Power v Heyward & Ors

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - CRIMINAL PROCEEDINGS - DISCRETION OF COURT - where the applicant sought a declaration that the prosecution commenced by complaint and summons out of time - where the applicant sought a permanent stay of proceedings

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - CRIMINAL PROCEEDINGS - whether a Magistrate can determine incidental or preliminary questions of law or fact before evidence is adduced in a trial

Justices Act 1886, s 83A, s 145, s 146, s 146(1), s 148,

Local Government Act 1993, s 430, s 436, s 436(4), s 1080

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited

Attorney-General v Otahuhu District Court [2001] NZCA 187; [2001] 3 NZLR 740, considered

Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395, cited

Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, cited

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, cited

DPP v Lewis [1997] 1 VR 391, cited

DPP v Shirvanian (1998) 44 NSWLR 129, followed

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, followed

Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565, applied

Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421, followed

Leach v The Queen [2007] HCA 3, considered

M v M [1993] VicRp 29; [1993] 1 VR 391, followed

Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265, cited

O'Toole v Scott [1965] AC 939, cited

Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, considered

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, cited

Police v Turbitt [2005] SASC 303; (2005) 92 SASR 480, considered

R v Cooling [1990] 1 Qd R 376, cited

R v Long (No 1) [2001] QCA 318; [2002] 1 Qd R 662, cited

Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, cited

Seymour v Attorney-General [1984] FCA 329; (1984) 4 FCR 498, cited

Williamson v Trainor [1992] 2 Qd R 572, applied

[1] On 29 November 2006, a complaint was issued under the Justices Act 1886. It alleges that, on or about 5 July 2004, the applicant contravened s 436 (1) of the Local Government Act 1993 ("the Act") by failing to furnish a return required by s 430 of the Act disclosing details of "prescribed gifts" received in relation to a 2004 Gold Coast City Council election.

[2] The applicant seeks a declaration that the prosecution is time-barred, and consequential relief permanently staying the proceedings.

[3] On the face of the complaint, it is apparent that the proceeding was instituted more than two years after the offence is alleged to have occurred.

[4] Section 1080 of the Act stipulates that:

"A proceeding for an offence against this Act by way of summary proceeding under the Justices Act 1886 must start -

(a) within 1 year after the commission of the offence; or

(b) within 6 months after the offence comes to the complainant's knowledge, but within 2 years after the commission of the offence."

[5] There is, however, another, specific provision limiting the time within which the proceedings may begin.

[6] By s 436 (4) of the Act: "A prosecution for an offence against a provision of this section may be started at any time within 4 years after the offence is committed."

[7] This prosecution is for an offence against a provision of s 436. And it has been brought within the four years prescribed in s 436 (4).

[8] The comprehensive s 1080 is not expressed to be subject to s 436 (4). And the conflict between them falls to be resolved in the context of a criminal case. Those considerations, or so the applicant contends, justify a conclusion that the proceeding is time-barred. But such an interpretation of the statute would have the general limitation provision prevailing over the specific, and empty s 436 (4) of any potential operation: both peculiar outcomes. So the respondents look to have much the better of the limitation argument.

[9] The respondents, however, prefer that this Court not decide the question, even though no factual dispute is involved, leaving it to be determined in the Magistrates Court where the case is to be tried.

[10] Only exceptional[1] circumstances can justify intercepting the ordinary course of a criminal case by declaratory relief.[2]

[11] The suggested justification for regarding this case as sufficiently special relates to procedure. Magistrates Court procedures are said to be too inflexible as to allow the limitation point to be dealt with before the prosecution evidence has been adduced, obliging the applicant to suffer the trouble and expense of preparing for a hearing on the merits of the offence: inconvenience that can be avoided by the declaration sought.

[12] Division 3 of Part 6 of the Justices Act regulates the conduct of the hearing.

[13] When the defendant is present, the complaint "shall be stated", and the defendant asked to plead to it: s 145. By s 146 (1), when the plea is not guilty:

(a) proceed to hear the complainant and the complainant's witnesses, and the defendant and the defendant's witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant's general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or

(b) upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing."

[14] The other pertinent procedural provision, s 148, stipulates:

"The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross-examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law."

[15] This legislative regime is, on the applicant's case, an exhaustive statement of the available procedures on a not guilty plea, precluding separate or preliminary determination of the limitation point. This, however, is too restrictive a view of the capacity of a Magistrates Court to secure expedition and efficiency,[3] even if "may" in s 146 means "must".[4]

[16] A Magistrates Court has, by implication, the powers reasonably necessary to enable it to act effectively within its jurisdiction.[5] The more important of these are, "subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures ...",[6] and to prevent an abuse of its process.[7] Moreover,

"a court may exercise its ... implied powers ..., even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision."[8]

[17] If the limitation point is good and so the proceedings must fail, their continuance may be stayed as an abuse of process.[9]

[18] Division 3 of Part 6 of the Justices Act does not in terms provide a procedure for the hearing and determination of such an application. Nor do the Rules. But:

"... Where the enabling statute or rules or regulations ... are silent as to procedural matters an inferior court has power to control its procedures ... and ... unless restricted by statute, magistrates' courts ... are entitled to develop their own practice and procedure and to adapt it to contemporary needs ..."[10]

[19] Nothing in the provisions regulating the hearing of the complaint is at odds with the trial Court's entertaining an application for a stay before the prosecution case begins.

[20] In short, a Magistrates Court can decide the limitation point in disposing of a stay application.[11]

[21] Seeking a permanent stay is not the only means by which the time-bar issue can be agitated before the prosecution case is opened at trial. The applicant can obviate the risk of two appeals[12] by raising the issue in a preliminary way in the trial.

[22] An inferior court's capacity to mould its procedures to permit the preliminary determination of a point of law has been considered[13] in New Zealand, where the Court of Appeal[14] cited, with approval, Cooke P's earlier opinion[15] that:

"Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact."

[23] The recognition of a power in Magistrates Courts in this State to decide a preliminary question of law would conform with the legislative regime regulating the hearing of a complaint. It is also reasonably[16] necessary to enable the Court to act effectively within its jurisdiction. In this instance, the power facilitates determination of the time-bar issue early in the trial - generally, the preferable course.[17]

[24] So the limitation issue may be decided at trial as a preliminary question, before evidence is adduced.

[25] A Magistrates Court has ample means for deciding the limitation point conveniently. This Court's intervention by declaration is not warranted.[18]

[1] Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, 200; Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 571; DPP v Lewis [1997] 1 VR 391, 402; cf R v Long (No 1) [2001] QCA 318; [2002] 1 Qd R 662, 679.

[2] Many reasons account for the reticence, including: costs can proliferate; a different appellate regime may result (Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, 4th ed, (2002), para 19-110, p. 629); fragmentation brings delay that often results in fading recollections and diminution in public confidence in the administration of criminal law; and wealthy defendants may indulge in unmeritorious tactics to postpone the day of reckoning: see Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395, [6]-[13], citing Seymour v Attorney-General [1984] FCA 329; (1984) 4 FCR 498, 501 and M Aronson & B Dyer, Judicial Review of Administrative Action, 2nd ed, (2000), at p.579.

[3] O'Toole v Scott [1965] AC 939, 959.

[4] As it probably does: cf Leach v The Queen [2007] HCA 3, [38]; Police v Turbitt [2005] SASC 303; (2005) 92 SASR 480, 493.

[5] Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565, [16], [22], [28]; cf DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, 241, [25]-[26].

[6] Attorney-General v Otahuhu District Court [2001] NZCA 187; [2001] 3 NZLR 740, 746. See also Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265, [31], [32], [43].

[7] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 17; Neill v County Court of Victoria at [32], [41]-[44]; Williamson v Trainor [1992] 2 Qd R 572, 580.

[8] Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421, 427.

[9] Neill v County Court of Victoria at [43]-[44]; DPP v Shirvanian (1998) 44 NSWLR 129, 135.

[10] M v M [1993] VicRp 29; [1993] 1 VR 391, 395.

[11] Any stay application need not be decided before trial. If, for example, the prosecution case was in narrow bounds and not much expense or inconvenience would be involved in the applicant's preparing to meet the complaint on its merits, the parties, or the Magistrate, might consider it better to defer argument until the trial.

[12] against refusal of the stay, if the point is argued separately and lost, and against conviction should the prosecution succeed.

[13] Attorney-General v Otahuhu District Court at 747.

[14] Richardson P, Gault, Keith, Blanchard and Tipping JJ.

[15] In Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 399.

[16] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 451-452, [50]-[51].

[17] See Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 393, where Dixon J said that an inferior court "must" decide a contention that its criminal process was time-barred "before it proceeds to the merits of the charge". Cf R v Cooling [1990] 1 Qd R 376, 378 ("Once it comes to the notice of the Court that the prosecution is out of time it would be wrong for it to allow the prosecution to continue ...").

[18] It is unnecessary to consider whether a Magistrates Court is empowered, under s.83A of the Justices Act or otherwise, to consider the preliminary point before the trial starts.