Appeal - Service of Appeal Notice - Whereabouts of respondent unknown - Whether personal service can be effected by way of SMS message to respondent's mobile telephone

Criminal Procedure Rules 2005 (WA), r 65(6)

Order permitting personal service by way of SMS message to respondent's mobile telephone

Appellant : Department of Consumer & Employment Protection

Guss v The Magistrates Court of Victoria [2003] VSC 365

Hope v Hope [1854] EngR 805; (1854) 4 De G M & G 328

Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542

Pino v Prosser [1967] VicRp 107; [1967] VR 835

1 BLAXELL J: On 15 September 2006 the respondent was convicted in the Perth Magistrates' Court of an offence of engaging in unlicensed dealing contrary to s 30(1) of the Motor Vehicle Dealers Act 1973 and he was fined $3000. The appellant was the complainant in that prosecution, and subsequently applied for leave to appeal against the sentence imposed.

2 Leave to appeal was granted on 26 October 2006 but the appellant was unable to effect service of the Appeal Notice due to an inability to locate the physical whereabouts of the respondent. However, the respondent could be contacted on his mobile telephone.

3 The appellant was obliged to effect personal service of the Appeal Notice pursuant to r 65(6) of the Criminal Procedure Rules 2005 which provides that:

"Any document lodged under this rule must be served on the respondent personally but, if the appellant is in custody, it may be served by post on the respondent."

4 In view of the difficulties that were experienced by the appellant in effecting service, I ultimately made an order allowing the Appeal Notice to be served by way of an SMS message to the respondent's mobile telephone. At the request of the appellant I now publish the following brief reasons for that decision.

5 The appellant has filed a series of affidavits sworn by a process server which establish the following facts.

6 During late October 2006 the process server attempted to serve the Appeal Notice on the respondent at the latter's last known address. The process server was informed by a female occupant of the property at that address that the respondent was in Tasmania and that it was not known when he would return.

7 The appellant then obtained the respondent's mobile telephone number from the respondent's former counsel. When the respondent was telephoned on this number he informed the process server that he was in Tasmania and might never return to Western Australia. He then said that "I know they are appealing the court decision" and went on to indicate by means of some colourful expletives that he would not be co-operating with service.

8 Following an application by the appellant, on 6 December 2006 I made orders including the following:

"1. Service of the Appeal Notice dated 19 October 2006 be served on the Respondent by both:

1.1 Sending a short message service (sms) to the Respondent on mobile telephone number 0408 958 748 containing the following contents of the Appeal Notice:

'The appellant applies to the Court for leave to appeal against the above sentence [$3,000 fine imposed on 22 September 2006 by His Honour Mr D.N. Jones SM of the Magistrates Court of Western Australia in Prosecution Notice No. PE 46475/03].

1. The learned Magistrate erred in law in discounting the defendant's sentence by virtue of the defendant spending 2 days in custody for failing to appear at pre-trial hearings in the Magistrates Court.

2. The learned Magistrate erred in fact or erred in law or in both law and fact in imposing a sentence that was manifestly inadequate in the circumstances of the case having regard to:

(a) the seriousness of the offence, including but not limited to the number of vehicles and period of time involved in the defendant's unlicensed dealing in motor vehicles;

(b) the need to impose a sentence that serves as a general deterrent, including in light of the difficulty in detecting unlicensed dealing in motor vehicles;

(c) the defendant's lack of remorse for committing the offence; and

(d) the fact that the defendant profited financially from the unlawful conduct.

3. The learned Magistrate erred in fact or erred in law or in both law and fact in placing undue weight on the defendant's financial circumstances in imposing sentence.

If you want to take part in this appeal you must lodge a Form 22 under the Criminal Procedure Rules 2005 within 7 days after you [receive this sms] and serve it on the Appellant.

If you would wish to obtain a copy of the Appeal Notice, please contact the Appellant's solicitor on telephone number (08) 9282 0929 to make the necessary arrangements.'

1.2 Handing the Appeal Notice to a person who appears to have reached the age of 16 years of age and appears to be residing at 22 Highview Street, Alexander Heights, being the last known address of the Respondent."

9 Subsequently the appellant was able to send an SMS message to the respondent in accordance with my order, but was unable to effect physical service of the Appeal Notice in accordance with order 1.2. On 7 February 2007 when the respondent was telephoned on his mobile telephone once again, he told the process server that he was overseas and that he did not "give a shit" about the appeal.

10 On 1 March 2007 I made an order that compliance with order 1.2 made on 6 December 2006 be dispensed with.

The reasons for allowing personal service by way of an SMS message

11 The essential question is whether the requirement in r 65(6) that the Appeal Notice be served "on the respondent personally" means that the "document" must be physically handed to the respondent. In answering this question in the negative I have adopted the very thorough written submissions from the appellant.

12 In construing r 65(6) it is relevant to firstly note the provisions which apply to service of a prosecution notice under the Criminal Procedure Act 2004. In this regard s 27(2) requires that a copy of the prosecution notice be "given" to the accused. Clause 3 of Sch 2 to the Act also contemplates that a prosecution notice can be served by post.

13 In almost all jurisdictions the rules of court require "personal service" of the document initiating the proceedings. There are of course many authorities as to what constitutes such personal service, and as was stated by Lord Cranworth L.C. in Hope v Hope [1854] EngR 805; (1854) 4 De G M & G 328, at 342:

"The object of all service is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required."

14 This principle was applied by McInerney J in Pino v Prosser [1967] VicRp 107; [1967] VR 835, 839 when determining that a writ had been personally served on the defendant by leaving it with his wife at the address where he lived.

15 Similarly, in Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542, it was held that an application was personally served even though left in a document exchange box because there was proof that it was actually received by the respondent. Young J held (at 544):

"The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial."

16 A further authority to the same effect is Guss v The Magistrates Court of Victoria [2003] VSC 365 where a summons, although not served on the defendant in the manner prescribed by the relevant legislation, was nevertheless received by him. Osborn J held that:

" ... the underlying question raised by the application of provisions such as those in issue in this case is whether an accused person receives procedural fairness in accordance with the intention of the legislature. In my view there is no doubt that once the plaintiff gave evidence that he had in fact received a copy of the summons some days after it was left for him he could not be said to have suffered any lack of procedural fairness with respect to service of the document upon him. The purpose of s 34(1)(b)(i) is not that the defendant to a summons be delivered a true copy by a particular person but that he personally receive it. Section 34(1) is not concerned with abstract rituals but with the fact of service."

17 In the present instance, the evidence before me clearly establishes that the respondent has received, and has been advised of the contents of the Appeal Notice by means of the SMS message sent to his mobile telephone.

18 In my view, that SMS message constitutes the "document" required to be served pursuant to r 65(6). In this regard, s 3 of the Criminal Procedure Act 2004 defines "document" as including a record that "is capable of being put on paper". That definition is also consistent with the definition in s 5 of the Interpretation Act 1984 whereby "document":

"includes any publication and any matter written, expressed, or described upon any substance by means of letters, figures, or marks, or by more than one of those means, which is intended to be used or may be used for the purpose of recording that matter".

19 For these reasons I have determined that the receipt by the respondent of the SMS message alone was sufficient compliance with the requirement for service under r 65(6) of the Criminal Procedure Rules 2005.