Sharman v Director of Public Prosecutions

Sharman v Director of Public Prosecutions - [2006] NSWSC 135 - NSWSC 2006 case summary — Zoe

[11]

JUDGMENT 1 BELL J: The plaintiff is a senior constable of police. On 19 June 2004 he was driving a police vehicle when it collided with a tree, killing his passenger, Constable Shelley Davis. A decision was made to prosecute the plaintiff for three offences arising out of the collision. The offences are all summary offences and proceedings for them must be commenced within six months of the date of their commission. The plaintiff contends that proceedings against him were not validly commenced within the period and he claims orders quashing the Magistrate's determination to the contrary and prohibiting the prosecution from further proceeding against him in respect of the offences. 2 The plaintiff sustained injuries in the collision and was off work for some time, convalescing at home. His solicitor, Warren Nicholls, was in contact with Detective Inspector Shier, the officer in charge of the investigation into the accident. Mr Nicholls advised Inspector Shier that he had instructions to receive service of any court process on behalf of his client. On 15 December 2004 Inspector Shier told Mr Nicholls that the Director of Public Prosecutions (the Director) had recommended that charges be laid against the plaintiff arising out of the accident. Inspector Shier asked if Mr Nicholls still had instructions to accept service. The following day, 16 December, Mr Nicholls had a further telephone conversation with Inspector Shier and an arrangement was made for Inspector Shier to serve a copy of the court attendance notice on Mr Nicholls by facsimile. On 16 December Mr Nicholls received by facsimile copy of a court attendance notice detailing three offences: (i) negligent driving occasioning death contrary to s 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 ; (ii) exceed speed by an amount in excess of 15 km per hour contrary to r 20 of the Australian Road Rules promulgated under the Road Transport (Safety and Traffic Management) Road Rules Regulation; and (iii) use police insignia otherwise than as a police officer contrary to s 203(3) of the Police Act 1990 . 3 On 17 December 2004 Mr Nicholls had a further telephone conversation with Inspector Shier, who informed him that he had been advised by the Legal Service Branch of the Police Service that it was necessary for service of the court attendance notices to be effected personally. Inspector Shier said that he had made arrangements for an officer attached to the Goulburn Police Station to serve the court attendance notices on the plaintiff at his home. 4 Detective Inspector Ryan personally served the court attendance notice on the plaintiff at his home on 17 December 2004. The plaintiff was thus served with the court attendance notice in respect of the three offences that he was alleged to have committed within the six-month limitation period. 5 Section 178(1) of the Criminal Procedure Act 1986 (the Act) provides that all proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with Div 1 of Pt 2 of ch 4 of the Act (the Division ). Section 177(4) provides: 177 Service of court attendance notices (1) A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules. … (4) A copy of a court attendance notice must, except with the leave of a Magistrate or a registrar of the court, be filed in a court not later than 7 days after it is served and must contain an endorsement as to service.

[13]

9 Mr Nicholls made a number of inquiries to determine whether a copy of the court attendance notice containing an endorsement as to service had been filed in the registry of the court. When these failed to turn up a copy of the notice with the endorsement Mr Nicholls put the Director on notice that when the matters were next before the court he would seek a ruling that the proceedings had not been validly commenced within time. 10 On 8 March 2005 Mr Nicholls received a copy of a statement made by Detective Inspector Ryan concerning the filing of the court attendance notice. In his statement Inspector Ryan said: In the afternoon on Friday 17 December 2004, I had a telephone conversation with Detective Inspector Greig Shier of Cootamundra Local Area Command. As a result, I immediately accessed charge number H22904640 within the Computerised Operational Policing System. This charge consisted of three Court Attendance Notices for Paul Frederick Sharman to appear at the Goulburn Local Court on Wednesday 12 January 2005 for the offences of negligent driving occasioning death, exceed speed over 15 km/h and use police insignia otherwise than as a police officer. I downloaded copies of the three Court Attendance Notices and copy of the fact sheet. About 3:00 pm that day, I went to the Goulburn Court House and lodged the three Court Attendance Notices (court copy) together with the record of service copy. These papers were stamped "received 17 Dec 2004". I then went to the home address of Paul Sharman (location to be provided if required). I handed Mr Sharman the defendant's copy of the three Court Attendance Notices and a copy of the fact sheet. I explained the requirements relative to the notices; however I did not discuss specific issues pertaining to the police investigation or the future prosecution process. 11 Mr Nicholls made a number of further inquiries following receipt of Inspector Ryan's statement. These included obtaining access to the audit trail of the computer accesses made by Inspector Ryan of the COPS system relating to the three charges against the plaintiff. 12 The three charges were listed for hearing before the Goulburn Local Court on 20 June 2005. Mr Nicholls briefed Mr Nematalla of counsel on the plaintiff's behalf. Mr Nematalla informed the Magistrate of a challenge the validity of the proceedings. The Magistrate determined to hear this challenge as a preliminary issue and to rule upon it before embarking on the hearing. 13 Inspector Ryan gave evidence consistent with his statement on the determination of the preliminary issue. He said that the record of service copy of the court attendance notice that he printed from the COPS system and filed in the registry of the court contained the service details that had been entered into the system by Inspector Shier. A copy of the document was exhibit 3 in the proceedings (annexure "LWN7" to the affidavit of Warren Nicholls, sworn on 28 June 2005). After filing the document in the registry of the court Inspector Ryan went to the plaintiff's home and personally served the court attendance notice on him. He said that after this he had endeavoured to update the service details in COPS, but that the system would not allow him to do so since the service field had already been completed. 14 The service details recorded on the record of service copy of the court attendance notice, annexure LWN7, are as follows: I have served on ACCUSED/DEFENDANT a copy of this Court Attendance Notice IN PERSON at 4:49 pm on 16/12/2004 at ON WRITTEN ADVICE BY THE DEFENDANT'S SOLICITOR THE DOCUMENT RELATING TO THE PROCEEDING WILL BE FORWARDED TO SOLICTIOR. ACCEPTING PROCESS ON BEHALF OF THE DEFENDANT. INSP GREIG SHIER (22474), Cootamundra. 15 Inspector Ryan was challenged as to his recall that he had sought to update the service details by accessing the COPS system after effecting personal service on the plaintiff on 17 December 2004. After being shown details from the audit trail for the COPS he acknowledged that he was mistaken in his recall of the time at which he had tried to update the service details.

[17]

24 A further submission made on the plaintiff's behalf was that jurisdiction could not be founded upon an acceptance of the Inspector's oral evidence as to the filing of the copy of the court attendance notice bearing an endorsement as to service in circumstances in which there existed no record of the filing of the document. In the view to which I have come, it is not necessary to deal with this alternative submission. 25 The provisions of the Division were introduced into the Act by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. They formed part of the package of legislation that was enacted in association with the repeal of the Justices Act 1902 and which commenced on 7 July 2003. 26 Under the Justices Act proceedings for summary offences might be commenced by the laying of an information. Unless some other time was specially limited by the Act dealing with the matter, an information was required to be laid within six months from the time when the matter of the information arose (s 56(1)). It was the laying of the information that founded the court's jurisdiction to deal with the offence: John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508. Provision to secure the attendance of the defendant at court was made separately by the issue of a summons. Service of the summons within the six-month period was not a requirement for jurisdiction under the Justices Act. 27 The Criminal Procedure Amendment (Justices and Local Courts) Act introduced a new method for the commencement of proceedings by court attendance notice. It is convenient to set out some of the provisions of Div 1 of pt 2 of ch 4: PART 2 - TRIAL PROCEDURES IN LOCAL COURTS DIVISION I - COMMENCEMENT OF PROCEEDINGS 172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State. 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. … 175 Form of court attendance notice 175(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 court 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 a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment. … 177 Service of court attendance notices 177(1) A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules. … (4) A copy of a court attendance notice must, except with the leave of a Magistrate or a registrar of the court, be filed in a court not later than seven days after it is served and must contain an endorsement as to service. (5) Leave may be granted under subsection (4) after the expiry of the 7-day period referred to in that subsection. 178 When proceedings commence 178(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. (2) A court attendance notice may be filed even though it has not been served if; (a) A warrant is sought under this Part for the arrest of the accused person, or (b) the notice is not able to be served, despite reasonable attempts to do so, or (c) the registrar gives leave to do so after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice. (3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date. 179 Time limit for commencement of summary proceedings 179(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed. (2) This section does not apply: (a) To an offence for which an Act or law specifies another period within which proceedings must be commenced, or (b) to an indictable offence that has been dealt with summarily. 28 Service of court attendance notices in summary proceedings is the subject of r 18 of the Local Courts (Criminal and Applications Procedure) Rule 2003: 18 Service of court attendance notices in summary proceedings (1) A court attendance notice commencing proceedings for a summary offence is to be served on a person (the accused person) against whom the proceedings are commenced in accordance with this clause. (2) Service of a court attendance notice may be effected: (a) By handing it to the accused person, or (b) by handing it to a person at the accused person's usual place of residence or business who is apparently of or above the age of sixteen years, or (c) if the accused person is an inmate of a correctional centre, by handing it to the officer in charge of the correctional centre or by sending it by post or facsimile or other electronic communication to the officer in charge of the correctional centre, or (d) by sending it by post of facsimile to the person's residential address not less than 21 days before the first listing date for the offence, or (e) by sending it by electronic communication to the person's email address. 29 The short point raised by the plaintiff's summons turns on the construction of s 177(4) of the Act. It is the plaintiff's submission that the copy of the court attendance notice that must (except with the leave of a magistrate or a registrar of the court) be filed in a court not later than seven days after service must contain an endorsement as to lawful service, in accordance with the provisions of the Act. Section 177(1) requires that a court attendance notice issued by a police officer be served by a police officer in accordance with the rules. In the plaintiff's submission, the service on his solicitor by facsimile transmission of the court attendance notices was not valid service under the rules.

[19]

31 The provisions on cl 18 of the Local Courts (Criminal and Applications Procedure) Rule 2003 are, relevantly, as follows: 18 Service of court attendance notices in summary proceedings (1) A court attendance notice commencing proceedings for a summary offence is to be served on a person ( the accused person ) against whom the proceedings are commenced in accordance with this clause. (2) Service of a court attendance notice may be effected: (a) By handing it to the accused person, or (b) by handing it to a person at the accused person's usual place of residence or business who is apparently of or above the age of sixteen years, or (c) if the accused person is an inmate of a correctional centre, by handing it to the officer in charge of the correctional centre or by sending it by post or facsimile or other electronic communication to the officer in charge of the correctional centre, or (d) by sending it be post or facsimile to the person's residential address not less than 21 days before the first listing date for the offence, or (e) by sending it by electronic communication to the person's email address. … (4) If, on tender of a court attendance notice to a person, the person refuses to accept it, the notice may be served by putting it down in the person's presence after the person has been told of the nature of the notice. 32 In the Director's submission, having regard to the words in parentheses in cl 18(1), the references in cl (2)(a) - (e) to "the accused person" or the "the person" are to be taken to include a reference to a barrister or solicitor representing the accused person. 33 In the Director's submission, the service effected by Inspector Shier on 16 December 2003 was valid service for the purposes of cl 18(2)(d). It is not clear that the subject matter or context of cl 18(2) allows or requires references to "the person" or the "accused person" to be taken to include a reference to a barrister or solicitor representing the accused person. It is not necessary to decide the point, since, on any view, the service effected by facsimile on the plaintiff's solicitor was not service to "the person's residential address" for the purposes of subcl (2)(d). I am not persuaded that the purported service of the court attendance notice by facsimile to the plaintiff's solicitor was valid service for the purposes of the Act. 34 It was not submitted on the Director's behalf that the requirement of an endorsement as to service in s 177(4) means other than an endorsement as to valid service for the purpose of the Act.

[20]

35 The Director's principal submission was that s 177(4) deals with two topics: (i) the filing of a copy of the court attendance notice in a court within a specified time; and (ii) the endorsement of service on the notice. In his submission the failure to comply with the latter requirement does not result in invalidity: Project Sky Blue v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 388-9; [91] to [93]. Their Honours there 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. … The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. … 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. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. 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".

[23]

38 There is nothing in the Attorney General's second reading speech at the time of the introduction of the legislative package (or in the Parliamentary Secretary's speech at the time of the amending bill) that explains why it was proposed that under the new scheme filing of the initiating process was to depend on service (save in the circumstances set out in s 178(2)). As I have noted, service did not go to jurisdiction under the scheme for the commencement of summary criminal proceedings under the Justices Act. 39 The Criminal Procedure Amendment (Justices and Local Courts) Act introduced a completely new scheme with respect to the commencement of criminal proceedings. The subject matter of the Act is the conduct of criminal proceedings both summary and on indictment. The Division is concerned with the commencement of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily: s 170(1). Proceedings for summary offences are to be commenced by the issue and filing of a court attendance notice in accordance with the Division. All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with the Division. The language of s 177(4) is imperative. In my opinion it cannot be read disjunctively as requiring as a condition of the commencement of proceedings that a copy of the court attendance notice be filed and, separately, making provision for the filing of a copy of the court attendance notice that contains an endorsement as to service. 40 The statutory scheme makes provision in s 178(2) for exceptions to the requirement of service of the court attendance notice prior to filing. These include that a court attendance notice may be filed even though it has not been served in a case in which it is not able to be served despite reasonable attempts to do so (subs (2)(b)), or where the registrar gives leave after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice (subs (2)(c)). The specification of the circumstances in which the notice may be filed even though it has not been served points against a construction of the Act that the filing of the notice containing an endorsement as to service is not a condition of valid commencement of proceedings in cases that do not fall within one or more of the exceptions.

[26]

43 The Director submitted that the Court ought not in the exercise of discretion grant the plaintiff the relief he claims. This was because the Magistrate accepted the submissions advanced on the plaintiff's behalf before him concerning the requirements for valid commencement of summary criminal proceedings. He found the copy of the court attendance notice to have been filed containing an endorsement as to service. He had not been invited to consider whether the service was valid in accordance with the provisions of the Act. Counsel for the plaintiff did not accept that this was the way the matter had been conducted in the court below. Prominent in the approach taken before the Magistrate was the consideration of whether, as a fact, the court attendance notice bearing Detective Inspector Shier's endorsement as to service had been filed. To my mind it is not clear that the Magistrate was asked to consider the question now raised. Nonetheless, the point is one that goes to jurisdiction. There is no issue that the court attendance notice filed in the registry of the court by Inspector Ryan did not bear an endorsement of his service on the plaintiff. I am satisfied that it did not bear an endorsement of service effected in accordance with the requirements of the Act. I have concluded that the proceedings were not commenced in accordance with the provisions of the Act within six months of the date on which the offences were alleged to have been committed and that accordingly the Magistrate did not have jurisdiction to entertain them. 44 Attention was not focussed on the form of the orders claimed by the plaintiff in his summons save that it was acknowledged on his behalf that, in the event that relief of the nature of that claimed in paragraphs one or two were granted, there was no occasion to make an order of the character of that sought in paragraph three. Paragraph one claims a declaration that s 173 of the Act requires for the commencement of proceedings by a police officer the filing of a court attendance notice bearing an endorsement as to service upon the defendant. However, proceedings may be commenced by the filing of a court attendance notice even though it has not been served in the circumstances set out in s 178(2). I propose to make a declaration is terms that are more confined. Paragraph two claims an order quashing the Magistrate's determination made on 20 June 2005. It does not seem appropriate to quash a determination purportedly made in the course of proceedings for which the Magistrate did not have jurisdiction: Barnes v Edwards (1993) 31 NSWLR 714. ORDERS 1. Declare that proceedings with respect to court attendance notice H22904640 for charge cases 087/908/65, 087/916/05 and 087/924/05 were not commenced within the period limited by s 179(1) of the Criminal Procedure Act 1986 and that the Local Court is without jurisdiction to hear them.

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