Marium v Van Zuylen

Multiple CANs

1. The plaintiff's argument in relation to what she described as "multiple indictments" was that s 15 of the Criminal Procedure Act 1986 (NSW) ("the Act") defined "indictment" to include a CAN. She drew attention to s 20 of that Act which relevantly provides: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor - (a) with the leave of the court, or (b) with the consent of the accused.
2. The plaintiff submitted that no leave had been obtained by the prosecutor to amend the CAN, with the result that the only CAN which had the force of law was the first one served upon her charging her with negligent driving occasioning grievous bodily harm. She further submitted that the prosecutor was declining to indicate which of the five CANs was being pursued.
3. The only reference made to this submission in the Magistrate's judgment is found in the following passage where his Honour said: Again, in her submissions, Ms Marium said that - the Court does not accept her submissions that there were multiple charges or five. There are two charges.
4. Although the Magistrate was correct in determining that there were only two charges preferred against the plaintiff, his Honour's judgment did not deal with the submission that the plaintiff was making. Her point was not that there were only two charges, but that five CANs had been issued and that, on her construction of s 20 of the Act, no leave had been obtained by the prosecutor to amend the first CAN served.
5. Part of the problem seems to have emerged because, during oral submissions, the plaintiff appeared to alternate between whether there were two or five indictments. She was referring to them as indictments because of the definition in s 15 of the Act.
6. The transcript reads in that regard as follows: ACCUSED: Now, your Honour, whether there are two indictments or five indictments, the result is inevitably the same. I draw your attention to paragraph 3 of my summary of argument dated 27 June 2022. Your Honour, the first indictment was served on 17 April 2021 and then the second was served on 16 October 2021. The third indictment was served on 29 October 2021, and this was the second one in the span of two weeks. Fourth was served on 25 February 2022 and fifth was served on 8 April 2022. HIS HONOUR: May I just interrupt you for a moment? ACCUSED: Yes, your Honour. HIS HONOUR: I have the original charge sheets. There's only sequence 1, negligent driving occasioning bodily harm. That's what it's summarised as. 2, dangerous driving occasioning bodily harm. ACCUSED: Your Honour-- HIS HONOUR: They are the two charge sequence numbers or court attendance notices. Do you say there's a third sequence? ACCUSED: Yes, your Honour. I-- HIS HONOUR: Is there? ACCUSED: I have-- PROSECUTOR: Not to my knowledge. HIS HONOUR: Have you got one on your file? PROSECUTOR: Sequence 3 - no. ACCUSED: Your Honour, I - as I submit earlier that there was admission by Sergeant Mohid Kumar that-- HIS HONOUR: No, I just want to clarify. I'll hear you fully. Do you say there's a third sequence because there's not one filed-- ACCUSED: There are five indictments, your Honour. HIS HONOUR: No, there's-- ACCUSED: I said five and I have-- HIS HONOUR: There's only two. PROSECUTOR: There's only two, yes. HIS HONOUR: There's only two. ACCUSED: So, there are two indictments or five indictment (sic), the result is inevitably the same that it is multiple indictments. HIS HONOUR: Yes, I agree, but I just want to make sure that the multiple is two rather than-- ACCUSED: As per, as per my record and I mention in the summary of argument, I relied on my paper submitted. I have relied on my documents attached with the affidavit and the screenshots of that offence, court attendance notices in summary of argument which can, which can prove that they are all amended indictments, five of all of them are amended indictments with particulars or other details. HIS HONOUR: I only have two. The court file, can we just check JusticeLink? PROSECUTOR: There's only two on the record that I've printed as well. HIS HONOUR: There's two? PROSECUTOR: There's only two. HIS HONOUR: And you've just - yes, there's only two. PROSECUTOR: It's not actual bodily harm, it's grievous bodily harm though. HIS HONOUR: Sorry, I'm just-- PROSECUTOR: I think your Honour mentioned actual bodily harm. HIS HONOUR: Yes, sorry. I read the continuation sheet, but I've got two charge sheets, two court attendance notices. You've only got two charges. I agree it's a multiple but it's two, isn't it, it's not five. ACCUSED: Yeah, my ground is multiple indictments, your Honour-- HIS HONOUR: Yes, I accept that-- ACCUSED: --and I rely on my submissions. HIS HONOUR: --that's your argument but it's only two. Do you agree with that or not? ACCUSED: No, your Honour. HIS HONOUR: Well, where's your evidence that it's more than two? ACCUSED: I have attached all the evidence in my affidavit with all the court attendance notices I have received in five different events. PROSECUTOR: You've got two court attendance notices, not five, two. ACCUSED: I have five court attendance notice. PROSECUTOR: Can you show me five? ACCUSED: I have attached in the affidavit. HIS HONOUR: No, please don't argue. PROSECUTOR: Sorry. HIS HONOUR: Yes, all right, please continue. ACCUSED: So, your Honour, I'm heavily prejudice (sic) when it comes to taking a plea or preparing a defence to the case against me at committal or at any hearing when prosecutors continue to serve indictment without any regards to law. All of the offences originate from single event, and one involve negligence, another involve dangerous driving. I rely on my summary of argument dated 27 June 2022, paragraph 14 and 15 to argue that it is abuse of process to seek plea for multiple offences in a same trial.
7. The other likely reason for the plaintiff and the Magistrate being at cross-purposes was her belief, which the Magistrate was unlikely to have held, that CANs needed to be amended. A great deal of the difficulty about this aspect of the plaintiff's case arises from the fact that s 15 of the Act provides: 15 Application of Part … (2) In this Part - indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.
8. The terms of s 20 of the Act raise the question whether that section was intended to apply other than to indictments per se, by reason of the expansive definition in s 15. In the first place, it can be accepted that s 20 falls within "this Part", that is, Part 2 of Chapter 2 of the Act. However, the term "court attendance notice" appears in other parts of the Act where the expanded definition of "indictment" does not apply. Both Committal proceedings (s 47 in Chapter 3 dealing with Indictable procedure) and Summary proceedings (s 172 in Chapter 4) commence by a CAN. There is nothing in those parts of the Act which prevents further CANs being issued after the first one. Indeed, what in fact happened in the present case is that a second criminal proceeding was commenced by the issuing of the second CAN which charged a separate, albeit, related offence, namely, dangerous driving occasioning grievous bodily harm.
9. Nor is there any limitation in those parts of the Act (Chapter 3 being the relevant one here) about issuing further CANs which have the effect of amending or replacing a CAN already issued and served.
10. Despite s 15, the provisions of s 20 are inapt to be referring to other than an indictment in the true sense of the term. That is because CANs are never "presented" as true indictments are, and as s 20 envisages. There is a further indication within Part 2 of Chapter 2 that where the term "indictment" is used, it must be referring only to a true indictment, despite s 15. Section 17 provides: 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.
11. The procedure described in s 17 (and s 18 which is related) is one that only concerns an indictment, the presentment of which commences a trial. Such a procedure does not apply to CANs.
12. In Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240, Basten JA (Allsop P and Macfarlan JA agreeing) said at [40]: Not all provisions in Ch 2, Pt 2 of the Criminal Procedure Act are equally apt to apply both to summary proceedings and to indictments presented before juries. His Honour did not identify which provisions he had in mind, but ss 17, 18 and 20 are likely to have been the provisions to which his Honour was referring.
13. As a matter of general criminal practice, a CAN may be "amended" or replaced at any time before a trial by the issue of a new CAN without any leave being needed. Section 20 does not provide otherwise, nor does it prevent that occurring. As I have noted earlier, nothing in Chapters 3 and 4 dealing with CANs provides otherwise nor prevents that occurring.
14. The Magistrate did not deal with the plaintiff's argument, probably for the reasons I have given. However, nothing flows from that, because the plaintiff's argument is misconceived. No leave was necessary.
15. If I am in error in holding that the prosecutor was entitled to issue further CANs, whether by way of amendment, or in substitution for earlier CANs, what must be determined is the effect of such a failure on the part of the prosecutor to seek leave to amend. Part of that consideration would be whether, if leave was now sought to amend them, leave would be granted. Ultimately, the question on this issue is whether the proceedings should be permanently stayed because leave had not been obtained.
16. In Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83, the question for determination was the adequacy of a CAN used to initiate summary criminal proceedings in the Local Court, and the effect of an inadequacy in that CAN upon the validity of a conviction in the proceedings. What was contended was that the CAN did not "briefly state the particulars of the alleged offence" as s 175(3)(b) of the Act required.
17. Campbell JA (with whom Mason P and Tobias JA agreed) said: [32] The fact that a statute that prescribes a mode of carrying out some action has been contravened does not necessarily mean that, in the eyes of the law, that action has not been carried out or is a nullity. In Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ considered the validity of a purported decision by an administrative body that was arrived at in contravention of a particular legislative requirement. At 388-389, [91] their Honours said: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition." [33] Their Honours went on, at 389-390, [92]-[93] to disapprove the distinction that had traditionally been made between mandatory and directory provisions in statutes, concluding, at 390-391, [93]: "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute": Tasker v Fulwood [1978] 1 NSWLR 20 at 24. [34] While Project Blue Sky shows that failure to comply with a legislative requirement that some act must be done in a particular way does not always result in a failure, in the eyes of the law, to perform that act, there are particular considerations that relate to legislative provisions concerning the manner in which the jurisdiction of courts (as opposed to administrative bodies) is exercised or invoked. In Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 228 ALR 387 the majority judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at [10], 389, pointed out that saying that an administrative decision reached without compliance with a statutory requirement was "invalid" or a "nullity" involved "statements of conclusion which are not necessarily helpful in resolving the rights of parties", and that "Dangers are equally present in the context of proceedings in, and acts and orders of, courts." [35] In Berowra Holdings at [13]-[16], 390-391 their Honours said: "[13] There also is a very real difficulty in characterising proceedings as "invalid". The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules. [14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court. [15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is, in law, no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it. [16] None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction." (footnotes omitted) … [39] The requirement created by section 175(3)(b) is an imperfect obligation, in the sense that it does not make express provision for the consequences of failure to comply with it. Nothing in the statute states that proceedings purportedly commenced without complying with section 175(3)(b) will be invalid or a nullity or in any other way of no effect. Thus, it is only if there is a necessary implication to that effect that such a consequence will arise. [40] In a situation like the present, where it is not alleged that the CAN fails to identify all the elements of an offence, I do not find in the statute any necessary implication that any failure of the CAN to "briefly state the particulars of the alleged offence" should result in either the CAN, or a conviction in proceedings begun by the CAN, being void.
18. It is clear that the plaintiff is in no doubt about the case she has to meet. As she said to the Magistrate: All of the offences originate from [a] single event, and one involve negligence, another involve dangerous driving.
19. The plaintiff also submitted that seeking a plea for multiple offences is an abuse of process when it originates from a single event such as in her case. The prosecutor made clear at the hearing before the Magistrate, if it had not been made clear earlier, that the charge of negligent driving was a back-up charge to the count of dangerous driving. The preferment of two charges in that manner does not constitute an abuse of process. The plaintiff accepted in her written submissions that sequence 2 was the principal offence and sequence 1 was the back-up offence. Hence, she abandoned prayer 5 in the summons.
20. Although the first CAN charged her only with negligent driving causing grievous bodily harm, it has been clear from the time of service of the second CAN, and certainly from the brief that was served in February or March 2022, that she was facing those two charges. The different wording in the CANs only arises because a greater degree of particularity has been included in the successive CANs. There could be no basis for a refusal to amend the first CAN to the last form of the CAN if such an application was necessary and was made. Until it was made (if it was so required), the proceedings are not defective or a nullity. Nor are they are an abuse of process.
21. In Belkheir v Director of Public Prosecutions (NSW) [2023] NSWSC 1233, Wilson J said: [79] A stay of a criminal prosecution is an extremely rare remedy, granted only in the most extraordinary of circumstances. That is because there is an overriding public interest in seeing allegations of criminal conduct determined by a court and determined expeditiously. The applicable principles are well established. For a permanent stay of a criminal prosecution to be granted, there must be a fundamental defect going to the root of the trial such that nothing a trial judge could do would relieve against the unfairness occasioned to the accused: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 at 111; Jago v The District Court of New South Wales (1989) 168 CLR 239; [1989] HCA 58 at 34; The Queen v Glennon (1992) 173 CLR; [1992] HCA 16 592 at 605; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at 245. Underlying the power of the court to grant a permanent stay is the court's inherent jurisdiction to prevent an abuse of its process, as was observed by Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482: "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor [...] that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court." [80] That formulation of the principle was cited with approval by Mason CJ in Jago at 30. [81] Since the categories of circumstances that will demand a stay of proceedings is not closed, it is necessary to evaluate the particular circumstances relied upon by the plaintiff, weighed in the context of the multifaceted public interest considerations that apply, including the maintenance of public confidence in the administration of the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 395-396; Dupas at 251 [37]. The public interest in ensuring that those charged with criminal offences, particularly serious crimes such as sexual assault, will face trial is a very significant feature to be considered in that evaluative process. In Darwiche v R [2011] NSWCCA 62, the process was described at [172] thus: "A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law, and the public interest in ensuring that persons charged with crimes are tried ought to carry significant weight in the necessary balancing process where a stay is sought: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56]; Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 251 [37]. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529. The question of whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice": Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396.
22. There was no abuse of process constituted by the service of five successive CANs which had the effect of adding one charge which arose from identical facts to the first charge preferred, and thereafter from clarifying and adding to the particulars contained in the CAN. It does not constitute a fundamental defect going to the root of the trial. This first basis upon which the application for permanent stay was brought should be rejected.

Lack of particulars

1. The second basis upon which a permanent stay was sought was said to be the inadequacy of the particulars. A related argument concerned the question of whether the injury sustained by Ms Galbraith was capable of amounting to grievous bodily harm. The plaintiff submitted that: a. There are no particulars for negligence. b. There are no particulars for Grievous Bodily Harm. c. There are no particulars for the manner of driving. d. There are no particulars of multiple fractures sustained by the victim.
2. Although the complaint about inadequate particulars appeared under a heading in the plaintiff's Summary of Argument before the Local Court "Executive abuse of power", and despite the Details of the Decision section in the summons identifying the prosecutor as the decision maker to prosecute with inadequate particulars, I shall regard the submission as being directed to the alleged failure of the Magistrate to stay the proceedings when the particulars were inadequate. In the summons, the plaintiff challenges the second defendant's "decision to prosecute", but such a decision is not amenable to judicial review: Maxwell v The Queen (1996) 284 CLR 501; [1996] HCA 46 at 534; Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [37].
3. Further, the complaint about the inadequacy of particulars appears to have been connected by the plaintiff to her submission that the only CAN which was before the Court was the first. In the details of offence in the first CAN the following appeared (omitting the statutory provision): Negligent driving (occasions grievous bodily harm) - first offence Between 4:13pm and 4:15pm on 25/10/2020 at Rouse Hill. Did negligently drive a motor vehicle, to wit, AP146E upon a road, to wit, Windsor Road, Rouse Hill.
4. The portion of the Magistrate's judgment that made the determination concerning particulars was this: She says that it is a willful (sic) abuse of process. She has not been given sufficient particulars. She points to the 500 years of history in courts whereby a process should be strictly complied with, and this Court should hold that it is an abuse of process that the Court has no jurisdiction. It is an incomplete indictment. The fact sheet is defective. She refers to racism, a white person as a victim and the Court being biased. The prosecutor opposes the stay. He tendered the brief on the application. Now, Ms Marium in her submission, Wilson js (sic) has also relied on her various - she has made a great deal of - a number of written submissions in relation to this and other aspects of the case. … She relies on her affidavit of 27 June, again attached a lot of material to it, again complained of refusal of the prosecution to provide access to evidence that has been withheld. She complained that there was no woman constable in the police station on the last occasion. "I do not feel comfortable going back to the same environment where I felt very uncomfortable the last occasion." She complained about her treatment because she is from Afghanistan. She complains about Mark Darley's false allegations. She complained that there were multiple court attendance notices served on her, a failure to provide particulars of negligence, particulars for grievous bodily harm, particulars of manner of driving, particulars of multiple fractures. She cannot prepare a defence without this material. I have read and considered all the other written material that Ms Marium has referred to. Now, the prosecutor did tender a fact sheet. There is no finding that the court attendance notices have been filed correctly (scil. incorrectly?). There is a fact sheet. The allegation refers to Windsor Road, Rouse Hill. It is an 80k zone. I am just summarising it. It is six pages, the fact sheet. It describes what an alleged witness saw, observed. The allegation, page 3, last paragraph: "On approach to the intersection of Windsor Road and White Hart Drive, the accused was faced by a red light. The victim had a green arrow to turn across the path of the accused. The victim proceeded through the green arrow to turn from Windsor Road into White Hart Drive. The witness began to turn left into Windsor Road which would be in the path of the accused. The accused was observed not stopping for the red light, proceeded through at a speed of 70 kilometres an hour and proceeded. The front of the accused's vehicle collided heavily with the front of the victim's vehicle, caused airbags to deploy, the vehicle spun 180 degrees to face north. The vehicle was affected by the collision, continued driving. The accused's vehicle coming to stop in the turning lane, White Hart Drive and Windsor Road. Members of the public assisted both parties. The witness immediately attended to the accused's vehicle. The witness noticed that the accused had food all over her that appeared to be noodle or rice soup. The victim complained of a sore shoulder." This is the accused had food all over her. "Police attended, highway patrol. Ambulances attended." There is information about X-rays, needs surgery on her clavicle, had a plate and screws inserted into her clavicle. "Police will allege the manner of driving of the accused was manifestly negligent. The accused approached the intersection faced with a red light at which police will allege the accused did not stop at contrary to her version and she was eating at the time of the incident." That is the allegation. Now, the Court has got a brief of evidence, a quite thick document. Again, the fact sheet is in that. There are a number of photographs. There are hospital records. There is a lengthy record of interview said to be with Marium Marium. There is a statement of Lindall (sic) Galbraith(?), the alleged victim. There is a handwritten statement here of the alleged witness, Renee De Pares(?). It is in reasonably legible handwriting. There is a comment made. "Oh shit, that car is not going to stop, quickly pressed his brake. I saw a blue vehicle in the middle of the intersection and a white Volkswagen Golf start spinning to the right." That is the evidence of the eyewitness. In the Court's view without in any way making any comment whatsoever on the guilt or innocence of Ms Marium, the Court is persuaded that there have been very extensive particulars as to the alleged offence. Negligent driving and dangerous driving, there are different elements to an allegation of negligent driving and dangerous driving. The two charges attach to an incident alleged of going through a red light, colliding with an alleged victim, and causing her alleged grievous bodily harm. That is set out. The particulars are set out. The eyewitness statement has been provided to the defendant. The alleged victim has provided a statement. There are hospital records. There are photographs. In the Court's view, there has not been insufficient details provided as to what the alleged offence is.
5. The plaintiff submitted that the Magistrate improperly endorsed the Fact Sheet as an acceptable alternative to providing particulars of the offence. She submitted that it was crucial to distinguish between facts and particulars. The plaintiff submitted, without a shred of evidence, that she suspected racial bias might have been at play in what the Magistrate did.
6. The plaintiff submitted that there were no particulars establishing that Ms Galbraith had suffered from grievous bodily harm. She drew attention to what was contained in the expert's certificate of Ms Galbraith's treating doctor, Dr Mohammed Baba, that she was unlikely to have significant deformity or dysfunction of the shoulder as a result of the fracture and/or the procedure.
7. Section 50 of the Act stipulates the form of a CAN. That section provides: 50 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following - (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
8. Section 175 is in relevantly similar terms.
9. Section 3 of the Act provides that rules means rules made for the purposes of a court to which the relevant provision applies. The only relevant rule in the Local Court is r 3.11 of the Local Court Rules 2009 (NSW) which provides: 3.11 Commencement of proceedings (1) For the purposes of section 175(1) of the 1986 Act, a court attendance notice commencing proceedings for a summary offence is to be in the approved form. (2) For the purposes of section 175(4) of the 1986 Act, the court attendance notice must include the following matters - (a) the time and date of the alleged offence or, if the exact time and date are not known or the alleged offence occurred over a period of time, the period of time during which the offence is alleged to have occurred, (b) the place where the offence is alleged to have occurred.
10. All that ss 50 and 175 of the Act require is that the CAN "briefly state the particulars of the alleged offence". In Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, Dixon J said at 486 that it was necessary to specify "the time, place and manner of the defendant's acts or omissions". What is contained in the latest CAN does all of that and more. It identifies precisely the time and date, precisely the location being the intersection of the two streets, what the plaintiff was alleged to have done that constituted the offence, and the identification of the harm suffered by the victim. All of those matters were evident, in any event, from the Facts Sheet, in the brief of evidence that had been served long before the proceedings before the Magistrate. Although the Magistrate relied upon the Facts Sheet to set out what the defendant was informed of, he was not thereby confusing facts and particulars. Particulars, in any event, are facts themselves. The plaintiff may be confusing the issue of where evidence is pleaded in lieu of material facts and/or particulars in civil matters.
11. Contrary to the plaintiff's submission, the particulars provided in the CAN entirely comply with the principles and matters discussed in Johnson v Miller.
12. What is contained in the CAN provides adequate particulars of grievous bodily harm. Grievous bodily harm is defined in s 4 of the Crimes Act 1900 (NSW) as follows: Grievous bodily harm includes - (a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
13. The question of whether a victim in a criminal trial has suffered grievous bodily harm is a factual determination for the jury to make. It is not something for a court to decide in advance of a trial. If the injuries suffered by Ms Galbraith in the present case are found by the tribunal of fact (here, a magistrate determining the offences summarily), the prosecution will fail to establish that the offences as charged have been committed. The decision by the magistrate can only be made when all of the evidence has been heard, and not in advance of the trial, based on the words in a medical certificate or report.
14. No error of law has been demonstrated in relation to the Magistrate's determination that adequate particulars have been provided. The plaintiff demonstrated no basis for a permanent stay of the proceedings before the Magistrate and there was no error in the Magistrate's determination that such a stay should not be granted. The present summons should be dismissed.
15. The accident that led to the charges occurred in October 2020. The plaintiff was first served with a CAN in April 2021. It is entirely unsatisfactory that the offences charged have not been heard. They have been delayed by two applications to this Court by the plaintiff with substantial delays occurring.
16. In Belkheir, Wilson J said: [92] [T]here is the long line of authority which militates against interference in the conduct of criminal prosecutions, because of the legitimate concern as to the dangers of fragmenting the criminal justice process. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P summarised, at 599-600, the principle in this way: "The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings." [93] The importance of this principle has been stressed in many other decisions of the higher courts, including Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373; Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 at [7]-[12]; Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162; and Woodhouse v Director of Public Prosecutions [2015] NSWCA 40. The harm potentially done by undetermined criminal allegations, and the strong public interest in the expeditious finalisation of such matters, was emphasised in Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501: "The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight …"
17. It is highly desirable that the charges be fixed for hearing in the Local Court at the earliest opportunity.

Conclusion

1. I make the following orders:
2. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) I remove the third and fourth defendants as parties to the proceedings.
3. Dismiss the second defendant's notice of motion filed 16 June 2023.
4. Dismiss the summons.
5. The plaintiff is to pay the second defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2024