Service and Execution of Process Act 1992 (Cth), s27.

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - General matters - Relevant principles, jurisdiction and powers - Jurisdiction to enter on hearing - When defendant bodily present.

Mortimore v Stecher [1971] VicRp 106; [1971] VR 866; R v Hughes (1879) 4 QBD 614; Parisienne Basket Shoes Proprietary Limited & Others v Whyte (1937 - [1938] HCA 7; 1938) 59 CLR 369, followed.

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Declaratory and validating acts.

Sea Fisheries Regulations 1962 (Tas), reg44(1)(oc).

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Fisheries offences - Sentence not manifestly excessive.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality - Totality principle applied correctly.

The appellants, and one Gibb, were charged on one complaint which alleged that on 15 January 1995 at Hunter Island in Tasmania, each of them committed the following offences:

Contrary to the Sea Fisheries Regulations 1962, reg31A(2)

Contrary to the Sea Fisheries Regulations 1962, reg31A(3)

Contrary to the Sea Fisheries Regulations 1962, reg44(1)(z)

Contrary to the Sea Fisheries Regulations 1962, reg44(1)(oc)

Take abalone whilst not the holder of a non-commercial diver's licence

Contrary to the Sea Fisheries Regulations 1962, reg16D(3)(b)

Possess on a boat abalone being detached from the shell

Contrary to the Sea Fisheries Regulations 1962, reg44(1)(s)

Contrary to the Sea Fisheries Regulations 1962, reg17B(1)(a))

The charges in counts 3 and 6 were laid as alternatives to counts 2 and 5 and were dismissed in the case of each appellant. Kelly and Gibb were acquitted of the charges laid in counts 1 and 8 and convicted on counts 2, 4, 5 and 7. Strachan was convicted on counts 1, 2, 4, 5, 7 and 8. As the result of a Notice to Review heard by Underwood J, Gibb's convictions on all counts, save count 5, were quashed, while those of Kelly and Strachan were confirmed and the penalties imposed by the learned magistrate upon the appellant Strachan (who alone sought a review of penalty) were confirmed, save for a reduction in the special penalty on count 4 from $3,200 to $1,600.

The following statement of facts is taken from the judgment of Underwood J at first instance. It was not challenged on the appeal:

"About noon on 15 January 1995, six police officers travelled in two boats to Hunter Island which lies just off the north-west tip of Tasmania. One of those officers, Mr Askew, was the officer referred to in count 1. On the western side of Hunter Island, the police officers observed a ten metre Devil Cat at anchor in a bay. About half a kilometre to the south, the police saw a small boat or punt. One of the police boats went to the Devil Cat and one went towards the punt. The Devil Cat was found to be unoccupied. There were two people in the punt, one was the applicant Strachan and the other was the applicant Kelly. As the police boat approached the punt, Strachan threw a hessian bag and an abalone net fitted with a blue parachute into the water. The spot where these articles were thrown overboard was noted by the police on their GPS navigation system. The applicant Strachan was dressed in a wet suit and the applicant Kelly was dressed in 'neoprene bib and brace overalls'. He was wearing a 'walkie-talkie' headset on his head.

A police diver recovered the bags from the water. They contained abalone, some of which were in the shell and some of which had been taken from the shell. The applicants Strachan and Kelly declined to make any comment to the police about these fish. Subsequent counting, weighing and measuring determined that there were a total of 345 fish, ninety-one still in the shell and 254 removed from the shell. Of the ninety-one in the shell, seventy-two were undersize and of the 254 that had been removed from the shell, thirty-two were less than the minimum permissible weight of ninety grams.

The police officers directed the applicants Strachan and Kelly to return to the Devil Cat. The police officers noted that the only items in the punt were those used for diving. On the Devil Cat, the police officers observed food, bedding, diving equipment and clothes, some of which the applicant Strachan changed into after he got out of the punt.

On board the Devil Cat the applicant Kelly talked to someone over his walkie-talkie radio headset and then asked the police officers if they would permit him to go ashore on Hunter Island and pick up the person to whom he had been talking. The police accompanied the applicant Kelly to the shore and brought back the applicant Gibb. He too was wearing a walkie-talkie radio headset similar to the one worn by the applicant Kelly. Mr Gibb later told the police that he was 'just sitting on the hill ... just admiring the view'. None of the applicants made any relevant admissions to the police."

Both appellants relied on the following grounds of appeal against conviction:

"2 That the learned judge ought to have held that the learned Magistrate erred in law by holding that Regulation 44(1)(oc) of the Sea Fisheries Regulations 1962 was not ultra vires the Fisheries Act 1959 by reason of the operation of Section 5 of the Fisheries Amendment Act 1995.

3 That the learned Judge erred by holding that there had been, as a matter of law, compliance with the provisions of the Service Execution and Process Act and that the Appellant had been lawfully served with the Tasmanian originating process concerning the charges.

4 That the learned Judge erred by holding that any legal defect in service was cured by the entry of pleas in a court of summary jurisdiction on 17th August 1995."

(I take the numbering from the notice of appeal by Kelly.)

Strachan appealed against sentence on the following grounds:

"3 That the learned judge ought to have held that the learned Magistrate when sentencing the Appellant erred in law by failing to apply the totality principal [sic] of sentencing.

4 That the learned judge erred in law in not finding that in all the circumstances the penalty imposed upon the Appellant was manifestly excessive."

(This numbering is taken from his notice of appeal.)

The offence charged in count 5 is proscribed by the Sea Fisheries Regulations 1962, reg44(1)(oc) which provides:

(oc) may, subject to subregulation (1I), possess, or have control of, more than 20 abalone unless -

(i) the person has in his or her possession the third copy of the diver's docket which relates to the abalone; or

(ii) the person has in his or her possession a docket in the prescribed form relating to the purchase of the abalone from a licensed fish merchant; or

(iii) the abalone are in the possession of the holder of a commercial abalone diver's licence who has taken the abalone under that licence and the abalone have not been landed; "

Zeeman J in Graham v Davies A55/1995, held that the regulation was ultra vires, and it appears to be common ground between both counsel that this view was correct. However, by the Fisheries Amendment Act 1995, s5, the Parliament enacted that:

"Any regulations made under the Principal Act before the commencement of this Act relating to prohibiting or restricting the possession of fish, as defined by the Principal Act, subject to any condition or requirement to possess, complete, maintain and provide any records, returns or documents are valid and always have been valid."

Counsel for the appellants submitted that as reg44(1)(oc) was, at the time of the amending Act, ultra vires and hence invalid ab initio, it was merely a purported regulation and could not be described as a regulation. In s5, that expression, he submitted, was descriptive only of regulations which were valid at the time of their creation. The learned judge at first instance met this argument with the answer that there would be no point in enacting s5 if it only referred to valid regulations. A similar argument was put to Zeeman J in Green v Davies 91/1997 and rejected by him on the basis that if the argument were sound, then by enacting s5, the legislature engaged in an act of futility. He referred to Kenny v Maher (1993) 70 A Crim R 333. In his view:

" ... it plainly appears from s5 that thereby Parliament intended to validate, from the time of their making, all regulations of the relevant description which were ultra vires the Act at the time that they were made" (at 4).

Counsel for the appellant, however, argued that it would not be an exercise in futility to validate regulations which, though valid at the time of their making, had, at the time of the amending legislation, ceased to be valid by reason of disallowance or by the enactment of a later statute implicitly invalidating them. Although there was no suggestion in argument that there had been any such regulations disallowed or invalidated by subsequent legislation, and although the ordinary meaning of the words in the context of a section purporting to give validity to something which was at that time invalid would embrace a regulation held to be ultra vires, to the extent that there is any possibility of ambiguity permitting the interpretation urged by the appellants, it is proper to have regard to the Second Reading Speeches of its movers delivered in the House of Assembly on 19 October 1995 and in the Legislative Council on 1 November 1995 (Acts Interpretation Act 1931, s8B). In the former speech, the mover said:

"The bill before the House is an amendment of the Fisheries Act 1959 to clarify the regulation-making powers concerning the imposition of possession limits for fish and the need to retain documents relating to such fish. The bill also confirms that all the regulations that deal with or are related to these powers are and have always been valid, thereby removing any possibility of doubt.

The bill is necessary because Mr Justice Zeeman of the Supreme Court of Tasmania made a ruling that the regulation in the Sea Fisheries Regulations 1962 which imposes the possession limit of twenty abalone had no head of power and therefore was ultra vires. This ruling placed the management of Tasmania's fisheries resources at considerable risk and it needs to be addressed promptly."

The same sentiments were expressed in the Upper House by the mover of the bill. In my opinion, there can be no doubt that reg44(1)(oc) was validated by s5 of the amending Act and there is no substance to the ground relied upon.

Service of a summons giving particulars of the charges laid against the appellants was effected in Victoria. Although it was not personal service, no challenge was made on this basis, but rather on the basis that only service of the initiating process was effective to give the Court of Petty Sessions jurisdiction to hear the charges. Such process, it was submitted, is a complaint and as neither the complaint nor a complete copy of it was served, service was defective.

The Service and Execution of Process Act 1992 (Cth), s24, relevantly provides in respect of criminal proceedings:

"(1) An initiating process issued in a State may be served in another State.

(2) Service on an individual must be effected in the same way as service of an originating process in the place of issue."

Similar provisions apply to initiating process in civil proceedings (s15(1) and (2)) and in respect of process, whether in criminal or civil proceedings, other than initiating process or a subpoena (s27(1) and (2)). The Justices Act 1959 provides, by s27, that proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his attorney or other person authorised on his behalf. Section 32 provides that when complaint is made to a justice, he may "(a) issue a summons to the person complained against". Provision is also made for the issue in some cases of a warrant of apprehension or a body warrant.

The Justices Rules 1976, prior to 1981, contained forms which in some cases combined both complaint and summons. Full details of the charge were to be set out in the complaint and the summons required attendance on a given date "to answer the charge set out above". The relevant Rules were as follows:

"14 - (1) Every complaint shall be lodged with a clerk by the complainant within 7 days of making the complaint.

(2) Where a summons is issued on a complaint the complainant shall provide 3 copies of the complaint and of the summons, one to be filed with the clerk, one for the purposes of rule 19, and one for the purposes of rules 20 and 22.

18 A summons founded on a complaint may be set out at the end of the complaint or on a separate sheet of paper and in either case shall be signed by the justice issuing it.

19 - (1) A summons may be served on a person other than a corporation -

(a) by delivering it to the person to whom it is directed;

(b) by leaving it for him at his last-known or usual place of abode with a person apparently living there or at his last-known or usual place of business with a person employed there, being in either case a person apparently not less than 16 years of age;

20 A person serving a summons shall endorse on a copy of it a memorandum setting forth the day, place, and mode of service and shall sign the memorandum.

22 Upon completion of the endorsement of service, the copy complaint and summons shall be lodged in the office of the clerk for the district in which the summons is returnable and shall be filed by him."

By Statutory Rule 166 of 1981, r18 was rescinded and the form substituted did not contain provision for a combined complaint and summons. The form of summons now set out in the Rules contains provision for particulars of the offences charged to be set out on its face. The Rules, with the exception of r18, remain as set out above. There is no specific requirement to serve a copy of the complaint. Rule 19 provides for service of the summons, and r20 for endorsement of service upon a copy of the summons. The requirement of r14(2) that copies of the complaint be filed with the clerk for the purposes set out therein, and the requirement of r22 that upon completion of the endorsement of service (on the summons), the "copy complaint and summons shall be lodged with the clerk", would appear to have been directed to facilitating service of the combined complaints and summonses authorised by r18, which has now been rescinded. As the present form of summons contains all the particulars contained in the complaint, no useful purpose is served by delivery of the complaint, as well as the summons, and the Rules have never required service of the complaint as such. When this matter was argued, it was submitted that the relevant section of the Service and Execution of Process Act 1992 was s15, and emphasis was placed on a perceived need to effect service of the initiating process. However, that section applies to civil proceedings and, in any event, what has to be served is not necessarily initiating process. In my view, the relevant section is s27 which deals with process other than initiating process and subpoenas, namely a summons, process being generally understood to include "the mandate, summons or writ by which a person or thing is brought into court for litigation" (Shorter Oxford English Dictionary). If I am right in the view that the Justices Rules do not require the complaint to be served with the summons, but require merely service of the summons itself, then the requirement of the Service and Execution of Process Act 1992, s27(2) that it be served in another State in the same way as service of a summons under the Justices Rules in Tasmania has been met. In my view there is no substance in ground 3.

This ground only arises if ground 3 is upheld; but in the event that service of the complaint was necessary to satisfy the Service and Execution of Process Act 1992, I am of the view that the learned judge hearing the Notice to Review correctly held that the magistrate had jurisdiction to hear and determine the complaint. The facts are that on 17 August 1995 the Court record of proceeding sheet states that the appellants did not appear in person, but that Mr Kimber appeared on their behalf and entered pleas of not guilty. Thereupon the proceedings were adjourned to a later date. In an affidavit filed in the Court of Petty Sessions, Mr Kimber deposed that on 17 August 1995 he appeared before that court for the three defendants named in the complaint and indicated that he had instructions to defend the charges. On 29 July 1996, after a number of adjournments, the matter came on for hearing. Counsel for the appellants, in their presence, raised the issue the subject of ground 3 and purported to enter a conditional appearance by them. The learned magistrate adverted to the fact that on 17 August 1995, Mr Kimber had appeared for each of them and entered pleas of not guilty. As he was not the magistrate presiding on the latter date, it seems clear he must have been relying only on the record of proceedings endorsed upon the complaint and was not speaking from personal knowledge. He over-ruled the submission that service was defective and commenced to hear the complaint. One witness was called, but due to late delivery of certain proofs, the matter was adjourned to 30 August 1996. On that date, the hearing was resumed and at the conclusion of the prosecution case, a no case to answer submission was made and the magistrate's decision reserved. The three defendants were again present. The matter was adjourned to 12 November 1996 when the magistrate ruled that there was a case to answer and the appellant Strachan gave evidence in his own defence, the other appellant and Gibb electing not to enter the witness box. That day the magistrate made his findings of guilt. Sentence was pronounced later.

The learned judge hearing the Notice to Review took the view that any defect in the service of process had been cured by the entry of pleas by Mr Kimber on behalf of the appellants on 17 August 1995. He referred to Lowe v Maher [1990] Tas R 193 at 197 - 198 as authority for the proposition that counsel may represent a client charged with a summary offence and enter a valid plea of not guilty on his or her behalf. Mr Kimber made two affidavits. In the first, sworn on 7 June 1996, he deposed:

"6 On the 17th August 1995 at 10.00 am I appeared before Mr Magistrate M Hill in the Court of Petty Sessions at Hobart for the three Defendants and the matter was adjourned for mention to the 1st September for allocation of a hearing date. I indicated that I had instructions to defend the charges."

In the second, sworn on 25 August 1997, he deposed:

"6 In para6 of my affidavit of the 7th June 1996 I stated that I 'indicated that I had instructions to defend the charges'. I am aware that a notation on the court 'record of proceedings' states that on the 17th August 1995, not guilty pleas were entered. I confirm my notes of the proceedings on that day show that in my preparation I had instructions to defend, and that I intended to indicate to the Magistrate that the charges would be defended. I can not definately [sic] say whether I entered pleas of not guilty, or only indicated pleas of not guilty would be entered."

In my view, these assertions do not amount to a challenge to the records of the Court of Petty Sessions. The Justices Rules, r63, require the clerk to keep a record of the proceedings, including, specifically, pleas. The presumption of regularity should be applied in the absence of any evidence that the record is incorrect (R v Sullivan [1971] 1 QB 253; R v Johnston 62/1973; R v Gill 4/1974; R v Devine 42/1998).

An irregularity in proceedings, such as a defect in service of a summons, does not necessarily deprive the court of jurisdiction. It was said in Mortimore v Stecher [1971] VicRp 106; [1971] VR 866 that:

"The summons too is merely part of the procedure for bringing the defendant before the court. If he will come without it, or does come without it, the course of issuing and serving a summons is unnecessary." (At 872)

In O'Donnell v Chambers [1905] VicLawRp 9; [1905] VLR 43 at 48, Madden CJ said:

"... as the purpose of all this process is to bring the individual charged before the court it does not matter for the goodness or badness of the decision how he was brought before the court. He is there, and being there, so long as he is charged with that which in point of law is an offence, and the evidence supports that charge, the conviction is good, no matter how bad the process which brought him there - nay, even if that process be illegal."

In R v Hughes (1879) 4 QBD 614, Hawkins J said at 623:

"Now a charge having been made before them, of an indictable offence, committed within their jurisdiction, by a person then bodily present, it seems to me the justices were bound to take cognizance of it."

"Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment)."

In Parisienne Basket Shoes Proprietary Limited & Others v Whyte (1937 - [1938] HCA 7; 1938) 59 CLR 369 the defendants, on the return of one summons irregularly extended, appeared and pleaded without objecting to the jurisdiction, while the defendants to a second such summons did not appear, but counsel on their behalf objected to the jurisdiction of the court. It was there held by the whole court that the justices had jurisdiction to try the defendants in the first case. The majority considered that in the second case the irregularity in the extension of time for hearing of the summons might be a ground for setting aside the order extending it, but as the informations were before the justices and service had been effected, the justices had jurisdiction notwithstanding the absence of the defendants.

In the present case, the appellants, so the court records show, entered pleas of not guilty on 17 August 1995 through their counsel without raising any objection to the jurisdiction. Throughout their trial they were "then bodily present" (to use the phrase appearing in the judgment of Hawkins J in R v Hughes (supra)). In my opinion, the learned magistrate had jurisdiction to proceed with the trial, notwithstanding the objection raised at its commencement by the appellants' counsel and notwithstanding any irregularity arising from the failure to serve a copy of the complaint, as well as the summons, if such a document is indeed required to be served. There was no special statutory enactment making service in accordance with the Service and Execution of Process Act 1992 a condition precedent to jurisdiction.

I deal now with the appellant Strachan's appeal in respect of sentence.

The effect of the totality principle is stated in these terms by D A Thomas in his Principles of Sentencing, 2 edn, at 65:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."

The sentences imposed on the appellant Strachan, as varied by Underwood J, were as follows:

Possess abalone on a boat being detached from the shell

In aggregate they amounted to six months' imprisonment and fines amounting to $8,599.50, of which $5,499.50 were special penalties which the magistrate had no discretion to reduce. In fact, an error in the appellant's favour was made by the learned magistrate, who should have imposed a minimum penalty of $200 on count 8 and a special penalty of $100 instead of $50 in all and special penalties of $17,250 and $12,700 instead of $172.50 and $127 on counts 5 and 7 respectively. The learned magistrate clearly took into account the totality principle when imposing sentence, for on that occasion he said:

"In quantifying the length of imprisonment I take into account that, imprisonment or no, special penalties are required and that the defendant has needed to travel to Tasmania many times before finality has been reached."

Whether he took it into account adequately involves the same issues as are raised in the next ground of appeal.

Leaving to one side the special mandatory penalties in respect of which, as I have said, the learned magistrate made an error very generous to the appellant, the other financial penalties were considerably less than the maximum provided by the Act and Regulations. The following table illustrates the point:

In respect of count 5, the penalty provided by the Regulations, Sch7, Pt3, in the circumstance that it was a level 2 second offence was a minimum of $500, a maximum of $500,000 or imprisonment for not more than one year. Hence the custodial penalty was half the maximum.

The appellant had a bad record of prior convictions in both Victoria and Tasmania for fisheries offences, commencing in 1970 and extending to 1990. Many heavy fines had been imposed upon him and he had been sentenced to terms of imprisonment for taking abalone without a licence: of one month in 1972, one month in 1983, three months in 1985, four months in 1989 and six months reduced to five months and two weeks on appeal in 1990. The circumstances of the offence show that he was caught in the act of unlawfully taking abalone and that in an attempt to avoid detection he threw overboard bags containing 345 fish, many of them undersized. His accomplice, Kelly, was wearing a headset by which he could communicate with Gibb, who was keeping watch on the Island. The fact that the commercial value of the fish taken is said not to have exceeded $3,000 is of little significance in determining the gravity of the offence. Counsel for the appellant sought to compare its gravity with criminal episodes such as burglary and stealing goods to that value, but I think the comparison is meaningless, especially when an offender is apprehended in the course of committing the offence. I totally agree with the comments of Underwood J when giving judgment on the Notice to Review to the effect that:

"... the abalone fishery is a precarious resource, one which will be lost forever unless strong deterrent penalties are imposed upon those who exploit it outside the controls imposed by those who are authorised on behalf of the community to manage this resource. Persistent offenders must understand that repeated criminal plundering of precarious natural resources is likely to result in immediate custodial sentences." (110/1997 at 17).

A clear deterrent sentence was necessary in this case and the penalties imposed can in no way be said to have infringed the totality principle or to have been manifestly excessive in all the circumstances.

At the conclusion of the hearing of both appeals we dismissed them and said we would give our reasons later. The foregoing are my reasons for doing so.

The reasons prepared by the learned Chief Justice clearly express the views which I, too, held at the conclusion of this appeal.

I have had the advantage of reading, in draft form, the reasons for judgment of the learned Chief Justice. I agree with both the reasoning and conclusions stated therein. Those reasons form the basis on which I joined in the order dismissing the appeal.