate has jurisdiction to hear the proceedings. In the present case, the Magistrate had no jurisdiction to hear the proceedings. 22 7. The only source of power to make an order that an informant pay the defendant's costs of a summary prosecution is s81 of the Justices Act and such an order under s81 can be made, only if an order has properly been made under s80 dismissing the information. In the present case, as the orders dismissing the informations were not properly made, the costs order was a nullity. 23 Most of the steps in the submissions by counsel for the plaintiff were not disputed but it is useful to make some reference to all of them. I will adopt the same numbering system as above. 24 1. This proposition is clearly established. In Ex parte Walker: re Goodfellow (1944) 45 SR 103 Jordan CJ in giving the judgment of the court said at p108:- "In the case of a summary prosecution by the procedure provided by the Justices Act , it is the laying before a Magistrate of an information, written or oral, charging a specified person with a specified offence triable summarily, which at once commences the prosecution and invests the Magistrate with jurisdiction to proceed to the trial of that person for that offence". 25 2. In my opinion, this proposition is also correct. 26 In John L Proprietary Limited v Attorney General for the State of New South Wales (1987) 163 CLR 508 a prosecution had been brought under the Consumer Protection Act 1969 (NSW). Section 56(1) of that Act provided that proceedings for offences under the Act might be heard by a Magistrate or by the Supreme Court in its summary jurisdiction. The particular prosecution in John L Proprietary Limited had been heard by the Supreme Court in its summary jurisdiction. Section 56(4) of the Act required that proceedings for offences under the Act be commenced by information. It was held by the majority of the High Court (Mason CJ, Deane and Dawson JJ) that the information which had been laid was defective, in that the information did not identify the "material particular" in which a statement by a retailer was allegedly false or misleading, and that the defect could not be cured under s6(1) of the Summary Jurisdiction Act, which was the equivalent in the Summary Jurisdiction Act of s65 of the Justices Act. At p520 their Honours said:- "If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement, such as that contained in s56(4) of the Consumer Protection Act , that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information". 27 3, 4 and 5. Each of these steps in the submissions of counsel for the plaintiff were common ground and indeed corresponded with submissions which had been made on behalf of Mr Goben in the Local Court and accepted by the Magistrate. As noted by Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, Jordan CJ in ex p. Lovell re Buckley (1938) 38 SR (NSW) 153 saw the English decisions on English legislation corresponding to s65 of the Justices Act as establishing that s65 did not apply "if it appears that the information does not allege all the ingredients of the statutory offence". 28 6. It was this step in the submissions of counsel for the plaintiff which was the principal focus of contention. 29 It was submitted on behalf of Mr Goben that s78 and s80 of the Justices Act can apply, even if the information by which the proceedings were commenced is invalid. Section 78 of the Justices Act provides in part that if a defendant appears at a hearing and does not admit the truth of the information, the Magistrate shall proceed to hear the matter. Section 80 of the Justices Act provides in part that, after hearing what each party has to say and the evidence, a Magistrate shall hear and determine a matter and either convict the defendant or dismiss the information. 30 It was also submitted by counsel for Mr Goben that there were decisions, or at least statements, by the High Court and the New South Wales Court of Appeal supporting the contention that an information which is invalid can be dismissed. Reference was made to Johnson v Miller (1937) 59 CLR 467, John L Proprietary Ltd and Stanton v Abernathy (1990) 19 NSWLR 656. Counsel referred particularly to a passage in the judgment of Gleeson CJ in Stanton v Abernathy, in which his Honour said at pp668-669, with reference to Johnson v Miller:- "The decision of the High Court in Johnson v Miller is of particular importance. The South Australian statute provided that a licensee out of whose premises a person was seen coming on a Sunday except during certain hours was guilty of an offence unless the licensee proved certain matters of exculpation. The appellant was charged pursuant to a complaint that alleged that on a certain day he was the licensee of certain licensed premises out of whose premises 'certain persons were seen coming' on a Sunday. The complaint was subsequently amended to refer to licensed premises out of which 'a certain person' was seen coming on a Sunday. Prior to and at the commencement of the hearing of a charge before a Magistrate it was made clear by the prosecution that about thirty persons were seen coming out of the relevant premises on the Sunday in question and the prosecution declined to specify which of those persons was the one referred to in the complaint in its amended form. After hearing argument the Magistrate dismissed the complaint. The High Court held that he was correct to do so. Although the charge was laid in the terms of the relevant statute, and although the complaint as amended did not involve patent duplicity, nevertheless the prosecution could not be permitted to lead what might amount to evidence of thirty offences and then make a random selection of one of them upon which the appellant might be convicted. It is true that the proceedings involved were summary proceedings, not committal proceedings and, further, that the relevant South Australian statutory provisions corresponding to s30 of the New South Wales Justices Act (corresponding in the case of indictable offences to s65) contained, in addition to provisions similar to those to be found in s30, an express provision conferring upon the Magistrate power to dismiss a complaint if it were not amended to cure the relevant defect. However, both Dixon J and Evatt J who were in the majority, expressed the view, not only that the Magistrate was correct in dismissing the complaint, but also that, even if there had been no express power to dismiss the complaint, in the circumstances he would have had, and should have exercised, an inherent power so to do. Dixon J, referring to the South Australian provision corresponding to s30 said (at 485-486):- '… Section 182 then provides that no objection shall be taken or allowed to any complaint in respect of any alleged defect therein in substance or in form or any variance between it and the evidence. So far, the legislation follows the provision in Jervis' Act 1848 (11 and 12 Vict c 43, sec 1). That provision, however, goes on to enact that the justices may adjourn the case to some future day if there be a variance such that the defendant has been deceived or misled. The South Australian sec 182 ends with a proviso which gives, not a power of adjournment, but a power of dismissal, and it extends the power from the case of a variance to that of a defect in the complaint or a failure of the complaint to disclose any offence or matter of complaint. If it appears to the court of summary jurisdiction that the defendant has been prejudiced by such a defect or variance or that the complaint fails to disclose any offence or matter of complaint, then, unless the complaint is amended, the court must dismiss it…'" 31 In my opinion, step 6 in the submissions of counsel for the plaintiff should be accepted. 32 Such a conclusion follows from an acceptance of the first two steps in the submissions of counsel for the plaintiff. If an information is invalid in the sense of being incurably defective, then the Magistrate has no jurisdiction. 33 Such a conclusion is also supported by parts of the judgment of Mahoney JA in Boral. In Boral Mahoney JA drew a distinction between defects in an information which can be ignored or amended ("mere defects") and defects in an information which render the information void, and not merely defective. His Honour said at p518:- "If the present informations be void and the proceedings cannot be taken further upon them, ordinarily a new information would have to be laid" 34 In the present case, the defect in each information is a defect which renders the information void. 35 Such an conclusion is also supported by the decision of Kelly J of the Supreme Court of the Australian Capital Territory in R v Sagacio (1990) 99 FLR 439. In R v Sagacio a Magistrate had summarily disposed of charges of indictable offences, without, as he was required to do, offering the prosecutor the right to have the charges dealt with on indictment. At p448 Kelly J said:- "It follows, in my opinion, that while it cannot be doubted that the learned Magistrate had jurisdiction to entertain at least one of the charges, that under s28(5) of the ordinance, when the matter was called before him, and therefore to enter upon consideration of the matter, that jurisdiction ceased when he began to deal summarily with the matter without offering the prosecutor the right to have the matter dealt with as an indictable matter. In proceeding on the basis that he had jurisdiction, he was not exercising a jurisdiction erroneously but nevertheless within power. From the moment he purported to embark upon the hearing, he was bound to stop. There was no partial jurisdiction remaining in him, for his jurisdiction was altogether taken away". 36 At p450 Kelly J quoted what Cave J had said in R v Bradley (1894) 70 LT 379 at 81:- "'Excess of jurisdiction may either exist at the time when the summons comes on to be heard, and in that case there is no jurisdiction to hear the case at all, or it may in some cases crop up in the course of the hearing, as, for example, where the question of title to land comes in question, and in such a case the jurisdiction of the Magistrates is ousted. Whenever either of these two things happens, if the Magistrates proceed to hear and determine the case, their decision must be brought up by certiorari for the purpose of being quashed as being in excess of jurisdiction. A good deal of misconception prevails as to what is and what is not excess of jurisdiction. If the Magistrates have no jurisdiction they cannot proceed with the case, either to convict or to acquit ; they have no jurisdiction to do either; they must stop short. That is the meaning of the expression want of jurisdiction, and that is what is meant by saying that Magistrates have exceeded their jurisdiction.' (Emphasis added)". 37 Counsel for the plaintiff also relied on the decision of Dunford J in Barns v Edwards (1993) 31 NSWLR 714. In Barns v Edwards informations had been laid under s4(1) of the Inclosed Lands Protection Act 1901, charging that the defendant had entered or remained on the inclosed land of another person, without lawful excuse and without the consent of the owner or occupier of the land. The Magistrate found that the defendant asserted a claim of right to enter the land and held that in those circumstances he had no jurisdiction. Having found that he had no jurisdiction, the Magistrate purported to dismiss the informations. 38 In proceedings brought in the Supreme Court by the informants Dunford J held that a bona fide assertion of a claim of right to enter the land in question did deprive a Magistrate of jurisdiction to determine a prosecution for entering or remaining on inclosed land. However, his Honour found that certain conditions which would have to be satisfied before a Magistrate's jurisdiction is ousted on this ground, had not been satisfied and that, therefore, the Magistrate had erred in finding that he had no jurisdiction. His Honour then said:- "Having found that he had no jurisdiction, the Magistrate purported to dismiss both informations. But having found that he had no jurisdiction, he did not have the power to dismiss the informations and the papers should have merely been marked 'No jurisdiction, struck out': Hickey v Gillingham [1913] VLR 184 at 186". 39 It is true that, because Dunford J had found that the Magistrate had erred in finding that he had no jurisdiction, these remarks by Dunford J were dicta but they nevertheless command respect. 40 The Victorian case of Hickey v Gillingham cited by Dunford J in Barns v Edwards is very much in point. The judgment of a'Beckett J is brief but worth quoting in full:- "In this case the defendants were proceeded against for maliciously pulling down part of a wall. The police Magistrate rightly decided that the title to the land was bona fide in question, and in that view he made an order dismissing the case, and gave costs against the informant, overruling the objection of the informant's solicitor that, as the Magistrate had no jurisdiction to deal with the dispute, he had no power to give costs. An order to review was obtained, embodying this objection. Sec 69 of the Justices Act enacts that no Court of Petty Sessions shall have cognizance of a case in which title to land is in question. This, I think, clearly excludes jurisdiction where the Magistrate finds a bona fide dispute as to title. Having found it, he had no power to make an order dismissing the complaint. He could not thus decide it, and having no power to make such an order he could not make an order awarding costs. The rule that, where there is no jurisdiction, there is no power to award costs may operate harshly as against a person wrongly brought before a tribunal which cannot deal with the case, but it has been recognized and enforced by our Court in cases indistinguishable from the present. I need not refer to them, as they are collected in the note to sec 89 in Irvine's Justices of the Peace ". 41 In the present case, counsel for Mr Goben sought to distinguish Barns v Edwards and Hickey v Gillingham, on the basis that in those cases there was a lack of jurisdiction over the subject matter of the proceedings, as distinct from a lack of jurisdiction proceeding from a defect in the information. 42 I do not consider that such a distinction can be drawn. In each case the Magistrate is without jurisdiction. I have already referred to the part of the judgment of Cave J in R v Bradley quoted by Kelly J in R v Sagacio, where Cave J equated "excess of jurisdiction" existing at the time when the proceedings come on to be heard and "excess of jurisdiction" cropping up in the course of a hearing. Cave J expressly referred to the question of title to land coming into question in the course of a hearing, as an example of the second kind of "excess of jurisdiction". 43 Having regard to passages in authorities I have already quoted, including what was said by Mason CJ, Deane and Dawson JJ in John L Proprietary Ltd, the word "information" in s78 and s80 of the Justices Act must be interpreted as meaning a valid information and does not extend to a purported information which is incurably defective and accordingly invalid. 44 It remains to consider the passages in Johnson v Miller, John L Proprietary Ltd and Stanton v Abernathy sought to be relied on by counsel for Mr Goben. 45 As appears from the part of the judgment of Dixon J In Johnson v Miller which was quoted by Gleeson CJ in Stanton v Abernathy and which has been set out earlier in this judgment, the position in Johnson v Miller was significantly different from the position in the present case. In Johnson v Miller the offence charged had been described in the complaint in the words of the statutory provision creating the offence and the South Australian Justices Act expressly provided that such a description would be sufficient in law. The complaint also stated the time, place and manner of the alleged offence, as is required of an information or a complaint by such authorities as Smith v Moody (1903) 1 KB 56. Until it appeared during the taking of the evidence that, according to the complainant, many person were seen coming from the licensed premises, "the sufficiency of the complaint would be taken for granted". The only defect in the complaint was a latent ambiguity, which might have been removed by amending the complaint or by the prosecution furnishing particulars or by the prosecution being put to its election. 46 In Stanton v Abernathy Gleeson CJ observed (at 669) that a very similar situation obtained in Stanton v Abernathy. The information in Stanton v Abernathy charged the defendant with an offence using the words of the statute creating the offence and was accordingly sufficient and the information did not, on its face, disclose any (patent) ambiguity. However, the alleged facts stated by the prosecutor in his opening address and the evidence given in the prosecution case disclosed a latent ambiguity. At p671 Gleeson CJ said:- "The authorities do not in my view justify a conclusion that the information is incurably defective, or not such as to found jurisdiction in the Magistrate. However, the proper course now to be pursued, it being apparent that the prosecutor is alleging more than one offence, is for the prosecution to be required both to give further and better particulars in accordance with the following portion of this judgment, and either elect to charge the appellant with making one false statement to the exclusion of any others, or alternatively to frame and propound additional charges, laying one charge in respect of each alleged false statement. If the prosecution declines to adopt either of those courses, then the information should be dismissed". 47 However, notwithstanding the differences between the situation in the present case and the kind of situation in Johnson v Miller and Stanton v Abernathy, there are undoubtedly statements in Johnson v Miller and Stanton v Abernathy to the effect that if there is a defect in a complaint or information which cannot be cured or is not in fact cured, the Magistrate should dismiss the information or complaint. However, in my opinion, the judges who made these statements were not adverting to the present problem, were not using the word "dismiss" in any precise sense and were merely intending to convey that the proceedings instituted or apparently instituted by the defective information or complaint should not result in a conviction and should be terminated. 48 Such an interpretation of what was said in Johnson v Miller and Stanton v Abernathy is supported, in my opinion, by an examination of the majority judgment in the High Court in John L Proprietary Ltd. In John L Proprietary Ltd the judge at first instance (Yeldham J) and the High Court held that the information was incurably defective, because it failed to identify an essential ingredient of the offence charged. Hence, the situation in John L Proprietary Ltd was similar to the situation in the present case. Yeldham J made orders that the information be dismissed, the summons be struck out and the proceedings be dismissed generally. The majority in the High Court allowed an appeal from the Court of Criminal Appeal, which had allowed an appeal from Yeldham J's decision, set aside the orders of the Court of Criminal Appeal and restored the orders of Yeldham J. 49 At first sight, the order made by Yeldham J and by the majority of the High Court, that the information be "dismissed", would seem to assist Mr Goben in the present case. However, the sense in which the majority of the High Court was using the word "dismiss" is apparent from the penultimate paragraph of their Honours' judgment. Their Honours said:- "It follows that the provisions of s6(1) of the Summary Jurisdiction Act were not applicable to preclude objection being taken to the insufficiency of the information for the purposes of s56(4). The result of that insufficiency was that the requirement of the sub-section was not complied with, in that the proceedings were not commenced by a valid information within twelve months of the commission of the alleged offence. That being so, Yeldham J was correct in making an order to the effect that it be quashed . (my emphasis) The other orders made by his Honour followed from that order, since the failure to comply with the requirements of s56(4) of the Consumer Protection Act meant that the proceedings were incompetent". 50 It is clear that their Honours were using the word "dismiss" in the sense of quashing proceedings which were incompetent and were not using the word in the sense of dismissing proceedings pursuant to a statutory power to dismiss proceedings which were competent. 51 I accordingly conclude that the Magistrate, having decided that the informations were invalid, had no jurisdiction to proceed any further and had no jurisdiction to make orders under s80 of the Justices Act dismissing the informations and should simply have struck out or quashed the informations. It might not matter what language the Magistrate used, provided, if the Magistrate used the word "dismissed", it was clearly understood that the Magistrate was not exercising the statutory power under s80 to "dismiss" an information. 52 7. This final step in the submissions of counsel for the plaintiff was not disputed. See Director of Public Prosecutions v Boykin (unreported Supreme Court of New South Wales Wood J 21 June 1994). 53 As I have accepted all the steps in the submissions of counsel for the plaintiff, I should grant the plaintiff the relief claimed, unless in the exercise of my discretion I should withhold the relief. 54 It was submitted on behalf of Mr Goben that there were reasons why in the exercise of my discretion I should not grant the plaintiff the relief claimed. Counsel relied on the fact that at the commencement of the hearing in the Local Court the police prosecutor had confirmed that he wished to proceed on the informations, as framed; the long drawn out proceedings in the Local Court; the impropriety of the Police Prosecution Service communicating with the Local Court, without consulting Mr Goben; the making of the abortive application under s24 of the Criminal Procedure Act; and the delay in instituting these proceedings. 55 I do not consider that, either individually or collectively, these circumstances are such that I should withhold the relief the plaintiff is claiming. Mr Goben's legal adviser failed to take the point that the informations were defective, until after the prosecution case in the Local Court had been completed. The Police Prosecution Service should not have unilaterally communicated with the Burwood Local Court but this is not a ground on which I should exercise my discretion against the plaintiff in the present proceedings. The making of the application under s24 of the Criminal Procedure Act was a bona fide attempt by the informant to remedy the situation cheaply and expeditiously. The first defendant was notified, within about a month of 17 August 1998, of the informant's contention that the costs order was a nullity. If allowance is made for the application under the Criminal Procedure Act, there was no marked delay in the institution of these proceedings. 56 I make orders in accordance with pars1 and 2 of the amended summons removing the record of the Local Court at Burwood and quashing the order for costs made by the second defendant. It was agreed at the hearing that I should not make any order for the costs of these proceedings, until after publication of this judgment.

DPP v Goben

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