Chappell v Director of Public Prosecutions

[2006] NSWSC 1126

CITATION:	Chappell v Director of Public Prosecutions [2006] NSWSC 1126 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23/10/06
JUDGMENT DATE :	26 October 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1. Dismiss the plaintiff’s summons; 2. Remit the proceedings to the Local Court for the determination of the prosecutor’s application for leave under s 177(4) of the Criminal Procedure Act 1986 to extend the time for filing the copy of the court attendance notice containing an endorsement as to service to 3 August 2005.
CATCHWORDS:	Commencement of proceedings by court attendance notice - leave to extend time for filing service copy of notice
LEGISLATION CITED:	Criminal Procedure Act 1986 Local Court (Criminal and Applications Procedure) Rule 2003 Road Safety (Safety and Traffic Management) Act 1999
CASES CITED:	Sharman v Director of Public Prosecutions [2006] NSWSC 135; 161 A Crim R 1
PARTIES:	Marlene Rose Chappell (Plaintiff) Director of Public Prosecutions (Defendant)
FILE NUMBER(S):	SC 11963/06
COUNSEL:	B E Haverfield (Plaintiff) G Farmer (Defendant)
SOLICITORS:	Staunton Beattie Solicitors (Plaintiff) Solicitor for Public Prosecutions (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 26 October 2006

11963/06 Marlene Rose Chappell v Director of Public Prosecutions

JUDGMENT

1 BELL J: By her second further amended summons the plaintiff claims an order in the nature of certiorari quashing the determination of the second defendant, a Magistrate, made on 18 April 2006, holding that summary proceedings for offences under the Road Safety (Safety and Traffic Management) Act 1999 had been properly commenced against her, together with declaratory relief.

2 The plaintiff was involved in a motor vehicle collision on Pittwater Road, Mona Vale on 2 July 2005, which has given rise to proceedings being brought against her alleging the commission of three offences contrary to the Road Safety Act: negligent driving contrary to s 42(1)(c) and two counts of negligent driving occasioning grievous bodily harm contrary to s 42(1)(b). Each is a summary offence and is the subject of a six-month limitation period.

3 The proceedings for the three offences purport to have been commenced in accordance with the provisions of Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (the CPA). Section 172(1) provides that proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with Div 1 of Pt 2 of Ch 4 of the CPA.

4 It is the plaintiff’s contention that the proceedings were not validly commenced in accordance with the provisions of the CPA and that the Magistrate wrongly determined otherwise. The Magistrate, who is named as the second defendant in these proceedings, has entered a submitting appearance.

5 Section 177 of the CPA, relevantly, provides:

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 7 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.

6 The Local Court (Criminal and Applications Procedure) Rule 2003 (the Rule) makes provision for the manner of service of court attendance notices in summary proceedings. Service may be effected by sending a court attendance notice by post to the person’s residential address not less than 21 days before the first listing date for the offence: r 18(2)(d). Rule 36(1), relevantly, provides:

36 When service taken to be effected
(1) If a document issued in proceedings is served by post, service is taken, in the absence of evidence to the contrary, to have been effected on the fourth working day after the document was posted.

7 The copies of the court attendance notices that were filed in the registry of the court and which contain an endorsement as to service are annexed to the affidavit of the plaintiff’s solicitor, Gordon McDonald Hartley, which was sworn on 29 June 2006. They were filed in the registry of the court on 3 August 2005 and each records that service was effected by sending it to the plaintiff’s residential address by registered mail on 25 July 2005.

8 The proceedings for each of the three offences thus appeared on the face of the filed copy of the court attendance notice to have been commenced in accordance with the CPA and the Rule: the service copy of the notice had been filed within 7-days of 29 July, this being the fourth working day after service by post, deemed by operation of r 36(1) of the Rule to have been the date on which service was effected.

9 The proceedings were listed for hearing before the Local Court on 18 April 2006. At the commencement of the hearing the Magistrate was informed that the plaintiff sought to have a jurisdictional question determined. The affidavits of the plaintiff and of her solicitor, both of which were sworn on 13 April 2006, were tendered on this preliminary issue. There was no challenge to the account of the events contained therein. The evidence established that the plaintiff received the copies of the court attendance notices on 26 July 2005.

10 The point made by the plaintiff was that while the copies of the court attendance notices bearing the endorsement as to service had been filed in the registry of the court within 7-days of the date on which they were deemed to have been served by operation of r 36, there was unchallenged evidence that established the fact of service on 26 July. The 7-day period for filing the service copies in the court was said to have expired on 2 August, with the result that the proceedings had not been commenced in accordance with the CPA and the Rule. Counsel for the plaintiff submitted that it was not open to the Magistrate to extend time under s 177(4) because the limitation period had expired as at the date of the hearing. He referred to my decision in Sharman v Director of Public Prosecutions [2006] NSWSC 135; 161 A Crim R 1 at 11 [42], submitting that it supported this contention (T 5.48 – 6.5; 14.19-26).

11 The Prosecutor submitted that the proceedings had been regularly commenced. In his submission, service having been effected in each case by post on 25 July, the 7-day period for filing under subs (4) ran from 29 July by reason of r 36(1). He went on to say this:

PROSECUTOR: And if your Honour is of the view that by virtue of the affidavits today leave is required, I make that application under 177(5) (T 11.52-54).

12 Her Honour appears to have approached the matter upon an acceptance of the plaintiff’s submission that leave could not be granted to extend time under subs (4) more than six months after the date on which the offence is alleged to have been committed (T 16.30-38).

13 Her Honour gave reasons ex tempore. She considered the meaning to be given to r 36(1) and, in particular, the significance of the inclusion of the qualification “in the absence of evidence to the contrary”. In this connection she observed:

In looking at what the intention clearly was it seems to me that if I consider what was proposed when the legislator set out “in absence of evidence to the contrary” that it must be intended that the evidence be to the knowledge of someone that being the server of the document. I do not think the intention was that this evidence to the contrary could be brought at any point in time to show that service had not taken place. I am satisfied that it must have been intended that it would exercise on the mind of the person making the service. The intention in Rule 36, is whether or not the person who is attempting to serve the documents has evidence to the contrary that the service has not been effected within the four days allowed (T 17.11-25).
…
[T]he provision for service specifically enables service by post and sets out a deeming of when it should have happened, so I really think that the argument that you can bring to the knowledge of the informant, after the six months has expired, that in fact the service occurred earlier than the four days and then bind the prosecution by that would not have been within the intention of the legislation because how would the informant have known. I think the suggestion by the defence that they were required to make further enquiries isn’t born out and I find that the proceedings were validly commenced (T 17.30-41).

14 Counsel for the plaintiff applied for an adjournment in order to bring the present proceedings. Her Honour acceded to that course and adjourned the proceedings to 2 May 2006 for mention.

15 On the hearing of the plaintiff’s summons counsel for the Director of Public Prosecutions (The Director) conceded that the Magistrate had erred in her approach to the construction of r 36(1). In written submissions he observed that her Honour had determined that the words “in the absence of evidence to the contrary” in r 36(1) were to be read as meaning “in the absence of evidence to the contrary that has been brought to the attention of the prosecutor” and he acknowledged that there was no basis for confining the words of the Rule in this way (WS [11] and [12).

16 In the Director’s submission it was premature for the plaintiff to bring the present proceedings claiming orders including that the proceedings had not been validly commenced. This was because the prosecutor’s application for leave under s 177(4) to extend the 7-day period had not been determined. In his submission it was open to the Magistrate to extend the time for filing the copy of the notice bearing the endorsement as to service by one day to 3 August 2005 and Sharman was not authority to the contrary. This was because, unlike the facts in Sharman, the extension of time that the prosecutor sought was with respect to a notice, which had been filed in the court within the limitation period. That is so. Counsel for the plaintiff, contrary to the submissions that he advanced before the Magistrate, accepted this to be the case.

17 The determination that the plaintiff invites this Court to quash is that the proceedings against her were validly commenced (T 17.41). In her counsel’s submission, given the concession made by the Director, she was entitled to have the Magistrate’s determination quashed. It would then be a matter for the informant to make any application for leave under

s 177(4). I am not persuaded that is the approach that this Court should take. The determination of the jurisdictional question before the Magistrate required consideration of the Prosecutor’s application (set out at paragraph [11] above and foreshadowed at T 11.08) for leave to extend time under s 177(4). The Magistrate approached the application upon an acceptance of the plaintiff’s submission that she was without power to grant the leave. As noted, that submission was not pressed before me. Indeed, no submission was put on the plaintiff’s behalf that there existed any good reason why leave to extend the time under subs (4) by one day would be withheld.

18 I consider that the appropriate course is to decline to grant the plaintiff the discretionary relief that she claims and to remit the proceedings to the Local Court for the determination of the prosecutor’s application for leave under s 177(4).

ORDERS

1. Dismiss the plaintiff’s summons.

2. Remit the proceedings to the Local Court for the determination of the prosecutor’s application for leave under s 177(4) of the Criminal Procedure Act 1986 to extend the time for filing the copy of the court attendance notice containing an endorsement as to service to 3 August 2005.

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26/10/2006 - Amendment to cover sheet - Paragraph(s) 0