Submissions
28 The plaintiff submits that there could have been proceedings commenced under s 30(2)(b) against each defendant, notwithstanding any failure to comply with the requirements of s 30(2)(a). Further, counsel for the plaintiff contends that an order striking out charges under s 30(3) does not have the effect that the subject proceeding was a nullity. The plaintiff also argues that the Magistrate, in the circumstances of each case, did have an inherent power to reinstate the charges struck out.
Kealy v Hogg
29 Counsel for the plaintiff concedes that Senior Constable Kealy did not issue a summons in accordance with the procedure under s 30(1) within sufficient time for a proceeding to have been commenced against Mr Hogg under s 30(2)(b). He makes this concession on the basis that Senior Constable Kealy failed to issue a summons to Mr Hogg within seven days of signing the charge-sheet, rendering compliance with s 30(2)(a) impossible.
30 He submits that s 30(1) of the Act provides an alternative procedure to compel the attendance of a defendant to answer a charge by giving a prescribed person power to issue a summons at any time after the charge-sheet has been signed and before the seven day period for the filing of the charge-sheet and summons under s 30(2)(a) has expired. He relies upon the legislature's use word "may" in s 30(1) in support of his argument.
31 Counsel for Mr Hogg, on the other hand, submits that, as the procedure under s 30 (1) had not been followed, the Magistrate was correct in refusing to reinstate the charges against him on the basis that no proceeding had ever been commenced. He contends that the informant did not purport to commence a proceeding under s 26, by the filing of the charge against Mr Hogg, having attempted to instigate the process under s 30. Accordingly, there was no proceeding to reinstate against his client, notwithstanding that the charge and summons had been filed.
32 Counsel for Mr Hogg supports what he contends is the Magistrate's view that a proceeding struck out under s 30(3) of the Act cannot be reinstated, because it was a nullity by reason of the failure to comply with s 30(2)(a).
Jones v Cyberman
33 Counsel for the plaintiff submits that, in the case of Mr Cyberman, the proceeding was commenced at the time of signing the charge-sheet, by the operation of s 30(2)(b), because Senior Constable Jones did issue the summons against Mr Cyberman in accordance with the procedure set out in s 30(1). He goes on to argue that the proceeding was "potentially on foot" for seven days, pending the filing of the charge and summons in accordance with s 30(2)(a). It follows, he argues, that the Magistrate erred in concluding that the proceeding in that case had never been commenced or was invalidated or nullified and could not be reinstated.
34 Counsel for the plaintiff, however, concedes for the purposes of this case that, after reinstating a charge struck out under s 30(3), it would not be open to the Magistrate (acting under s 29) to compel the defendant to answer a resurrected charge, by the exercise of a registrar's power under s 28 to issue a summons. The issue was not canvassed before the court.
35 Counsel for Mr Cyberman responds that it was open to the Magistrate to construe s 30 as providing that no proceeding against his client had been commenced as a result of the non-compliance with s 30(2)(a).
36 In the alternative, he submits that, even if a proceeding had been commenced, any power of reinstatement of the charges would be discretionary. He goes on to contend that the factors relied upon by the Magistrate in reaching his conclusion that there was no proceeding on foot would constitute proper grounds for refusing to reinstate the charges in the exercise of the discretion.
Conclusions
37 In my view, the statutory scheme under s 30 provides an alternative procedure for the issuing of a summons by a prescribed person to compel a defendant to answer a charge in relation to a prescribed summary offence. Section 30(2)(b) of the Act has the effect that a criminal proceeding commences in the Magistrates' Court upon the signing of the charge-sheet, once a summons has been issued under s 30(1).
38 The proceeding commences and continues, despite any non-compliance with s 30(2)(a). In other words, compliance with s 30(2)(a) is not a condition precedent to the commencement of a proceeding, nor does a failure to comply with the sub-section constitute a breach of a condition subsequent automatically terminating, invalidating or nullifying the proceeding. This view finds support in the terms of s 30(3) which refers to the court's obligation to strike out a charge: " if it appears to the court that sub-section (2)(a) has not been complied with in relation to a proceeding "(emphasis added).
39 Before its amendment by s 7 of the Magistrates' Court (Amendment) Act 1994, s 30(3) provided that non-compliance with s 30(2)(a) resulted in the proceeding being a nullity. That is no longer the case. However, as was common ground, the consequence of non-compliance is now the mandatory requirement that the charge must be struck out.
Jones v Cyberman
40 It follows that I conclude, in relation to ground (i), that the learned Magistrate erred in law by concluding that no proceeding had ever been commenced against Mr Cyberman and that he had no power to reinstate the charges against him, as a consequence. At the time of the strike-out order made under s 30(3), there was a proceeding on foot against Mr Cyberman by the operation of s 30(2)(b). In any event, it was the charges which were the subject of the reinstatement application, not the proceeding.
41 As far as ground (ii) is concerned, the Magistrates' reasons for decision do not indicate to me that he also decided that he had no power to reinstate the charges against Mr Cyberman because they were nullities. But, had he done so, he would also have erred because there is no warrant for such a conclusion in s 30.
42 As for ground (iii), in my opinion, the learned Magistrate erred in concluding that he had no power to reinstate the charges against Mr Cyberman, in light of the mandatory requirement to strike them out under s 30(3). The application for reinstatement amounted to an application for the setting aside of the previous strike-out order. As Batt JA made clear in DPP v Moore[6], the Magistrates' Court has an inherent power to set aside an order striking out a charge, and thereby reinstate the charge, if the strike-out order has been made in error. The inherent power exists in relation to an order erroneously made, before the merits are entered into, regardless of the legal justification for the making of the order, absent such error. In Thiessen v Fielding[7], for example, it was held that the justices had jurisdiction to reinstate a case which had been struck out by justices who mistook the effect of evidence relating to the service of a debtor's summons upon the defendant[8]. In R v McGowan[9], Kaye, J cited Mason v Ryan[10] as authority for the proposition that the exercise of the power to set aside, recognized in Thiessen v Fielding, is not limited to a situation in which an order made in error resulted from a factorial misrepresentation to the court.[11] Kaye, J upheld a magistrate's order setting aside a previous order striking out an information on the erroneous basis that the court lacked jurisdiction.
43 I am not persuaded by the argument by counsel for Mr Cyberman that the principles established by the authorities to which I have referred are inapplicable to orders striking out charges in accordance with a mandatory statutory provision, as opposed to those striking them out for failure to comply with procedural or regulatory requirements. The Magistrate's error lies in his conclusion that, because of the mandatory nature of s 30(3), he lacked the inherent power to exercise a discretion to set aside his former order.
44 Considerations relating to the mandatory nature of the requirements of s 30(3) would, however, have been relevant to the exercise of the Magistrate's discretion. In my opinion, s 30(3) would require the striking out of any reinstated charges against Mr Cyberman in relation to which Senior Constable Jones had issued a summons under s 30(1). (I note, in this regard, the significant concession by counsel for the plaintiff to the effect that the operation of the sub-section could not be avoided by an application to the Magistrate seeking his exercise, under s 29, of the registrar's power under s 28(1)(a) to issue a summons to compel the defendant's attendance. He concedes that any such application in relation to the proceeding commenced against Mr Cyberman under s 30(2)(b) would not succeed.)
45 In all the circumstances, I am satisfied that, although the Magistrate's decision in relation to the reinstatement application should be quashed for error of law on the face of the record, it would be futile to remit the application for reinstatement to the Magistrates' Court for consideration according to law. The application for relief in the nature of certiorari will be granted and the application for an order in the nature of mandamus refused.
Kealy v Hogg
46 The situation in relation to Mr Hogg is different. In that case, Senior Constable Kealy had not properly adopted the alternative procedure under s 30(1). He did not issue a summons until some 26 days after signing the charge-sheet.
47 In my view, it must logically follow from the provisions of s 30(2)(a) that the summons issued in accordance with s 30(1) must be issued within seven days of the signing of the charge-sheet. Indeed, counsel for the plaintiff concedes as much. However, he submits that the summons need not be issued on the day upon which the charge- sheet is signed.
48 It is not necessary for me to decide whether the procedure under s 30(1) would have been properly invoked if the summons had been issued on a day other than that upon which the charge-sheet was signed, but before the expiration of the seven days referred to in s 30(2)(a). Nevertheless, as the plaintiff bases the argument in favour of such an interpretation of s 30(1) on the use of the word "may" in the sub-section, I note my view that that word rather indicates that s 30(1) provides an alternative procedure for the issuing of a summons.
49 As the alternative procedure for the issuing of a summons under s 30(1) was not followed by Senior Constable Kealy, no proceeding was commenced against Mr Hogg under s 30(2)(b) and s 30(3) did not mandate the striking out of the charges against him. The learned Magistrate therefore erred in so far as he concluded that he had no power to reinstate the charges against Mr Hogg on the basis of what were the inapplicable provisions of s 30(2)(a) and s 30(3).
50 As far as the Magistrate's conclusion that there was no proceeding against Mr Hogg which could be reinstated is concerned, I note my view that it is at least arguable that a proceeding was commenced against Mr Hogg by the filing of the charges under s 26(1)(a). However, the issue for consideration by the Magistrate related to the reinstatement of the charges, as opposed to any proceeding against him.
51 Counsel for the plaintiff concedes that, in this case, the failed attempt to adopt the s 30(1) procedure could not be supplemented by the Magistrate's exercise, under s 29, of the registrar's power to issue a summons under s 28(1)(a). As a result, notwithstanding the inapplicability of s 30(3), it would also be futile in the case of Mr Hogg to remit the application for reinstatement in the exercise of the court's inherent power to the Magistrate for consideration according to law.
52 I will exercise my discretion to grant the relief sought in the nature of certiorari and quash the learned Magistrate's decision to refuse the reinstatement application in relation to the charges against Mr Hogg. However, in all the circumstances, I will refuse the application for relief in the nature of mandamus.