Graham Blight v Inspector Barber

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83 CASES CITED : Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 Sharman v Director of Public Prosecutions [2006] NSWSC 135

PARTIES : Graham John Blight Inspector Mark Barber

COUNSEL : Ms E A Collins - plaintiff Mr P Skinner - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2006/12830 Graham John Blight v Inspector Mark Barber

JUDGMENT 1 HIS HONOUR: The first issue raised in this case concerns the sufficiency of two Court attendance notices ("CANS") filed in the Chief Industrial Magistrates Court on 5 August 2005. Neither of the filed CANS contains a statement in the terms required by s 175(3)(e) of the Criminal Procedure Act 1986 (the CP Act). 2 Section 175(3)(e) provides: "(3) A court attendance Notice must do the following: ………… (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person." 3 The plaintiff is being prosecuted by the WorkCover Authority of New South Wales for alleged breaches on 11 August 2003 pursuant to ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. The first defendant is an inspector employed by WorkCover and is the prosecutor. 4 The maximum penalty for an offence in the case of an individual (being a previous offender) is 750 penalty units or imprisonment for 2 years, or both, or in the case of an individual (not being a previous offender) 500 penalty units: s12 of the Occupational Health and Safety Act 2000. Being proceedings in a lower court for an offence, Chapter 4, Part 2 Division 1 of the CP Act applies. 5 Pleas of not guilty to each charge were entered by the plaintiff and were listed for hearing on 22 May 2006. At the outset of the hearing the plaintiff argued that the Chief Industrial Magistrate did not have jurisdiction to hear the proceedings as the filed CANS did not comply with s 175(3)(e) of the CP Act. The Chief Industrial Magistrate disagreed and in written reasons delivered on 15 August 2006 determined that the filed CANS were valid and prescribed forms of court attendance notice. 6 By way of an amended summons, the plaintiff seeks declarations that proceedings with respect to each CAN were not commenced within the time prescribed by s 107 of the Occupational Health and Safety Act and that the Chief Industrial Magistrate's Court is without jurisdiction to hear the proceedings. The second defendant is the Chief Industrial Magistrate. 7 The plaintiff contends that compliance with s 175 of the CP Act is mandatory. The failure to file a CAN which includes the statement required by s 175(3)(e) of the CP Act, the plaintiff submits, amounts to a non-compliance with an essential preliminary to the commencement of criminal proceedings. The consequence of the failure is that the Chief Industrial Magistrate does not have jurisdiction to hear the matters. 8 An analogy is drawn by the plaintiff to the provisions of s 177 of the CP Act which were considered in Sharman v Director of Public Prosecutions [2006] NSWSC 135. The issue in that case was whether proceedings for offences including negligent driving occasioning death contrary to s42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 were validly commenced within time as copies of the court attendance notices containing an endorsement as to service were not filed in the registry of the court within the limitation period prescribed by s 177(4) of the CP Act. Bell J said [at 39]: "The Criminal Procedure Amendment (Justices and Local Courts) Act introduced a completely new scheme with respect of the commencement of criminal proceedings. The subject matter of the Act is the conduct of criminal proceedings both summary and on indictment. The Division is concerned with the commencement of proceedings for summary offences, including proceedings for indictable offences that are to be dealt with summarily: s170(1). Proceedings for summary offences are to be commenced by the issue and filing of a court attendance notice in accordance with the Division. 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 the Division. The language of s 177(4) is imperative. In my opinion it cannot be read disjunctively as requiring as a condition of the commencement of proceedings that a copy of the court attendance notice be filed and, separately, making provision for the filing of a copy of the court attendance notice that contains an endorsement as to service."

As a consequence of the failure to comply with s 177(4) of the CP Act, her Honour declared that the proceedings were not commenced within time and the Local Court was without jurisdiction to hear them. 9 The plaintiff submits that ss 175 and 177 of the CP Act both employ the word "must" and, as both provisions appear in Chapter 4, Part 2 Division 1, they should be construed consistently. If the requirements of s 177(4) are mandatory as held by Bell J in Sharman, the plaintiff contends that the requirements of s 175(3) are also mandatory. It is to be noted that s 177 of the CP Act was amended on 29 November 2006 by the Crimes and Courts Legislation Amendment Act 2006. 10 The first defendant (hereinafter referred to as the prosecutor) submits that Sharman is to be distinguished as her Honour was dealing there with the issue of whether the proceedings had been properly commenced under s 178 of the CP Act by the filing of a copy CAN, as was then required under s 177(4) of the CP Act. 11 In the present case, each CAN was served on 1 August 2005 and filed on 5 August 2005. No issue as to filing within seven days therefore arises. It is not in dispute that the CANS were filed within seven days.

12 A further contention for the plaintiff is that his Honour erred by finding that there were two prescribed forms [of CANS] for use, whereas the plaintiff argues neither the 2000 nor the 2005 regulations (sic) contained any prescribed form of CAN. 13 In response, the prosecutor notes that ss 175(1) and (2) of the CP Act refer only to rules, not regulations and contends it well established pursuant to rules 59(2) and (3) of the Local Courts (Criminal and Application Procedure) Rule 2003 that the CANS filed in the present proceedings comply with the requirements of the Act and the rules as to form. 14 The following provisions in Chapter 4, Part 2 Division 1 of the CP Act were in force at the time of filing of the CANS: " 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. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State. 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.

175 Form of court attendance notice 175(1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.

177 Service of court attendance notices 177(1) A court attendance notice issued by a police officer must be served by a police officer 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 seven 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 178(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. 179 Time limit for commencement of summary proceedings 179(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed. (2) This section does not apply: (a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or (b) to an indictable offence that has been dealt with summarily. 15 The Occupational Health and Safety Act specifies that proceedings for an offence against that Act may be instituted within the period of two years after the act or omission alleged to constitute the offence, except as otherwise provided by s 107 or s 107A of the Act. As the offences are alleged to have been committed on 11 August 2003, the time for instituting the proceedings expired on 10 August 2005. Although the CANS were filed on 5 August 2005, the plaintiff contends that the proceedings were not validly instituted. 16 Before the Chief Industrial Magistrate were two forms of CAN each headed "FOR GENERIC USE". In his reasons, his Honour sedulously detailed (at paras 10-12) variations in the two forms one of which is referred to as a "Court/Service Copy" and the other as a "Defendant Copy". As was identified by his Honour the major variations between the forms are found on the second page. The Defendant Copy bears a section entitled INFORMATION FOR THE DEFENDANT, which is not included in the Court/Service Copy. His Honour was satisfied that the warning in paragraph 3 of that section met the requirements of s 175(3)(e) of the CP Act. No issue is taken with this finding, which is clearly correct. A section headed STATEMENT OF SERVICE appears, as the Chief Industrial Magistrate pointed out, on the Court/Service Copy whereas it does not on the Defendant Copy. His Honour had earlier found that an examination of the "prescribed forms" set out within the regulations to the Act revealed that these forms were "two separate prescribed forms for use in this jurisdiction"(emphasis added). 17 In accordance with s 175(1) of the CP Act a CAN must be in writing and be in the form prescribed by the rules. The rules may prescribe one or more forms of CAN: s 175(2). 18 Section 3 of the CP Act 1986 defines "rules" as meaning: " Rules made for the purposes of a court to which the relevant provision applies." 19 The relevant "rules" for the purpose of s 175 of the CP Act are those under the Local Courts (Criminal and Applications Procedure) Rule 2003. 20 An "approved form" is defined in clause 3 of that Rule to mean in relation to a document: "………the form approved for that document by the Chief Magistrate under clause 59 from time to time". 21 Clause 59 provided prior to being amended on 30 March 2007:

"Forms 59(1) The Chief Magistrate may from time to time cause to be published in the Gazette approved forms for the purpose of this Rule. (2) If there is no approved form for a document required to be filed in any proceedings in a Court, the registrar of the Court may approve the form of the document. (3) Strict compliance with an approved form is not necessary but substantial compliance is sufficient." 22 It seems that no approved form of CAN has been published in the Gazette. The two forms of CAN identified by the Chief Industrial Magistrate have been in use in the Chief Industrial Magistrates Court and Local Courts generally since July 2003. 23 The two CANS filed in the present proceedings are Court/Service CANS. It was open to the prosecution to introduce evidence of approval of the form of the CANS by the registrar of the Chief Industrial Magistrate's Court but no such evidence was led. As a consequence, there was no evidence available to his Honour to permit a finding that either form of CAN was a form prescribed by the rules for use in the Chief Industrial Magistrates Court. 24 In Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83, a similar issue was considered by the Court of Appeal. Campbell JA, with whom Mason P and Tobias JA agreed, observed [at 22-23]: "22. No approved form of CAN has been published in the Gazette. A form of CAN had been approved by the Chief Magistrate at some time prior to 13 June 2003 (the date on which the Rules were made) has been published on the Local Courts official website, and has been in use throughout Local Court's since July 2003….. 23. There is no evidence that that form has been approved by the registrar (as opposed to the Chief Magistrate) of the Local Court. I conclude that the permission given by section 175(2) for the rules to prescribe one or more forms of CAN has not been acted upon, and that the requirement in section 175(1) that the CAN "be in the form prescribed by the rules" does not presently have any content." 25 It is not in dispute that the filed CANS comply with the requirements of subss 175(3)(a)-(d) of the CP Act. Non-compliance with s 175 does not, however, necessarily lead to a conclusion that the Chief Industrial Magistrate lacks jurisdiction. In Knaggs the Court of Appeal held that a contravention of s 175(3)(b) did not result in the invalidity of the CAN and of any convictions that result in proceedings commenced by such a CAN. 26 A principal contention for the plaintiff is that ss 175 and 177 of the CP Act both employ the word "must" and should be construed consistently in accordance with "Sharman". The imperfection in that reasoning is manifested by the appearance of the word "must" in s 175(1). 27 As was said by Campbell JA in Knaggs [at 53]: "……….another aid to construction is that the word " must " appears in both section 175(1) and in section 175(3). Section 175(1) states that a CAN " must " be in the form prescribed by the rules - yet section 175(2) confers a mere permission for the rules to prescribe court forms, rather than a positive requirement. The form of the legislation therefore left open the possibility, which has in fact happened, that there is no prescribed form. It would be strange if a failure to comply with section 175(1), through not using " the form prescribed by the rules " for a CAN, made that CAN void. Indeed, if that were so, every CAN that the Local Court has issued since the commencement of section 175 would be void, all convictions obtained pursuant to proceedings commenced by such a CAN would be void, and all acquittals obtained in proceedings commenced by such a CAN would be likewise void and so would not give rise to a defence of autrefois acquit. I doubt that the legislature is likely to have intended those consequences. If a failure to comply with what section 175(1) says " must " be done does not necessarily result in invalidity of the CAN, that suggests that failure to comply with what section 175(3) says " must " be done does not necessarily result in invalidity of the CAN either". 28 It is well established that a failure to comply with a legislative requirement that some act must be done in a particular way does not necessarily result in invalidity. The 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: see Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-390. There are, as was recognised in Knaggs [at 34-37] particular considerations that relate to legislative provisions concerning the manner in which the jurisdiction of courts is exercised or invoked. When a statutory provision relates to the exercising by a court of jurisdiction, particular principles of construction of legislation come into play. There is a "basic rule" that it is presumed that the Parliament does not intend to cut down the jurisdiction of courts save to the extent that the legislation in question expressly so states or necessarily implies: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 505 [72], Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 at [31]. 29 No express provision is made in s 175(3)(e) or in the CP Act itself for the consequences of a failure to provide the required statement. There is no express statement that proceedings commenced by a CAN, which does not comply, will be invalid. Nor is there, in my view, a necessary implication of invalidity. 30 The nature of the obligation created by s 175(3)(e) is of particular significance. The CAN is obliged to bear what is in effect a warning to the accused person that failure to appear may result in the arrest of the person or in the matter being dealt with in the person's absence. Section 175(3)(d) provides that the CAN must require the person to appear before the court at a specified date, time and place (unless a warrant for arrest is issued or bail is refused). It would be a peculiar result if the absence of the warning on either the Court/Service Copy or the Defendant Copy invalidates the proceedings before the court when the accused person appears on the date specified. Furthermore, as a matter of common sense, I do not believe it could ever have been intended that the omission in a Court/Service CAN of the warning results in invalidity as the provision of that information is relevant only to the accused person. 31 The possibility of variance between the form of the CAN to be filed and the CAN to be served is contemplated by the permission in s 175(2) to prescribe "one or more forms". The Court/Service Copy is obviously intended to be the copy of the CAN which is to be filed in the registry of the court after the Statement of Service is completed. The box headed Court Registry use only makes provision for court staff to fill in information required for clerical purposes. Neither the Statement of Service nor the box for use by court registry staff appears on the Defendant Copy. Section 175 does not require that the CAN filed in the court registry must be identical in all respects with the CAN served on the accused person. 32 Summary criminal procedure was governed by the Justices Act 1902 until it was repealed with effect from 7 July 2003. The Courts Legislation Miscellaneous Amendments Bill introduced a legislative package to replace the Justices Act 1902. During the second reading speech of the Bill in the Legislative Assembly on 23 October 2002, Mr Moss, the Parliamentary Secretary, on behalf of the Attorney General said that sections 50 and 175 of the CP Act: "…………make references to new terminology which may be ambiguous. It was not intended that the Justices Act reform package change the law in relation to the contents of the initiating process. Therefore sections 50 and 175 will be amended to more closely reflect the language of the current law." (Hansard, Legislative Assembly, 23 October 2002 at 5750)

Almost identical language was used by Mr MacDonald, the Parliamentary Secretary, in the second reading speech in the Legislative Council on 21 November 2002. 33 It was the legislature's apparent intention that s 175 be construed in a way that does not alter the previous law concerning the contents of the initiating process for a summary offence: see Knaggs [at 66]. Under the Justices Act, summary criminal proceedings were generally commenced by a prosecutor laying an information before a justice of the peace. The justice could then issue a summons for the appearance of the defendant. If the defendant failed to appear, a warrant for the arrest of the defendant could be issued or the case could be heard in the absence of the defendant on proof of service of the summons: ss 52-77 of the Justices Act. Section 62 of the Justices Act made provision for the form of summons. 34 There was no requirement that a warning be provided to a defendant of the consequences of a failure to answer a summons. The omission of such a warning did not invalidate the proceedings commenced by an information. As the Legislature did not intend to change the law in relation to the contents of the initiating process as existed under the Justices Act, there is no reason to conclude that the Legislature intended that a non-compliance with s 175(3)(e) deprived a Local Court of jurisdiction. 35 The filing of a CAN which includes the statement required by s 175(3)(e) of the CP Act is not, in my view, an essential preliminary to the commencement of summary criminal proceedings. In the present proceedings the CANS which were filed have validly commenced proceedings against the plaintiff. 36 The second issue which arises for determination is the plaintiff's contention that the prosecutor has failed to establish that the service of the CANS was effected in accordance with the CP Act and the Chief Industrial Magistrate erred when he found that Defendant Copy CANS which contained the warning required by s 175(3)(e) were served on the plaintiff. 37 The plaintiff complains that his Honour erred in drawing an inference in the prosecutor's favour, when he commented on the plaintiff's failure to give evidence. The inference said to have be drawn by his Honour is that the plaintiff's evidence could not have assisted his case because he was served with Defendant Copy CANS. 38 The statements of service appearing on the Court/Service Copy CANS, the plaintiff argues, contain statements by the process server that he served "a copy of this Court Attendance Notice" (emphasis added) on the plaintiff and those statements are evidence that documents in the form of the filed CANS were in fact served. Clause 37 of the Local Courts (Criminal and Applications Procedure) Rule provides, the plaintiff points out, that a person who serves a document, must complete an endorsement as to service on a copy of the document served and there is every reason to construe clause 37 as a code for the service of CANS. 39 In support of the submission, reference was made to a passage which appears in the second reading speech made by the Attorney General on 5 December 2001 when introducing the Criminal Procedure Amendment (Justices and Local Courts) Bill, Crimes (Local Courts Appeal and Review) Bill and the Justices Legislation Repeal and Amendment Bill: "…The new procedures will allow police to complete a court attendance notice or an application on the spot and hand it to the defendant, sign an endorsement of the same document, and send the notice to the court registry." (Hansard, Legislative Assembly, 5 December 2001 at 19663) The plaintiff places emphasis on the reference to the "same document". 40 The prosecutor submits that the Chief Industrial Magistrate was entitled to form the view on the evidence that he did and no error in law or fact in his reasoning can be shown. 41 The argument for the plaintiff based as it is on a literal interpretation of the words "a copy of this Court Attendance Notice" makes little sense as the form of Defendant Copy CAN does not contain a statement of service. It is apparent that the Defendant Copy CAN is the form of CAN to be served and the Court/Service Copy is the form to be filed with a completed statement of service. The words "copy of this" CAN could only be intended to refer to the Defendant Copy CAN served on the accused person. 42 Clause 37(1) prior to being amended on 30 March 2007 was as follows: "(1) A person who serves a document issued in proceedings must complete an endorsement as to service on a copy of the document served".

As the Court/Service CAN includes the statement as to service and is the CAN to be filed, it is manifest that for the purpose of the rule a Court/Service CAN is a copy of the document served. 43 The reference to the "same document" in the second reading speech cannot sensibly be construed literally. After all, this would require the endorsement as to service being completed on the document previously served on a defendant. The endorsement is to be "of" the same document and not "on" the same document. In any event Clause 37 made clear what was required. 44 Evidence relevant to the issue of service of the CANS before the Chief Industrial Magistrate included the facsimile to the prosecutor from Ms Barnes, a solicitor with WorkCover, enclosing a letter dated 28 July 2005 providing instructions to the process server, the filed Court/Service Copy CANS with completed statements of service and the oral evidence of the prosecutor. An affidavit of Martin Connolly, the process server, has been filed in this Court. It was open to his Honour, upon the evidence then available to him, to conclude on the balance of probabilities that the plaintiff was served with Defendant Copy CANS. Whilst his Honour remarked upon the plaintiff's failure to give evidence, he expressly recognised that there was no requirement for the plaintiff to do so. I am unable to find that the Chief Industrial Magistrate drew the inference contended by the plaintiff. 45 No error has been established which entitles the plaintiff to the declarations sought. The proceedings against the plaintiff were validly commenced within time. The Chief Industrial Magistrate has the jurisdiction to hear the proceedings.

1. That the Amended Summons be dismissed.
2. That the plaintiff is to pay the costs of the first defendant.

3. That the proceedings be remitted back to Chief Industrial Magistrate for hearing. **********

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