KNAGGS v DIRECTOR OF PUBLIC PROSECUTIONS

Autodesk Inc v Dyason (1993) 176 CLR 300 Johnson v Miller (1937) 59 CLR 467 CASES CITED: Knaggs v Director of Public Prosecutions [2007] NSWCA 83 Smith v NSW Bar Association (1992) 176 CLR 256 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29

PARTIES: Douglas Knaggs - Claimant Director of Public Prosecutions - Opponent

SOLICITORS: Douglas Knaggs - Applicant Director of Public Prosecutions - Opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40587/06

MASON P TOBIAS JA CAMPBELL JA

4 September 2007 DOUGLAS KNAGGS v The DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 THE COURT: The Court delivered judgment in this matter on 11 April 2007: Knaggs v Director of Public Prosecutions [2007] NSWCA 83. The proceedings then before the Court had been commenced in the Administrative Law Division of the Supreme Court, but had been removed into the Court of Appeal by order of Sully J. In broad terms, the proceedings arose from Mr Knaggs having been convicted before a Magistrate of an offence of assault occasioning bodily harm. He had failed in an appeal to the District Court against that conviction. His principal contention in the Supreme Court proceedings was that the proceedings before the Local Court had not been commenced by a valid Court Attendance Notice ("CAN"). He submitted that in consequence the proceedings themselves, the convictions recorded in them, and the subsequent appeal to the District Court, were nullities and should be quashed. 2 The orders the Court made on 11 April 2007 were: (1) Summons dismissed.

(2) Claimant to pay costs of the Opponent. 3 There is presently before the Court a Notice of Motion filed by Mr Knaggs on 29 May 2007 that seeks orders: "1. That the Court set aside its decision of 11 April 2007. 2. That the Court hear the Amended Summons filed 3 October 2006." 4 Mr Knaggs' claim for those orders are based on two separate grounds. These are, in summary:

1. The earlier decision failed to consider fundamental aspects of the argument put forward by Mr Knaggs, with the consequence that his contentions have not in reality been dealt with.

2. The operative process that was before this Court at the time of the hearing that led to the judgment was not the summons that had initiated the Supreme Court proceedings, but rather was an amended summons, and that amended summons has never been dealt with. 5 Where an error arises from an accidental slip or omission, the Court has power under rule 36.17 Uniform Civil Procedure Rules 2005 to correct the error. However, Mr Knaggs submits that the Court has made errors too gross to be corrected under the slip rule. Rather, he relies on the inherent jurisdiction of the court to avoid injustice in the working of its own procedures. Further, the orders made on 11 April 2007 have not been perfected by entry of the judgment. Thus, UCP Rule 36.16 confers upon the Court an alternative source of power to set aside or vary the judgment. 6 There are limits on when it is appropriate to exercise the power under UCP Rule 36.16 (eg State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45; Smith v NSW Bar Association (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (1993) 176 CLR 300 at 301-302, 308, 317, 322). Similar limits apply to the inherent power. Rather than examine those limits, we will turn straight to whether, on the merits, there is any justification for granting the orders sought.

Failure to Consider Arguments Put 7 One of the contentions that Mr Knaggs had made, in the submissions that led to the judgment of 11 April 2007, was that a failure to identify, through particulars in the CAN, the "essential factual ingredients of an offence" was so fundamental a breach that it was not a true CAN as required by sections 173 and 175 Criminal Procedure Act 1986. It followed, he submitted, that it was not the type of entity on which section 16(2)(a) Criminal Procedure Act could operate, as section 16(2)(a) must as a matter of construction be speaking only of a valid CAN. 8 On the present application, Mr Knaggs points out that the judgment of 11 April 2007 said, (at [48]): "It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void."

Mr Knaggs submits that para [48] of the judgment shows that his argument has not been dealt with. We do not agree. 9 Section 175(3)(b) Criminal Procedure Act provides that a CAN "must" "briefly state the particulars of the alleged offence". 10 The judgment summarised (at para [25]) the general thrust of Mr Knaggs' submissions: "The claimant accepts that the CAN with which he was served complies with the requirements of section 175(3)(a), and (c)-(e) Criminal Procedure Act , and also with section 175(4). However, he contends that it does not "briefly state the particulars of the alleged offence" , as is required by section 175(3)(b). In consequence, he submits, it is a nullity, it is ineffective to commence any proceedings, and his conviction is likewise a nullity. Hence, he submits, his conviction should be quashed." 11 The judgment recognised that there were certain arguments that Mr Knaggs had presented that were not dealt with. It said (at para [27]): "The claimant presented various arguments why we should conclude that the CAN did not comply with section 175(3)(b). Rather than consider the detail of those arguments, I shall assume, without deciding, that the CAN with which the claimant was served did not "briefly state the particulars of the alleged offence" , and thus contravened section 175(3)(b) Criminal Procedure Act 1986 . On that assumption, the question then concerns what the effect of such a contravention is."

In other words, the reason why the Court did not consider those particular arguments of Mr Knaggs was because it assumed them in his favour. 12 The judgment went on to give reasons why a CAN was valid even if section 175(3)(b) was not complied with. The passage in para [48] of the judgment that is set out earlier is part of those reasons. The first sentence of the passage set out from para [48] recognises a possibility that there might be deficiencies in a CAN so gross that section 16(2)(a) could not cure them. Having recognised that possibility, it was not gone into as a general proposition, because it was not the full range of possible deficiencies in a CAN that the instant case was concerned with. Rather, the instant case was concerned with a CAN that identified all the elements of the offence, and where the alleged source of invalidity was a failure to provide the particulars required by section 175(3)(b). 13 The precise argument that Mr Knaggs complains was not dealt with, was in fact dealt with explicitly in para [49] of the judgment: "The claimant argued that section 16(2) had no application in the present circumstances, because it applies only to "any indictment" (including in that expression the extended meaning of "any CAN" ) and, because section 175(3) sets out what a CAN "must" do, any CAN that fails to comply with section 175(3) was not the type of entity to which section 16(2) could apply. I do not accept the correctness of that process of reasoning. The exercise I am presently engaged in is one of deciding whether a failure to comply with one or other of the requirements of section 175(3) renders void the CAN and any resultant proceedings. The argument that the claimant advances already presumes the answer to that question by asserting that section 16(2) applies only to valid CANs, and hence not to a CAN that breaches any of the requirements of section 175(3). Rather, the task of construction that should be performed is one that involves construing the whole statute." 14 The portion of the judgment from paras [28]-[83] gave detailed reasons why, as a matter of construction of the statute, and its legislative purpose and history, a failure to provide particulars as required by section 175(3)(b) did not render the CAN void. Conclusions to that effect were stated at [60] and [83] of the judgment. 15 Mr Knaggs' submission that his argument was not dealt with is incorrect. 16 A subsidiary ground of complaint of Mr Knaggs is that his written submissions had included the statement "The same result (that s 16(2) doesn't apply) is reached via generalia specialibus non derogant CS [Claimant's Submissions] 9.4 and Smith v The Queen", and that that argument was not dealt with. 17 The obligation of a court is to consider the arguments put, and give its reasons for judgment. There is no requirement, when a court gives reasons for judgment, to deal with every detail of argument that has been presented, or to discuss or refer to every case to which the Court has been referred. Rather, the obligation is for the reasons for judgment to expose the essentials of its own reasoning process. In the present case, the Court has engaged in a detailed construction of the particular statutory provisions, their history and policy. Failure to mention explicitly a four-word Latin maxim that the Court did not find helpful in the present case, in no way vitiates that reasoning process, or calls for any further hearing of the matter. 18 The maxim was not helpful in the present case because it is not an invariable rule that a particular provision in an enactment always overrides a general one. Rather, treating a particular provision as being subject to a more general one, sometimes (but not always) provides a way in which a statute can be read as a whole, if it contains two provisions that appear to be in conflict with each other. But always, the fundamental task in statutory construction is to ascertain the meaning of the particular provision that is in dispute, in light of the statute as a whole, its history and purpose. It is precisely that task that the judgment carried out. 19 In his submissions on the present motion, Mr Knaggs also placed reliance on the High Court decision in Johnson v Miller (1937) 59 CLR 467. That decision had also been referred to in his submissions that led to the judgment of 11 April 2007. The judgment of 11 April 2007 referred to it (at [70] and [71]), though not as authority for the proposition Mr Knaggs sought (both then and now) to draw from it, namely that an information must include particulars of the offence. That was because it was not in doubt that a CAN must include particulars - section 175(3)(b) said as much. The question with which the judgment of 11 April 2007 was concerned was whether the consequence of failure to comply with that "must" was that the CAN and the proceedings it began were nullities. 20 Johnson v Miller related to South Australian legislation derived from, but not identical to, Jervis' Act 1848. It concerned an information that laid an ambiguous complaint (486, 502) concerning which the prosecutor refused to provide particulars. The particulars related to a topic concerning which the alleged offender needed to know what the prosecutor's case would be if the alleged offender was to be in a position to seek to make out certain statutory defences. The Magistrate thereupon dismissed the information. The question at issue was whether the Magistrate had acted correctly in so doing. 21 A majority of the High Court held that the Magistrate had acted correctly. The particulars concerned were ones that the alleged offender had requested, and that the court regarded as necessary to be provided if a fair trial was to occur. Further, the South Australian statute in question gave a Magistrate power to dismiss an information if the information did not disclose the matter of complaint (485-486). In those circumstances, the result that the High Court came to is, with respect, hardly surprising. However, the case simply does not deal with the question of whether the proceedings before the Magistrate were a nullity, prior to their dismissal, or would have been a nullity if no application for particulars had been made. There is a fundamental difference between an information (or a CAN) being deficient in a way that would lead a court, if asked, to order that further particulars be provided (and perhaps stay or dismiss the proceedings if the particulars are not provided), and an information (or a CAN) being a total nullity. The decision of 11 April 2007 is one that has taken Johnson v Miller into account, and is not contrary to it. 22 No fundamental argument of Mr Knaggs has been overlooked by the decision of 11 April 2007. There is no occasion for further argument concerning it.

Dismissal of the Wrong Process 23 For the purpose of considering this contention, the Court file was examined. Because the proceedings were commenced in the Administrative Law Division, but referred to the Court of Appeal, that file covers the proceedings in both the Administrative Law Division and the Court of Appeal. 24 The summons filed in the Administrative Law Division named the parties as "plaintiff" and "defendants". It named six defendants - the Magistrate who heard the case, the Commissioner of Police, his Honour Judge Hosking, the Director of Public Prosecutions NSW, the District Court of NSW, and "the Local Court, Downing Centre Sydney". The substantive orders it sought were: "O1. Orders in the nature of Certiorari and Prohibition quashing the purported conviction and orders made by the first defendant Magistrate Feund LCM, sitting in the Local Court Downing Centre Sydney on 27 and 28 February 2006, convicting the plaintiff of Assault Occasioning Actual Bodily Harm and sentencing him ('the Local Court Orders'). O2. Orders in the nature of Certiorari and Prohibition quashing the purported conviction and orders made by the third defendant his Honour Judge Hosking SC DCJ, sitting in Sydney on 3 July 2006, (which Orders confirmed the Local Court Orders). ('The District Court Orders') O3. In the alternative to O1 and O2, Order in the nature of Mandamus under S 65 and/or S 69 of the Supreme Court Act ordering the Fifth Defendant, the District Court, to rehear the Plaintiff's appeal from the Local Court Orders. O4. Declaration that the Local Court Orders were ultra vires and without jurisdiction and so invalid and vitiated. O5. Declaration that, further, the District Court Orders were: O5.1 ultra vires and without jurisdiction and O5.2 biased or gave rise to an apprehension of bias and so invalid and vitiated. PARTICULARS: ULTRA VIRES AND WITHOUT JURISDICTION The proceedings and orders are invalid because the purported Court Attendance Notice is defective and invalid in that it does not comply with Ss 172 and 175 of the Criminal Procedure Act, failing to briefly state the particulars of the alleged offence. Nor does it follow the prescribed form in this regard." 25 The amended summons filed 3 October 2006 named the parties as "claimant" and "opponents". It named only two opponents, namely the Director of Public Prosecutions NSW, and the District Court of NSW. The substantive orders it sought were: "O1. Orders quashing the purported conviction and orders made by the second opponent per HIS HONOUR JUDGE HOSKING SC DCJ on 3 July 2006, and the conviction and orders by the Local Court Sydney on 28 February 2006 and 11 April 2006. O2. In the alternative to O1, if the Court holds it cannot or should not without more quash the claimant's conviction, Order in the nature of Mandamus under s 65 or s 69 Supreme Court Act ordering the Second Opponent to rehear the Claimant's appeal from the Local Court Orders. O3. Declaration that the proceedings below and the District Court Orders were: O3.1 ultra vires and without jurisdiction and O3.2 biased or gave rise to an apprehension of bias and so invalid and vitiated. PARTICULARS: ULTRA VIRES AND WITHOUT JURISDICTION The proceedings and orders are invalid because the purported Court Attendance Notice ('CAN') is defective and invalid in that it does not comply with a) the approved form of CAN; b) the common law and ss 172 and 175 of the Criminal Procedure Act, failing to briefly state the particulars of the alleged offence, being particulars of the manner in which the offence was alleged to have been committed. O4. Declaration that the claimant in the circumstances was prejudiced or may have been prejudiced in and about his defence of the proceedings below." 26 Thus, it can be seen that orders 1 and 3 sought in the amended summons were within the scope of the original summons, while orders 2 and 4 were not. 27 The judgment of 11 April 2007 set out (at para [10]) the orders sought in the original summons. Thereafter, the judgment proceeded to consider the questions of principle involved in whether the CAN was valid, and whether the hearing before his Honour Judge Hosking was vitiated by bias. It reached conclusions unfavourable to Mr Knaggs on each of those topics. 28 Proceedings in the Court of Appeal on an application such as the one determined by the judgment of 11 April 2007 are conducted using an application book that contains copies of the papers most immediately relevant to the application. The application book for the application now under consideration contained the amended summons, but did not contain the original summons. It was necessary to go to the file to obtain the original summons, for the purpose of setting it out in para [10] of the judgment. There is no doubt, however, that the amended summons was before the Court, and was considered by the Court. 29 Further, when the Supreme Court (and hence the Court of Appeal) could supervise the conduct of the proceedings in the Local Court and in the District Court only by orders in the nature of prerogative orders, and the declaration sought in order 4 would clearly be inappropriate without consequential relief, orders 2 and 4 in the amended summons depended upon the same arguments as did orders 1 and 3. Rejection of orders 1 and 3 thus necessarily led to rejection of orders 2 and 4. 30 The intention of the orders made by the Court was to dismiss Mr Knaggs' application. The language that is used in the procedural provisions governing dismissal (section 91 Civil Procedure Act 2005; rules 12.8, 13.4, 29.8, 29.9 UCP Rules) talks of dismissal of "proceedings", rather than dismissal of a particular process (such as a summons) in proceedings. For the avoidance of doubt, and to give effect to the Court's intention, the first order made on 11 April 2007 should be corrected under rule 36.17 UCP Rules to read "proceedings dismissed".

(1) Order 1 made 11 April 2007 be amended to read, "Proceedings dismissed" .

(2) The Notice of Motion filed 29 May 2007 is dismissed with costs. **********

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