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[1987] HCA 42
High Court of Australia
1985-05-02
Toohey JJ, Dawson JJ
Original judgment source is linked above.
The application for special leave to appeal to this Court was made on the basis that the only issue which it was desired to raise was whether the purported appeal to the Court of Criminal Appeal was competent. The notice of appeal which was filed reflected that approach and was confined to raising that issue. It became apparent on the hearing of the appeal, however, that the appellant should be permitted to challenge the correctness of the substantive decision of the Court of Criminal Appeal upholding the validity of the information and both sides were given leave to supplement their arguments with written submissions. An amended notice of appeal has also been filed. In the result, there are three distinct issues which are involved in the appeal. They are: (i) Was the appeal to the Court of Criminal Appeal competent? (ii) If yes to (i), was the information defective by reason of its failure to identify the "material particular" in which the alleged statement was alleged to be false or misleading? (iii) If yes to (ii), was any such defect cured or any resulting invalidity avoided or overcome by reason of s. 6 of the Summary Jurisdiction Act? It is convenient to consider those issues in the order in which we have mentioned them.
The only basis upon which it is suggested that an appeal lay from the decision of Yeldham J. is that such an appeal lay pursuant to the provisions of s. 5C of the Criminal Appeal Act 1912. As presently relevant, that section provides:
Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act, 1967, or any charge specified in such an application the Attorney-General may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. It was held by the Court of Criminal Appeal that the appeal to it was competent both on the ground that it was an appeal from a decision of the Supreme Court quashing an information ("first limb") and on the ground that it was a decision in which the Supreme Court in its summary jurisdiction, in proceedings to which the Crown was a party, had quashed an application made under s. 4(1) of the Summary Jurisdiction Act ("second limb"). It was submitted on behalf of the appellant that the decision of Yeldham J. came within neither limb.
The first limb of s. 5C is not confined to appeals from decisions of the Supreme Court. It confers a right of appeal to the Court of Criminal Appeal in any case where either the Supreme Court or the District Court has quashed any information or indictment or any count thereof. In a case where proceedings are commenced by information, the operative act (for commencing the proceedings) is not the preparation or the signing of a written document called an information. It is the laying of the information that an offence has been committed before the court whose jurisdiction to deal with the offence is being invoked. In that context, the reference to an information being "quashed" in the first limb of s. 5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information. In that sense, the decision of Yeldham J. that the information should be dismissed because it was defective was a decision quashing it.
The appellant's argument that an appeal did not lie to the Court of Criminal Appeal pursuant to the first limb of s. 5C in the present case was not, however, based upon an assertion that the decision of Yeldham J. should not properly be seen as a decision quashing the information. Rather, it was to the effect that the first limb of s. 5C did not apply at all in respect of an information instituting proceedings in the summary jurisdiction of the Supreme Court. The second limb of the section, which expressly deals with appeals from a decision of the Supreme Court in its summary jurisdiction quashing an application under s. 4(1) of the Summary Jurisdiction Act, should, according to the appellant's argument, be construed as exhaustively defining the right of appeal in any such case with the consequence that no appeal lies unless the Crown was "a party" to the proceedings at first instance. In support of that argument, the appellant points to the legislative history of s. 5C which discloses that the second limb of that section, which was added in 1979, transferred the jurisdiction to hear appeals from the Supreme Court in its summary jurisdiction from the New South Wales Court of Appeal to the Court of Criminal Appeal: see the former ss. 18 and 24 of the Summary Jurisdiction Act; Supreme Court (Summary Jurisdiction) Crimes (Amendment) Act 1979 NSW, s. 5 and Item (6) of Sched. 1; Criminal Appeal (Crimes) Amendment Act 1979 NSW, s. 4 and Item (4) of Sched. 1. There would, no doubt, be considerable force in this argument if the ordinary procedure for making an application under the Summary Jurisdiction Act was by way of information. As has been seen however, the procedure for making such an application is by way of summons. The special requirement in s. 56(4) of the Consumer Protection Act that proceedings such as those in the present case shall be commenced by information is in conflict with that ordinary procedure and reflects what must be presumed to be a considered legislative intent that proceedings in any court for an offence against the Consumer Protection Act (Pt V excepted) should be commenced by information with all that that involves. That being so, there is no reason why it should be supposed that it was the legislative intent that the ordinary procedures for quashing an information or for appealing from a decision quashing an information should be excluded. Moreover, in that context, the actual information commencing proceedings in the summary jurisdiction for an offence against the Consumer Protection Act cannot properly be described as an "application made under" the Summary Jurisdiction Act. It was and remained an information under the Consumer Protection Act.
In terms, the first limb of s. 5C confers a right of appeal to the Court of Criminal Appeal from a decision quashing an information, regardless of whether the proceedings upon the information, if it had not been quashed, would have been heard by a judge and jury or summarily by a judge alone. We can find no warrant, in either the legislative history of s. 5C or the words of the second limb of that section, for constricting the plain general words of the first limb in the manner for which the appellant contends. Indeed, as has been seen, the words of the first limb are more appropriate to refer to a decision quashing an information as defective than are the words of the second limb. It follows that an appeal lay to the Court of Criminal Appeal under the first limb of s. 5C from the decision of Yeldham J. that the information in the present case was invalid by reason of its failure adequately to identify the alleged offence.
Strictly speaking, it is unnecessary to examine the question whether an appeal also lay pursuant to the provision of the second limb of s. 5C. We have, however, formed a clear view on that question. Since it was primarily to permit consideration of it that special leave to appeal was granted, it would seem appropriate that we briefly indicate what that view is. It is that an appeal did not lie to the Court of Criminal Appeal in the present case pursuant to the second limb of s. 5C for the reason that the proceedings before Yeldham J. were not proceedings to which "the Crown" was a "party". They were proceedings to which the parties were Mr. Clayton and the appellant. The fact that Mr. Clayton was an officer of the Department of Consumer Affairs at the time the information was laid before a judge of the Supreme Court and that the proceedings were taken and prosecuted by him with the authority of the Acting Minister for Consumer Affairs might arguably mean that, for some purposes and in a broad and imprecise sense, the proceedings are properly to be seen as brought by or on behalf of "the public" or "the State" or as susceptible of being equated with Crown proceedings. The requirement of the second limb of s. 5C is not however that the proceedings be "public" or that they be brought on behalf of "the State" or by "the State" as a party or that they can be equated with "Crown proceedings". It is that "the Crown", which is a limited aspect of "the State" in the broad sense, be itself "a party". In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to "the Crown" being "a party" a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by Mr. Clayton as "a person" (s. 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs: contrast, e.g., proceedings to which "the Minister" (s. 56B) or "the Commissioner with the consent of the Minister" (s. 56A(1)) is a party. They were not proceedings to which the Crown was a party in any accepted meaning of the words "Crown" and "party".
The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" Ex parte Lovell; Re Buckley [2] . The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 (11 & 12 Vict. c. 43), ss. 1 and 3 and the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 39) was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckley [3] and, in particular, Justices Act 1902, ss. 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g., Smith v. Moody [4] ; Johnson v. Miller [5] ; Ex parte Graham; Re Dowling [6] . It is, however, unnecessary to pursue that particular question here since, putting to one side s. 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.
In De Romanis v. Sibraa [7] , Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented [8] :
In Johnson v. Miller [9] Dixon J. saw the decision in Smith v. Moody [10] as requiring the information to specify "the time, place, and manner of the defendant's acts or omissions"; McTiernan J. [11] referred to "fair information and reasonable particularity as to the nature of the offence charged". The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason [12] .
These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.
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 s. 56(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. 1. [1977] 2 N.S.W.L.R. 264, at p. 291. 2. [1977] 2 N.S.W.L.R., at pp. 291-292. 3. (1937) 59 C.L.R., at p. 486. 4. [1903] 1 K.B., at pp. 61, 63. 5. (1937) 59 C.L.R., at p. 501. 6. (1964) 81 W.N. (Pt 1) (N.S.W.) 286, at pp. 290, 291.
As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1,000 litres of free petrol to customers "buying a car over $3,000.00" during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the "manner of the [appellant's] acts or omissions" (cf. per Dixon J., Johnson v. Miller [13] ) or to provide "fair information and reasonable particularity as to the nature of the offence charged": per McTiernan J. [14] . In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the "material particular" in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision. The only such statutory provision which is suggested by the respondent Attorney-General to have had that effect is s. 6 of the Summary Jurisdiction Act.
Section 6(1) of the Summary Jurisdiction Act provides:
No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. At first instance, the informant did not rely upon the provisions of s. 6(1). Reliance was, however, placed upon those provisions in the Court of Criminal Appeal where it was held that s. 6(1) was effective to preclude objection being taken to the failure of the information to identify the material particular in which the alleged statement was false or misleading.
In terms, s. 6(1) is confined to defects in an "application referred to in, or to any order or warrant made or issued under, section 4 or 5" of the Summary Jurisdiction Act. The information was not such an order or warrant. Nor was it an "application referred to in section 4 or 5". The only reference to "an application" in those two sections is in s. 4(1) which, as has been seen, refers to "an application being made by any person in accordance with the rules". The information was not "an application made in accordance with the rules". Its operation was under a statutory provision (s. 56(4) of the Consumer Protection Act) which effectively overrode the requirement of the Rules that proceedings under the Summary Jurisdiction Act be commenced by summons. Nor was it defective as an application under the Summary Jurisdiction Act. It was defective as an information under and for the purposes of a different and subsequent Act. Section 6(1) of the Summary Jurisdiction Act simply had nothing to say in relation to its invalidity as an information for the purposes of s. 56(4) of the Consumer Protection Act.
It follows that the provisions of s. 6(1) of the Summary Jurisdiction Act were not applicable to preclude objection being taken to the insufficiency of the information for the purposes of s. 56(4). The result of that insufficiency was that the requirement of that 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. The other orders made by his Honour followed from that order since the failure to comply with the requirements of s. 56(4) of the Consumer Protection Act meant that the proceedings were incompetent.
We would allow the appeal, set aside the orders of the Court of Criminal Appeal and restore the orders of Yeldham J.
The issues and relevant statutes are set out in other judgments. I need not repeat them. I address the two questions on which this appeal depends:
Section 5C of the Criminal Appeal Act 1912 NSW (hereafter "s. 5C") confers on the Attorney-General a right of appeal to the Court of Criminal Appeal in the several classes of cases therein specified. The first class is where "the Supreme Court or the District Court has quashed any information or indictment or any count thereof". In the context of the regular (non-summary) criminal jurisdiction of the Supreme Court and the District Court, an "information" is a "species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury" (Blackstone's Commentaries, 1st ed. (1769), vol. 4, Ch. 23, p. 303) for an offence "under the degree of treason, or felony": Comyns' Digest, 4th ed. (1800), vol. 4, p. 393 (title "Information"). An information of this kind differs from an indictment "in little more than this, that the one is found by the Oath of twelve Men, and the other is not so found; but is only the Allegation of the Officer who exhibits it ": Hawkins, Pleas of the Crown, vol. 2, Ch. 26, s. 4. An accused person may be brought to trial before a jury on a charge of an indictable offence either upon indictment or upon information: Reg. v. Slator [15] ; and cf. Shortt on Informations (1887), Pt I, Chs. V and VI. Proceedings on such an information or on indictment are pleas of the Crown, to be distinguished from summary proceedings which are not. In Munday v. Gill [16] , Dixon J. said:
Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The first limb of s. 5C embraces pleas of the Crown in the regular criminal jurisdiction of the Supreme Court and of the District Court. 1. (1881) 8 Q.B.D. 267, at p. 274. 2. (1930) 44 C.L.R. 38, at p. 86.
The Supreme Court (Summary Jurisdiction) Act 1967 NSW (the "Summary Jurisdiction Act") conferred on the Supreme Court a summary jurisdiction in certain criminal matters. When that jurisdiction was conferred, the only right of appeal conferred on the Attorney-General was a right to have a case stated for the opinion of the Court of Appeal: ss. 18, 20, 28. In 1979, those sections were deleted by an amending Act (No. 96 of 1979). Thereupon the Criminal Appeal Act was amended (by No. 97 of 1979) by, inter alia, inserting the second limb of s. 5C. The second limb relates to cases where "the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act, 1967, or any charge specified in such an application". An application under s. 4(1) is made by "any person" alleging that a person has committed an offence punishable in the summary jurisdiction: see par. (a) of s. 4(1). The common law is a stranger to summary proceedings (Blackstone's Commentaries, vol. 4, Ch. 20, p. 277) and there is no common law procedure - as there is in respect of "informations" in the regular jurisdiction - by which a summary prosecution may be brought at the suit of the Crown. Nor is there any statutory authority for commencing a summary prosecution in the name of the Crown. Although there is no procedure by which the Crown becomes a party to a prosecution under the Summary Jurisdiction Act as it becomes a party to prosecutions brought on indictment, presentment or information in the regular jurisdiction, s. 5C contemplates that some summary proceedings between subject and subject shall be proceedings to which "the Crown" is "a party": and see also s. 5A. Unless the right of appeal conferred by the second limb is illusory, some summary proceedings must be identified as falling within the description of proceedings to which "the Crown" is "a party".
The "Crown" does not mean the Sovereign personally; it means the Crown in its relevant public capacity, i.e., as the Executive Government responsible for enforcing a public law for the public good. The legislature must have meant the second limb to relate to proceedings in which a representative of the Government, acting in his official capacity, is a party; i.e., to a prosecution commenced either by a Minister or by a government official acting in performance of his official functions. This accords broadly with the approach taken in Lenthall v. Hillson [17] and Ex parte W. A. Grubb Pty. Ltd.; Re Johnston [18] . A distinction may have to be drawn between a prosecution by an independent statutory authority and a prosecution by a Minister or an officer of a department of government (cf. Stuckey v. Iliff [19] ) but that question does not arise here. I agree with Toohey J. that the proceeding in the present case is one in which the Crown was a party. I should also briefly state my view as to the application to the present case of the first limb of s. 5C.
As the Rules of the Supreme Court require that summary proceedings should be commenced by summons (Pt 75, r. 7), not by information, there is no reason to suppose that the first limb of s. 5C confers a right of appeal against the quashing of an application under s. 4(1) of the Summary Jurisdiction Act in the ordinary case. But the provisions of s. 56(4) of the Consumer Protection Act 1969 NSW require summary proceedings for an offence against that Act (Pt 5 excepted) to be "commenced by information". When an application is so commenced and is quashed by the Supreme Court, is a right of appeal conferred on the Attorney-General by the first limb of s. 5C by reason of the quashing of an "information"? The answer depends on the scope which the legislature intended to give to the term "information" in the first limb. The context in which the term is used (i.e., "information or indictment") suggests that the right of appeal conferred by the first limb of s. 5C is restricted to cases where the information which is quashed is truly an alternative to an indictment. As information and indictment are the two processes which enliven the regular criminal jurisdiction of the Supreme Court, the phrase "information or indictment" appears to describe the pleas of the Crown in the regular jurisdiction. The requirement of the second limb that the Crown be a party states an element common to the two limbs: pleas of the Crown in the regular jurisdiction are the subject of the first limb and Crown prosecutions in the summary jurisdiction are the subject of the second. No legislative purpose appears to be served by holding that the first limb applies to those extraordinary cases where a summary prosecution is commenced by information. The history of s. 5C confirms this construction. Prior to 1979, the first limb of s. 5C applied only to pleas of the Crown in the regular jurisdiction. There were no "informations" which were not pleas of the Crown. When a right of appeal to the Court of Criminal Appeal against the quashing of an application made under s. 4(1) of the Summary Jurisdiction Act was conferred on the Attorney-General, there were no "informations" in the summary jurisdiction which might have constituted such "an application". The exceptional requirement of s. 56(4) introduces a possible ambiguity not ordinarily present in the meaning of the term information in s. 5C. In my opinion, the better view is that the right of appeal conferred by the first limb is restricted to cases where the quashed information or indictment is the formal allegation of an indictable offence made in the regular jurisdiction and that the right of appeal conferred by the second limb is limited to cases where the Crown is a party (in the sense stated) to the summary proceedings in which the quashed application is made, whether the application be made by summons, upon information or otherwise.
So construed, the first limb of s. 5C gave the Attorney-General no right of appeal in the present case but the second limb did.
It is therefore necessary to decide whether Yeldham J. was right in dismissing the information laid by the prosecutor, the summons and the proceedings generally on the ground that the information was "incurably bad and incapable of amendment". His Honour came to that conclusion without considering the effect of s. 6(1) of the Summary Jurisdiction Act:
No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. At the hearing, s. 6(1) was not relied on by the prosecutor although, in my opinion, it is a conclusive answer to the appellant's objection. His Honour therefore considered the case as though the order to be made depended on whether the information (or the summons, for they were identical in their material parts) was defective. His Honour held that the information was defective. He said: in a case such as the present, where there are no statutory provisions which validate an information lacking the particularity which the common law has always required, it is necessary that such information must not only allege all the elements of the statutory offence but must also specify with reasonable precision the time, place and details of the acts or omissions charged. In particular the information must identify the way in which the relevant section is alleged to have been contravened. In the present case that would require a specification in such information of the falsity or the misleading character of the advertisement, of which the defendant allegedly had knowledge.
Although initiating processes in the summary jurisdiction were not subject to the same strict requirements as were applied to informations and indictments in the regular jurisdiction (R. v. Chandler [20] ), it was not always sufficient to follow the words of the statute in charging the offence. As Jordan C.J. explained in Ex parte Ryan; Re Johnson [21] :
The person accused is entitled to sufficient particulars of the matter charged against him to enable him to meet the charge. Hence, in earlier times, it was repeatedly held that to follow the words of the statute in alleging the offence in the information was not necessarily sufficient. "Where a particular act constitutes the offence, it may be enough to describe it in the words of the Legislature; but where the Legislature speaks in general terms, the conviction must state what act in particular was done by the party offending to enable him to meet the charge": R. v. James [22] . In many cases it was open to doubt whether it was necessary to add particulars to the language of the statute in framing the information: Fletcher v. Calthrop [23] , and this led to its being expressly enacted that "the description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or any similar words, shall be sufficient in law" (Justices Act 1902, s. 145A(1), taken from Summary Jurisdiction Act 1879 (42 and 43 Vict. c. 49), s. 39(1)). The defect in Fletcher v. Calthrop was similar to the defect in the present case. There, a conviction was drawn up in the terms of the relevant statute, stating that a close had been entered unlawfully, but the grounds of the unlawfulness did not appear. The conviction was held to be defective. (The certainty required of a conviction was required also of a complaint or information which initiated a summary prosecution: Johnson v. Miller [24] ; and cf. Ex parte Lovell; Re Buckley [25] ). In Fletcher v. Calthrop, Lord Denman C.J. stated the principle to be [26] "that, where a certain act is made punishable by summary conviction, which act may be lawful if performed under certain circumstances, these circumstances ought to be negatived in the conviction". The act which is punishable under s. 32(1) of the Consumer Protection Act is the publication of a statement; the circumstances which are alleged to make the act unlawful, prescribed by par. (b), are the false or misleading character of the statement known to the alleged offender. Those circumstances should be specified, and Fletcher v. Calthrop supports the view that the present information is deficient in so far as it fails to specify the respect in which the alleged advertisement was false or misleading. 1. (1700) 1 Ld. Raym. 581, at p. 583 [91 E.R. 1288, at p. 1290]. 2. (1943) 44 S.R. (N.S.W.) 12, at p. 16. 3. (1784) Caldecott 458, at p. 461. 4. (1845) 6 Q.B. 880 [115 E.R. 332]. 5. (1937) 59 C.L.R. 467, at p. 488. 6. (1938) 38 S.R. (N.S.W.) 153, at p. 166. 7. (1845) 6 Q.B., at pp. 890-891 [115 E.R., at p. 336].
One of the provisions designed to overcome technical objections to the form of a complaint provided, as Jordan C.J. noted, that a description of an offence in the words of the relevant statute should suffice. However, in Smith v. Moody [27] , such a provision failed to support a conviction which did not specify the property which an offender had injured. Channell J. said [28] :
although s. 39 provides that it shall be sufficient so far as regards the description of the offence to follow the statute, I do not think the section in any way dispenses with the usual necessity for specifying time and place and matter in the way in which it has been hitherto specified. It could not possibly suffice in a case of larceny simply to specify the name of the person whose property was stolen. There must be facts relating to the particular matter, such as the time when and the manner in which the offence was committed, which would have to be inserted in the charge, and the omission of which cannot be cured by stating the offence in the words of the statute. Smith v. Moody established that compliance with the provision authorizing the following of the statutory words did not necessarily prevent an information being defective for want of particularity, but it did not establish - at least in this country - that the defect was "incurably bad" or deprived the court of jurisdiction. Following the passage earlier cited from his judgment in Ex parte Ryan [29] , Jordan C.J. continued: After this, however, it was held in two cases in England that this section does not mean what it says, and that an information is still bad unless it includes all such particulars as would formerly have been necessary: Ex parte Lovell [30] . In view of what has since been said in the High Court in Davies v. Ryan and Johnson v. Miller [31] , it is open to question whether the two cases referred to correctly state the present law in N.S.W. 1. [1903] 1 K.B. 56. 2. [1903] 1 K.B., at p. 63. 3. (1943) 44 S.R. (N.S.W.), at p. 16. 4. (1938) 38 S.R. (N.S.W.), at pp. 169-170. 5. (1937) 59 C.L.R., at pp. 490, 497, 501.
In Davies v. Ryan [32] Evatt J. distinguished between a case where a complaint is so defective that the information must be dismissed, and a case where a complaint is lacking in particulars and the defendant is entitled to an order for particulars in order to meet the case against him. Jordan C.J. said in Ex parte Lovell [33] "the object, as is pointed out by Evatt J. in Davies v. Ryan, can be secured otherwise than by insisting upon a retention of the old rule that these particulars must necessarily be given upon the face of the information itself". The distinction drawn by Evatt J. saves the criminal law from the reproach of being crippled by technicality. In Johnson v. Miller, Latham C.J. in dissent referred to Davies v. Ryan with approval and would have upheld the sufficiency of the complaint despite a want of specificity as to the particular time or event relevant to the offence charged. The majority in Johnson v. Miller, including Evatt J., were not concerned to decide whether Smith v. Moody should be followed in so far as it requires a complaint which lacks particulars as to the time, place or acts constituting the offence charged to be dismissed. They were concerned to determine what were the consequences of the prosecutor's failure in that case to furnish particulars and, in particular, to determine whether the proviso to s. 182 of the Justices Act 1921-1936 SA required the dismissal of the complaint in the circumstances. The reference by Dixon J. to Smith v. Moody was merely for the purpose of showing that there was authority for the proposition that the following of the words of the statute does not necessarily eliminate the obligation to furnish particulars. Referring to s. 55 of the Justices Act SA, which provided that a description in a complaint of an offence in the words of the relevant statute should be sufficient, his Honour said [34] :
But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v. Moody). 1. (1933) 50 C.L.R. 379. 2. (1938) 38 S.R. (N.S.W.), at pp. 169-170. 3. (1937) 59 C.L.R., at p. 486.
It is unnecessary to consider further the operation of a provision similar to s. 55 of the Justices Act considered in Johnson v. Miller, for no such provision is relied on in this case. The obligation to furnish particulars of the charge in the information and in the summons in the present case is manifest. The circumstances which made the publication unlawful were not stated, and Fletcher v. Calthrop shows that such circumstances should be stated. The obligation to furnish particulars is not eliminated by following the words of s. 32(1)(b) of the Consumer Protection Act. It is clear that, if the prosecution had proceeded, the appellant would have been entitled to particulars specifying the manner in which the alleged advertisement was false or misleading. But the critical question is as to the effect of the want of particulars in the information and summons: was the Court without jurisdiction to entertain the application? Or, did the Court have jurisdiction to entertain the application, to make whatever order for particulars was appropriate and, provided appropriate particulars were given, to hear and determine the matter?
I am in agreement with Toohey J. that the information in the present case is not so incurably bad as to require or warrant a dismissal of the proceedings without more. Any defect in the information was not as to the time or place of the alleged offence, nor as to the act done by the appellant (i.e., publication of the advertisement) but consisted merely in the absence of the circumstances which made the advertisement false or misleading to the knowledge of the appellant. In my opinion, the information was sufficient in law to invoke the jurisdiction of the Court.
But in any event, s. 6(1) of the Summary Jurisdiction Act is conclusive. That sub-section operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications. Griffith C.J. stated the effect of such a provision in Hedberg v. Woodhall [35] :
Up to the end of the first half of last century innumerable objections could be taken in cases before magistrates. Then came the Acts called Jervis's Acts, which did away with many of them. One of those Acts, 11 & 12 Vict. c. 43 provides (sec. 1) that no objection shall be taken or allowed to any information for any alleged defect therein in substance or in form. That apparently means that if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits. In this respect the authority of Hedberg v. Woodhall has never been doubted. In Johnson v. Miller the correctness of Hedberg v. Woodhall on this aspect was clearly accepted by Latham C.J. 1. (1913) 15 C.L.R. 531, at pp. 534-535.
Johnson v. Miller was decided on a provision of the Justices Act 1921-1936 SA - a proviso to s. 182 - materially different from the provision considered in Hedberg v. Woodhall and materially different from s. 6 of the Summary Jurisdiction Act. Moreover, an order for particulars in Johnson v. Miller was not complied with - a course taken to permit the testing of the sufficiency of the complaint in that case. Section 182 of the South Australian Act corresponded in part with Jervis' Act 1848 (11 & 12 Vict. c. 43, s. 1), but the proviso to s. 182 departed from the model in Jervis' Act. Where Jervis' Act directed the judge to adjourn the hearing in certain circumstances on the defendant's application, the proviso directed the dismissal of an information or complaint, unless amended, if the defendant "has been prejudiced". Dixon J. drew attention to the significance of this difference [36] . His Honour agreed with Murray C.J. in the court below that there was a defect in the complaint by reason of a latent ambiguity, that the defendant had been prejudiced and held, contrary to the opinion of Murray C.J., that the complaint had been rightly dismissed by the magistrate. Dixon J. said [37] :
[Murray C.J.] considered that under sec. 182 the magistrate struck too soon, because that section authorizes the court to dismiss the information if it appears that the defendant "has been prejudiced" by the defect, words which show, his Honour thought, that the hearing must go on and that the power of dismissal could only be exercised if, after all the evidence on both sides had been taken, it then appeared that the defendant had been prejudiced. I think this view places too great a burden on the words "has been". They come from sec. 1 of 11 & 12 Vict. c. 43 (Jervis' Act), where they state the condition upon which the power to adjourn arises, a power exercisable from the beginning of the hearing. I think they are satisfied if it appears that the existence of the defect unless removed has the effect of producing a prejudice under which the defendant then lies.
I am, therefore, of opinion that the learned magistrate was justified under sec. 182 in the course he took.
Evatt and McTiernan JJ. also relied upon the proviso to s. 182 as the source of the magistrate's authority to dismiss the complaint. The power to dismiss the complaint found in the proviso is not to be found in the provision considered in Hedberg v. Woodhall nor in s. 6 of the Summary Jurisdiction Act, both of which follow the model of Jervis' Act. Evatt J. advanced a further ground for dismissal in Johnson v. Miller: he asserted that the court has an inherent power to dismiss a defective complaint, but only "as a last resort" if the prosecutor, being called on "to select his charge and particularize his complaint", fails to provide the necessary information [38] . 1. (1937) 59 C.L.R., at pp. 485-486. 2. (1937) 59 C.L.R., at pp. 491-492. 3. (1937) 59 C.L.R., at p. 498.
In the present case, Yeldham J. did not proceed beyond the point of deciding that the information and summons were incurably bad for want of particulars. Even if the information were defective, in the light of s. 6(1) - a light which was covered by the failure of counsel for the prosecutor to rely on it - the next step should have been an order for particulars. Instead of taking that step, his Honour dismissed the proceedings. In the Court of Criminal Appeal, counsel for the present respondent relied on s. 6 and was rightly allowed to do so: Adams v. Chas. S. Watson Pty. Ltd. [39] . The Court of Criminal Appeal, observing the direction in s. 6(1), held that the proceedings should not have been dismissed. That decision applied s. 6(1), conformably with an undoubted line of authority on the corresponding provision of Jervis' Act, both in this country and in England: see, e.g., Reg. v. Newcastle Justices; Ex parte John Bryce Ltd. [40] .
It is argued, however, that s. 6(1) did not apply to the present case and that counsel for the prosecutor before Yeldham J. was right not to rely upon it. The reason why s. 6(1) is said not to be applicable is that the information is said not to be "any application referred to in, or any order or warrant made or issued under, section 4 or 5". Section 4(1) speaks of "an application made by any person in accordance with the rules", i.e., the Rules of the Supreme Court. Although, as we have seen, Pt 75, r. 7 of the rules prescribes that proceedings in the summary jurisdiction be commenced by summons "claiming an order under section 4", the information in the present case was laid in conformity with the requirements of s. 56(4) of the Consumer Protection Act that proceedings including proceedings in the summary jurisdiction of the Supreme Court "be commenced by information". An information which commences proceedings is the originating process which invokes the Court's jurisdiction. It answers the description of "an application made by any person" in s. 4. But, it is submitted, it is not made "in accordance with the rules". The rules are made pursuant to a power conferred by s. 29 of the Summary Jurisdiction Act to prescribe practice and procedure. Where proceedings are commenced by information in conformity with the Consumer Protection Act, the requirements of Pt 75, r. 7 are superseded, but the rules of court otherwise apply to the originating process. The information may therefore be an application made in accordance with the rules so far as they are applicable. An information laid in conformity with the Consumer Protection Act and otherwise in accordance with the rules, especially Pt 7, r. 6 relating to the filing of originating process, is an application referred to in s. 4. Section 4 confers power to order the appearance or apprehension of defendants against whom proceedings have been commenced by application, so that, if an information laid in conformity with the Consumer Protection Act were not an application as referred to in s. 4, there would be no power to order the appearance of a defendant charged with an offence under the Consumer Protection Act.
In my opinion, it would be wrong to read s. 6(1) of the Summary Jurisdiction Act as though it applied only to those cases where the originating process invoking the summary jurisdiction is unaffected by special statutory modification of the rules of court, at least in cases where the special statutory modifications do not reveal an intention to substitute a code of practice and procedure in lieu of that otherwise remaining applicable under the Summary Jurisdiction Act and the rules of court. Section 6(1) reveals no intention of distinguishing between classes of originating process by which an exercise of the jurisdiction of the Court under s. 4 might be invoked. It follows that s. 6(1) applied to the information in the present case.
I agree with the Court of Criminal Appeal that the information was sufficient to invoke the jurisdiction of the Court. The fact that particulars were needed and that they would not be furnished until after the time limited for commencing the prosecution was immaterial: cf. R. v. Wakeley [41] . The prosecution was commenced in time. The appeal should be dismissed.
This appeal is concerned primarily with the right of the respondent, the Attorney-General for New South Wales, to have appealed to the Court of Criminal Appeal of New South Wales against orders dismissing an information, striking out a summons, and dismissing generally proceedings brought against the present appellant, John L. Pty. Ltd.
The proceedings in question were for a breach of s. 32(1) of the Consumer Protection Act 1969 NSW. That sub-section reads:
Any person who publishes or causes to be published any statement which -
(a) is intended or apparently intended to promote the supply or use of goods or services or the disposal of interests in land; and
(b) is to his knowledge false or misleading in any material particular,
is guilty of an offence against this Act. Section 56(4) of the Act reads:
(4) Proceedings for an offence against this Act (Part V excepted) shall be commenced by information but may not be commenced after the expiration of 12 months after the time when the offence is alleged to have been committed.
On 27 January 1984 John Michael Clayton, being an officer of the Department of Consumer Affairs and acting with the written authority of the relevant Minister, laid an information against the appellant that on 28 January 1983 it committed an offence against s. 32(1) of the Act:
in that it did cause to be published a statement apparently intended to promote the supply of goods, to wit motor vehicles, which statement was to its knowledge false or misleading in a material particular in that in an advertisement in the Daily Mirror on that day, it did cause to be published the following false or misleading statement: -
Australia Day Week-end holiday offer! 1,000 litres of free petrol! for every customer buying a car over $3,000.00 this week-end.
On the same day a summons was lodged in the Common Law Division of the Supreme Court on behalf of Mr. Clayton seeking an order that the appellant appear before a judge of the Court to answer to the offence alleged in the summons, an offence which was described in identical terms to those in the information. An order that the appellant so appear was made by a judge of the Court ex parte on 27 January 1984. On 27 March 1984 the appellant applied by motion for orders that the information be dismissed, that the summons be struck out and that the proceedings be dismissed generally. The notice of motion came before Yeldham J. who, on 3 May 1984, acceded to the motion and made the orders sought. In brief, his Honour was of opinion that the information was defective in failing to identify the material particular in which the advertisement was false or misleading. In his Honour's words [42] :
In the present case that would require a specification in such information of the falsity or the misleading character of the advertisement, of which the defendant allegedly had knowledge. By way of example, it is entitled to be informed whether it is alleged that no free petrol was ever available for any customer buying any car during the week-end in question; whether a lesser quantity was available to some, or to all, or to those only buying particular types of vehicles; and generally, what is claimed to have been false and what is claimed to have been misleading, to the defendant's knowledge, in connection with the advertisement . 1. [1984] 1 N.S.W.L.R. 344, at p. 351.
Mr. Clayton appealed, pursuant to s. 5C of the Criminal Appeal Act 1912 NSW, from the orders made by Yeldham J. The appeal was allowed. The Court of Criminal Appeal rejected a preliminary objection by the present appellant to the competency of the appeal, the argument being that the appeal did not fall within the language of s. 5C. The Court then upheld the contention of counsel for Mr. Clayton that if there was any defect in the information or summons through lack of particularity, s. 6 of the Supreme Court (Summary Jurisdiction) Act 1967 NSW precluded an objection being taken on that ground. Section 6(1) of that Act reads:
No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. Section 6(2) requires the judge hearing the proceedings to adjourn the hearing where it appears to him that any variance between an application or order and the evidence adduced in respect of the offence is such that the defendant has been misled and the defendant applies for an adjournment.
As a consequence of the appeal being allowed, the orders made by Yeldham J. were set aside. In its appeal to this Court the appellant submitted that s. 5C of the Criminal Appeal Act was not available in the circumstances of the case and that, it not being suggested that any right of appeal could be found elsewhere, the Court of Criminal Appeal should have upheld the objection to competency. During the hearing of this appeal the argument of counsel touched on matters to which s. 6 of the Supreme Court (Summary Jurisdiction) Act was relevant. The appellant was given leave to amend its notice of appeal to challenge the finding of the Court of Criminal Appeal in regard to s. 6 and the parties were directed to file written arguments relating to that aspect.
Before turning to s. 6 of the Supreme Court (Summary Jurisdiction) Act, it is necessary to consider whether a right of appeal existed under s. 5C of the Criminal Appeal Act. So far as is relevant, the section reads:
Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act, 1967, or any charge specified in such an application the Attorney-General may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. The appeal to the Supreme Court was in the name of Mr. Clayton, but the notice of appeal contained an endorsement which clearly was accepted as meeting the requirement of s. 5C that "the Attorney-General may appeal ".
Some reference to the relevant legislative history is advisable. Until 1979 appeals against convictions or orders made by the Supreme Court in its summary jurisdiction were made to the Court of Appeal under the provisions of the Supreme Court (Summary Jurisdiction) Act. Section 18 of that Act provided that any party to proceedings in the summary jurisdiction of the Court, "if dissatisfied with the determination by any Judge made in those proceedings as being erroneous in point of law", might apply to the judge to state a special case for the opinion of the Court of Appeal. Otherwise an appeal lay only in the case of a person convicted of an offence punishable in the summary jurisdiction of the Court or a person against whom certain orders had been made: s. 24.
Thus the only avenue of appeal for a complainant was by way of case stated in accordance with s. 18.
Act No. 96, 1979 (N.S.W.) repealed ss. 18 and 24 of the Supreme Court (Summary Jurisdiction) Act and ancillary provisions. It did so consequentially upon the enactment of the Criminal Appeal (Crimes) Amendment Act 1979 NSW. Thereafter appeals to the Court of Criminal Appeal, from the Supreme Court in its summary jurisdiction, lay under the provisions of the Criminal Appeal Act. The manner in which this was achieved was by amendment to s. 5C which hitherto had read:
Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof the Attorney-General may appeal to the Court of Criminal Appeal against the order made .
For relevant purposes the words added by the 1979 amendment were:
or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act, 1967, or any charge specified in such an application.
At the forefront of the appellant's notice of appeal was the proposition that the proceedings before Yeldham J. were not proceedings to which the Crown was a party. But that limb of s. 5C of the Criminal Appeal Act only arises for consideration if it can be said that the appeal to the Court of Criminal Appeal was not in a matter in which the Supreme Court had quashed an information. For, if the Supreme Court had quashed an information within the terms of s. 5C, the section grounded an appeal by reason of that circumstance. It is apparent that, when the matter was before the Court of Criminal Appeal, their Honours were of opinion that the case was one in which the Supreme Court had quashed an information. They added, as it were by way of supplement:
It is likewise a case where the Supreme Court in its summary jurisdiction has quashed an application under s. 4(1) of the Supreme Court (Summary Jurisdiction) Act to which the Crown was a party.
Counsel for the appellant met this argument with the submission that, on the proper construction of s. 5C, there could be no appeal from the decision of Yeldham J. unless the proceeding before his Honour was one to which the Crown was a party. This construction followed, it was argued, from the language of the section and from the relevant legislative history to which reference has been made. Before dealing with counsel's submissions, it is necessary to say something of the mechanics by which prosecutions for summary offences may be launched.
The Supreme Court (Summary Jurisdiction) Act provides that where, under any Act, proceedings for an offence may be taken before the Supreme Court in its summary jurisdiction, the Court may hear and determine those proceedings in a summary manner: s. 3(1). Upon application being made by any person "in accordance with the rules", a judge shall make an order requiring the person alleged in the application to have committed an offence to appear to answer to the offence charged or a judge may order the apprehension of any such person for the purpose of his being brought before a judge to answer to the offence: s. 4(1). An order under s. 4(1) may be made ex parte: s. 4(2). Part 75, Div. 2 of the Supreme Court Rules NSW is concerned with the summary jurisdiction of the Supreme Court. Rule 7 reads:
Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 4 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.
The summons to which r. 7 refers would seem to constitute the application spoken of by s. 4 of the Supreme Court (Summary Jurisdiction) Act. The form of summons is by way of a claim by the prosecution for an order that the defendant appear to answer to the offence stated: see Form 74a. An order then directs the defendant to appear before a judge of the Court: Form 74b. Neither the Act nor the Rules speak in express terms of an information. Reference has been made already to s. 56(4) of the Consumer Protection Act requiring that proceedings be commenced by information. Section 56(1) provides that proceedings for an offence against that Act (Pt V, "Collusive Practices", excepted) may be disposed of summarily before a court of petty sessions, an industrial magistrate or the Supreme Court in its summary jurisdiction. In each case sub-s. (4) requires an information.
At common law the laying of an information was necessary before a magistrate had jurisdiction to deal with a person summarily upon a criminal charge. In Reg. v. Hughes [43] , Hawkins J. commented:
The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment). 1. (1879) 4 Q.B.D. 614, at p. 625.
An information might be oral; writing was necessary only if a warrant was required. This was so at common law and by Jervis' Act 1848 (11 and 12 Vict. c. 43) which in England provided a general code of procedure for proceedings before magistrates: see, generally, Ex parte Walker: Re Goodfellow [44] . Under Jervis' Act, as adopted by the Australian States in their Justices Acts, it is the laying before a magistrate of an information which commences the prosecution and invests the magistrate with jurisdiction to proceed to trial: Ex parte Malouf; Re Gee [45] . In Ex parte Walker [46] the Court commented:
It is not necessary, for the existence of jurisdiction in the magistrate, that the person charged should know that he has been charged, or what it is that he has been charged with. He is, of course, entitled to be informed of this and supplied with reasonable particulars, but this is not in order to confer jurisdiction on the magistrate but in order that when the magistrate, in exercise of the jurisdiction derived from the information, proceeds to try him, he may have a proper opportunity of defending himself. 1. (1944) 45 S.R. (N.S.W.) 103. 2. (1943) 43 S.R. (N.S.W.) 195, at p. 200. 3. (1944) 45 S.R. (N.S.W.), at p. 108.
The method by which proceedings are instituted may be of some importance where, as is usually the case, legislation requires that informations, complaints and the like must be laid within a certain time: see Chinchen v. Weiss [47] . In the case of the Consumer Protection Act, proceedings may not be commenced after the expiration of twelve months after the time when the offence is alleged to have been committed: s. 56(4).
It is not clear why s. 56(4) of the Consumer Protection Act chose to require an information when s. 4 of the Supreme Court (Summary Jurisdiction) Act speaks of an application. But nevertheless it does require that proceedings be commenced by way of information and that is what was done in the present case.
But counsel for the appellant submitted that, notwithstanding the generality of the opening lines of s. 5C of the Criminal Appeal Act i.e. the reference to the Supreme Court quashing "any information", the subsequent reference to the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, quashing an application under s. 4(1) of the Supreme Court (Summary Jurisdiction) Act makes it clear that relevantly there can be no appeal from the Supreme Court in the exercise of its summary jurisdiction, except in respect of proceedings to which the Crown was a party.
That submission should be accepted. Although an information was at common law necessary to ground jurisdiction in a magistrate to deal with a person summarily, that cannot be the sense in which the word is used in s. 5C of the Criminal Appeal Act. Section 5C was introduced by the Crimes (Amendment) Act 1924 NSW, in a context which was not related to summary proceedings. It provided a means whereby the quashing of an information or indictment by the Supreme Court might be challenged on appeal. It was not concerned with what the Court might do in the exercise of its summary jurisdiction (for it then had no such jurisdiction).
The term "information", particularly when coupled with "indictment", has a long and well-understood history. It is summed up in the following statement by Hawkins J. in Reg. v. Slator [48] :
A well-defined distinction exists and has long existed between an indictment and an information. An indictment is "an accusation found by an inquest of twelve or more upon their oath" (Burn's Justice, 30th ed., vol. 3, p. 2), whilst an information is a proceeding by the Attorney General of his own motion without the intervention of a grand jury. And Bowen J. said [49] : There are two great ways of proceeding against and bringing to trial a person accused of a crime; one is by proceeding against him before a grand jury, and time out of mind that proceeding has been known as an "indictment"; the other mode is by proceeding without a grand jury upon an information, which is initiated either by the law officers of the Crown or by a private prosecutor with the leave of the Court. 1. (1881) 8 Q.B.D. 267, at p. 272. 2. (1881) 8 Q.B.D., at p. 274.
It is in that sense that "information" is used in s. 5C of the Criminal Appeal Act. Section 2(1) of that Act defines "indictment" to include " any information presented or filed as provided by law for the prosecution of offenders". That, I think, reflects the law outlined in Reg. v. Slator. It would be wrong to describe the order of Yeldham J. quashing the information in the present case as falling within the first limb of s. 5C. And, in my view, that is so notwithstanding the use in s. 56(4) of the Consumer Protection Act of the term "information". That is not an information of which the Criminal Appeal Act speaks, and it is the meaning of the term in that Act with which we are concerned.
However, I am of opinion that the appeal to the Court of Criminal Appeal was competent on the ground that the Supreme Court in its summary jurisdiction had quashed an application under s. 4(1) of the Supreme Court (Summary Jurisdiction) Act in proceedings "to which the Crown was a party".
As to the meaning of "Crown", s. 15(I) of the Interpretation Act 1897 NSW reads:
In any Act references to the Sovereign reigning at the time of the passing of such Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being. That definition is of no assistance in the present case. It cannot be the intention of s. 5C to confine the appellate jurisdiction of the Court of Criminal Appeal, in the circumstances there mentioned, to proceedings in which the Crown by that name is a party. Such a construction would rob that part of s. 5C of any operation, for summary proceedings are not commenced in the name of the Sovereign. Yet it is clear from the language of s. 3(1) of the Supreme Court (Summary Jurisdiction) Act that the Supreme Court is to have jurisdiction to hear and determine in a summary manner any proceedings for an offence that by statute may be taken before the Court in its summary jurisdiction. In Munday v. Gill [50] , Dixon J. drew attention to the distinction between summary proceedings and trial upon indictment, saying: There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. Against this background, it is unlikely that the legislature could have intended s. 5C to refer only to proceedings in which the Crown by that name is a party. 1. (1930) 44 C.L.R. 38, at p. 86.
In Town Investments Ltd. v. Department of the Environment [51] , Lord Diplock said of the evolution of the English constitution from personal rule by a feudal land-owning monarch to constitutional monarchy:
but the vocabulary used by lawyers in the field of public law has not kept pace with this evolution and remains more apt to the constitutional realities of the Tudor or even the Norman monarchy than to the constitutional realities of the 20th century. His Lordship continued [52] : But to continue nowadays to speak of "the Crown" as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves risk of confusion. I believe that some of the more Athanasian-like features of the debate in your Lordships' House could have been eliminated if instead of speaking of "the Crown" we were to speak of "the government" - a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. 1. [1978] A.C. 359, at p. 380. 2. [1978] A.C., at pp. 380-381.
The submission of counsel for the respondent, that the intention of the words of s. 5C with which we are presently concerned is that an appeal should lie where proceedings were initiated by the government (in the sense used by Lord Diplock) for what is considered to be an object of government, is well founded. In Australia such proceedings are referred to as Crown prosecutions: see Lenthall v. Hillson [53] ; Ex parte W. A. Grubb Pty. Ltd.; Re Johnston [54] ; Ex parte Browne; Re McNamara [55] .
In Lenthall v. Hillson, which was concerned with a complaint laid by a police officer under the Land Agents Acts 1925 and 1927 SA, Napier J. who delivered the judgment of the Full Court said [56] :
We have no hesitation in accepting the finding that this was a Crown prosecution - or, as we should prefer to say, a public prosecution - in the sense that it was "ordered by the Government (or by an official equivalent to the Government) for what was considered to be a public object." See Marks v. Beyfus [57] . 1. [1933] S.A.S.R., at p. 34. 2. (1890) 25 Q.B.D. 494, at p. 496.
Ex parte Browne; Re McNamara involved an information charging an offence under the Poisons Act 1952 NSW, laid by a person who was described as "an officer of the Department of Public Health". There was a challenge to the appearance of a solicitor, employed in the office of the Crown Solicitor, on behalf of the complainant. The matter was adjourned and on resumption the solicitor produced a document signed by the Attorney-General directing that the information "be continued as a Crown prosecution". The magistrate ruled that the prosecution was a private prosecution, not a Crown prosecution. The Court of Appeal held that he was wrong in so deciding. Walsh J.A. said [58] , referring to Ex parte W.A. Grubb Pty. Ltd.; Re Johnston:
I consider that this case is authority for the proposition that an information endorsed with the consent of the Minister or Attorney-General is a Crown prosecution . In my view, it is implicit in the decisions to which I have referred that proceedings taken by an officer of a government department with the authority of the appropriate Minister are proceedings to which the Crown is a party. 1. (1967) 68 S.R. (N.S.W.), at p. 194.
Section 56(1) of the Consumer Protection Act requires that proceedings for an offence against the Act (Pt V excepted) may be taken and prosecuted only by a person acting with the authority in writing of the Minister. The proceedings are thus stamped with the character of a public prosecution and may fairly be described as proceedings to which the Crown is a party.
The information in question is expressed to be laid by "John Michael Clayton an Officer of the Department of Consumer Affairs and a person acting with the authority in writing of the Minister for Consumer Affairs". No doubt the language of s. 56(1) of the Consumer Protection Act is wide enough to permit the Minister to authorize the taking of proceedings by a person who is not an officer of the Department of Consumer Affairs, but that is not in point. Proceedings may only be initiated on the authority of the Minister and, when initiated, they are proceedings to which the Crown in the sense of the government is a party.
I would uphold the respondent's right of appeal to the Court of Criminal Appeal under this limb of s. 5C of the Criminal Appeal Act. Having done so, a question then arises as to s. 6 of the Supreme Court (Summary Jurisdiction) Act. Before Yeldham J. counsel for the prosecutor disavowed any intention to rely upon s. 6, while contending that the information was not defective. Before the Court of Criminal Appeal counsel for the present respondent maintained the argument that the information was adequate but submitted as well that s. 6 concluded the matter against the present appellant. The Court accepted the argument that s. 6 was conclusive, adding that it saw "no objection to the appellant raising the point for the first time on appeal as it is entirely a matter of law". Counsel for the present appellant did not argue that s. 6 was not available to the present respondent in the Court of Criminal Appeal or before this Court by reason of the failure to rely upon it before Yeldham J. But he did contend that s. 6 was not relevant to the proceedings in question.
I do not think it is necessary to consider the implications (if any) of s. 6 in order to determine this appeal. Certainly the information lacked particularity and, if sought, particulars would have been ordered of the respects in which the published statement was false or misleading. To say that is not to say that the information is bad in substance; the distinction is made by Evatt J. in Davies v. Ryan [59] . In Smith v. Moody [60] a conviction was quashed because it failed to identify property of the respondent said to have been injured by conduct done with a view to compelling another to abstain from doing an act which that person had a legal right to do. That, broadly speaking, was the language of the statutory provision under which the appellant was charged. Underlying the reasons for judgment of the members of the court is the notion that a charge may describe an offence in the words of the statute creating the offence but still be bad in substance. In Ex parte Lovell; Re Buckley [61] , Jordan C.J. cast doubt upon the authority of earlier decisions such as Smith v. Moody, particularly those decided in statutory contexts comparable to s. 145A(1) of the Justices Act 1902 NSW. Such sections provide that the description of an offence in the words of the Act creating the offence, or similar words, shall be sufficient in law.
Whether, in the absence of statutory warrant, a complaint or information that does no more than describe an offence in terms of the Act creating the offence is defective is debatable. During argument in Preston v. Donohoe [62] , Griffith C.J. asked: "Is it not enough to follow the words of the Statute?" The point was left open by the Court in its judgment [63] , and see also Ex parte Ryan; Re Johnson [64] .
In Johnson v. Miller [65] the Court upheld the dismissal of a complaint because of the complainant's failure to provide particulars. The complaint was in terms that met the requirements of the Justices Act 1921 SA. Dixon J. said [66] :
But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v. Moody). See also De Romanis v. Sibraa [67] . 1. (1937) 59 C.L.R. 467. 2. (1937) 59 C.L.R., at p. 486. 3. [1977] 2 N.S.W.L.R. 264.
In the present case the information identified the time, place and manner in which the present appellant was alleged to have contravened s. 32(1) of the Consumer Protection Act. It failed to specify the respect in which the advertisement was false or misleading. It is true that s. 32(1) of the Act makes it an element of the offence created by that sub-section that a person publish a statement which is, to his knowledge, false or misleading in any material particular. But I do not think it follows that an information or application that sets out the statement, identifying the time, place and manner of publication, and then alleges that the statement was false or misleading in a material particular, without identifying the particular, is bad in substance. Certainly the material particular should have been identified and would be ordered by way of particulars; nevertheless, in my view, the information or application is not defective by reason of the omission. It is legally sufficient, to borrow the words of Evatt J. in Davies v. Ryan [68] . The distinction is an important one to maintain even though statutory provisions may render it of little practical importance at times.
For these reasons, it is unnecessary to deal with the appellant's submission that s. 6 of the Supreme Court (Summary Jurisdiction) Act is limited to an application, order or warrant and does not extend to an information under s. 56(4) of the Consumer Protection Act.
John L Pty Ltd
Attorney-General
High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42