"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)