Director of Public Prosecutions (NSW) v Sinton - [2000] NSWSC 473

NEW SOUTH WALES SUPREME COURT

CITATION: Director of Public Prosecutions (NSW) v. Sinton [2000] NSWSC 473 revised - 4/12/2000

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 10491/2000

HEARING DATE{S): 08/05/00, 09/05/00

JUDGMENT DATE: 31/05/2000

PARTIES:
Director of Public Prosecutions (Plaintiff)
Malcolm Sinton (Defendant)

JUDGMENT OF: O'Keefe J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT JUDICIAL OFFICER: P. Johnson LCM

COUNSEL:
M. Marien for Plaintiff
C. Porter Q.C. with R. Baker for Defendant

SOLICITORS:
S.E. O'Connor Solicitor for Public Prosecutions
256 Castlereagh Street, Sydney NSW 2000
Telephone: 9285 - 8642

Walter Madden Jenkins
5th Floor, Suite 501D
154 Elizabeth Street, Sydney NSW 2000
Telephone: 9264 - 3711

CATCHWORDS:
Criminal procedure
Back up offence
Related offence
District Court - powers and duties
Local Court - powers and duties
Meaning of "is to produce", "is to order", "is to deal with"
Effect of non-compliance with statutory requirement
Mandatory provisions
Directory provisions
Test - purpose of the legislation
Legislative scheme or regime
Permanent stay of proceedings
Maxim - quilibet potest renunciare juri pro se introducto
Discretion
Review of exercise of discretion - principles

ACTS CITED:
Criminal Procedure Act, 1986, Part 10 Sections 34, 34A, 35, 36
Criminal Procedure Legislation (Amendment) Act,1990
Crimes Legislation Amendment Act, 1998 Schedule 1
The Constitution Act, 1902 (NSW)

DECISION:
Summons dismissed
Plaintiff to pay the Defendant's costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

Wednesday 31 May 2000

10491/00 - DIRECTOR OF PUBLIC PROSECUTIONS (NSW) -V- MALCOLM SINTON

JUDGMENT

BACKGROUND
HIS HONOUR:

Malcolm Sinton (the defendant) was involved in a motor vehicle accident on 5 November 1997 in which one person was killed and another injured. As a consequence, he was charged with the indictable offences of driving in a manner dangerous occasioning death (Crimes Act 1900 s 52A(1)) and driving in a manner dangerous occasioning grievous bodily harm (Crimes Act 1900 s 52A(3)). He was also charged with the summary offence of negligent driving (Traffic Act 1909 s 4(1)).
On 23 September 1998 the defendant was committed to stand trial in the District Court at Wollongong in respect of the charges under s 52A(1) and (3) of the Crimes Act 1900. At the time of such committal the prosecutor advised the presiding Magistrate that the charge of negligent driving was a back-up charge, but did not produce to the Magistrate a certificate under s 34A(1)(b) of the Criminal Procedure Act 1986 specifying such charge. This is said to have occurred because the provisions were then relatively new and the prosecutor was unaware of them. The factual situation is novel, unlikely to be common in the future.
On 29 July 1999, following a hearing in the District Court, the jury, at the direction of the presiding Judge, returned verdicts of not guilty on both charges and no application was made pursuant to s 35(2) of the Criminal Procedure Act 1986 to the trial Judge in respect of the charge of negligent driving.
The charge of negligent driving was subsequently re-listed before a Magistrate in the Wollongong Local Court and, following argument, the Magistrate on 13 December 1999 permanently stayed the prosecution of the defendant on such charge. The Director of Public Prosecutions (the DPP) has appealed from that decision of the Magistrate and has sought orders to set the Magistrate's decision aside and to remit the matter to him to hear and determine the charges against the defendant. For his part, the defendant has filed a notice of contention seeking to have the decision of the Magistrate confirmed, either on the grounds on which the Magistrate determined that the further prosecution of the negligent driving charge should be permanently stayed or, alternatively, on the ground that the failure of the DPP to comply with the provisions of s 34A(1)(b) (now s 36(1)(b)) of the Criminal Procedure Act 1986 deprived the Wollongong Local Court of jurisdiction to hear and determine the charge of negligent driving or otherwise provided a ground for staying the prosecution.
STATUTORY PROVISIONS
Prior to 1990 there was no power in the Supreme Court or the District Court to deal with charges for summary offences which had been laid as a consequence of the events which had given rise to indictable offences which had been tried in those courts. It was common to refer loosely or colloquially to such charges as "back-up charges". The procedure adopted in respect of such charges was that in the event that an accused person was acquitted of the indictable offences, the summary offences were then dealt with in the Local Court. There was argument in some cases that the acquittal on the indictable offences effected a discharge in respect of the summary offences either on the basis that there was an autre fois acquit or that it was otherwise not open to the Crown to pursue the back-up charges. In the event that an accused person was convicted, the summary offences were dealt with, if still appropriate, or simply not proceeded with by the Crown.
This procedure was said to be wasteful of the time of the Local Court and to give rise to possible unfairness to an accused person. As a consequence, it was considered by the legislature that in the interests of justice the position should be clarified. This was done by the insertion of Pt 10 into the Criminal Procedure Act 1986 (the Act) in 1990. This empowered the trial court, be it the Supreme Court or the District Court, to deal with a related summary offence at the completion of a trial, provided that the consent of both the defendant and the prosecution was forthcoming. The relevant parts of this amending legislation were as follows:
"PART 10 - SUPREME OR DISTRICT COURT MAY DEAL WITH SUMMARY OFFENCES RELATED TO INDICTABLE OFFENCES
Definitions and application
34.(1) In this Part;'court' means the Supreme Court or District Court;
'related summary offence' in relation to an indictable offence, means a summary offence capable of being dealt with by a Local        Court
that arises from substantially the same circumstances as those from which the indictable offence has arisen.
...
Supreme or District court may deal with certain summary offences related toindictable offences
35.(1) A court may, at the conclusion of the trial of an accused person for an indictable offence deal with any related summary offence           with which the accused person has been charged.
(2) A court may deal with a related summary offence on its own motion, or on the application of the accused person or the prosecutor, but may not do so unless both the accused person and the prosecutor have consented to the offence being dealt with under this Part.
(3) Nothing in this section requires a court to deal with a related summary offence under this Part.
(4) A court may deal with a related summary offence with which an accused person has been charged even though it is not doing so in relation to a related summary offence with which another accused person in the same proceedings is charged.
Procedures for dealing with relating summary offences
36.(1) The court is to deal with a related summary offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for any indictable offence in the same proceedings and additional evidence given under this section.
(2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the related summary offence.
(3)         In sentencing or otherwise dealing with      a person for a related summary offence, the court has the same functions and is subject to the same restrictions and procedures, as a Local Court constituted by a Magistrate.
(4)         Rules of court may be made with respect to related summary offences dealt with under this Part.
Remission of related summary offence to
               Local Courts
37. A court which is dealing with a related summary offence under this Part may, at any time, remit the matter to a Local Court."
As a consequence of this legislation a judicial gap was filled, albeit in a way that was entirely in the discretion of the Supreme Court or District Court.
The provisions in s 35(1) gave to the trial court a general discretion to deal or not to deal with a related summary offence. This was reinforced by s 35(3). Since the jurisdiction was entirely discretionary and there was no requirement for the trial court to deal with such matters, even with the consent of the accused person and the prosecutor, trial courts tended not to utilise the jurisdiction. The absence of any machinery for its implementation contributed to this as well.
The legislation was further amended in 1997 because of what was perceived to be an under-utilisation of the amendments effected in 1990. The 1997 amendments came into force on 30 March 1998.
In his Second Reading Speech in relation to these later amendments the Attorney-General adverted to the absence of adequate machinery in Pt 10 when he said that the under-utilisation of Pt 10 had arisen:
"... in part because it is often unclear in the trial court, and to the prosecutor, which summary matters are related to which indictable matters and in some cases whether those summary matters are actually back-up matters or are merely other related summary matters. Accordingly trial courts often decline to deal with any of the summary matters, electing instead to allow a local court to sort them out at some later time... The amendments will require the prosecuting authority to tender to the local court, at the time of committal for trial a certificate detailing, in respect of each charge to be dealt with on indictment any 'back-up' summary offences and any other related summary offences ... the proposal will ensure that clear information is provided to the trial court as to what summary matters exist, and whether those summary matters are 'back-up
summary matters' or merely 'related' summary matters (Hansard 7 May 1997 page 8252)."
The Second Reading Speech noted that whilst the 1997 amendments to Pt 10 did not "formally" provide for a stay of proceedings in the Local Court in relation to matters which had been included in a certificate under the Part, it was the practice of those courts to await the outcome of the trial court's deliberations in relation to such matters, and it was envisaged that this practice would continue.
The amending legislation in 1997 added a definition of "back up summary offence", added a consequent phrase as to the definition of "related summary offence" and changed its name, amended s 34A, amended s 35(1) replacing it with a new s 35(1) and (1A), and made a consequential amendment to s 35(2). Sections 37 and 37 were left in their original forms. As amended Pt 10 then provided:
"34. Definitions and application
(1)         In this Part:
back up offence, in relation to an indictable offence, means an offence:
(a)         that is:
(i)   a summary offence, or
(ii) an indictable offence that is    capable of being dealt with
summarily by a Local Court in accordance with the provisions of Part 9A, and
(b)         all the elements of which are elements that are necessary to constitute the first indictable offence, and
(c)          that is to be prosecuted on the same facts as the first indictable offence.
court means the Supreme Court or District Court,
related offence, in relation to an indictable offence, means an offence:
(a)         that is:
(i)   a summary offence, or
(ii)          an indictable offence that is capable of being dealt with
summarily by a Local Court in accordance with         the provision of
Part 9A, and
(b)         that arises from substantially the same circumstances as those from which the first indictable offence has arisen, but does not include a back up offence.
(2)         This Part extends to proceedings commence, but not concluded, before the commencement of this Part.
34A        Certification of back up and related offences
(1)         On committal for trial of a person charged with an indictable offence:
(a)         the prosecuting authority must inform the Magistrate (or justice or justices), as to whether or not the person has been charged with any back up              offence or related offence, and
(b)         if the person has been charged with any back up offence or related offence, the prosecuting authority is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged.
(2)         This section does not prevent the person      referred to in subsection (1) being charged with any offence after committal.
35.         Manner of dealing with certain offences relating to indictable offences
(1)         If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court:
(a)         is (unless it considers it     inappropriate
in the circumstances to do so) to order that the charge in
relation to each back up offence be dismissed, and
(b)         may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part. (1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court may deal with any back up offence or related offence with which the person has been charged in accordance with this Part.
(2)         A court may deal with any back up offence referred to in subsection (1)(b) or (1A) or a related offence on its own motion, or on the application of the accused person or the prosecutor, but may not do so unless both the accused person or the prosecutor, but may not do so unless both the accused person and the prosecutor have consented to the offence being dealt with under this Part.
(3)         Except as provided by subsection (1), nothing in this section requires a court to deal with a back up offence or related offence under this Part.
(4)         A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged.
36.         Procedures for dealing with certain offences related to indictable offences
(1)         The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.
(2)         The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the     back up offence or related offence.
(3)         In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions and is subject to the same restrictions and procedures, as a Local Court constituted by a Magistrate.
(4)         Rules of court may be made with respect to back up offences or related offences dealt with under this Pat.
37.         Remission of certain offences related to indictable offences to Local Courts
A court which is dealing with a back up      offence or related offence under this Part may, at any time, remit the matter to a Local Court."

ANALYSIS

Section 34A uses two different verbs in relation to the functions cast upon the prosecuting authority, namely, "must" and "is to produce". Section 34A(1)(a) provides that "the prosecuting authority must inform the Magistrate ..." Section 34A(1)(b)provides that the "prosecuting authority is to produce to the court a certificate ..." (Italics added)
It is clear from s 34A(2) that the requirements of s 34A(1) apply to all back-up and related offences with which an accused person has already been charged at the time such person is committed for trial. If other charges are preferred after committal, s 34A(1) could not have any application to them, since the time at which the functions are to be performed by the prosecuting authority is "on committal for trial". Nevertheless, the legislature has expressly confirmed this, no doubt for more abundant caution.
In construing s 34A(1)(b) it is necessary to ascertain whether the compound verb "is to produce" is to be understood in the sense of a command or requirement, i.e. in the sense of "must", or whether it should be understood to have a meaning that is merely facultative; i.e., enabling the act to be done, but not requiring or commanding that it be done.
As a matter of construction, like words or phrases which are used in the same section or in related sections of an Act will usually be given the same meaning. On the other hand, when different words (in this case, verbs) are used, they are usually expected to carry different meanings. It is therefore useful to consider the use of the same and cognate verbs in ss 35 and 36 of the Act.
Section 35(1)(a) uses the compound verb "is ... to order". This provision is to be contrasted with the use of the permissive "may" in s 35(1)(b), (1A), (2) and (4). Whilst s 35(1)(a) has a discretionary exception created by a parenthetical clause, namely "(unless it considers it inappropriate in the circumstances to do so)", the provisions of s 35(3) make it clear that, dehors such exception, s 35(1)(a) requires the court to exercise the function conferred upon it by s 35(1)(a). Were this not so it would be unnecessary to include the words "Except as provided by sub-section (1)" in s 35(3).
An examination of s 36 reveals a similar use of a compound verb in contrast to the discretionary verb "may". Section 36(1) provides that the court “is to deal” with any back-up or related offence "without a jury and on the basis only of evidence given during the trial for the relevant indictable offence ...". This provision clearly gives a command to the court in relation to the procedure to be taken, and proscribes any other procedures. There can be no doubt that if a trial Judge in the District Court were to empanel a jury and take a verdict on such a charge, the outcome would be a nullity. The proscriptions in s 36(1) are to be contrasted with the facultative or permissive provision of s 36(2), which gives the prosecutor and the accused person the option of calling additional evidence, but only "with the leave of the Court". Section 36(4) empowers the making of rules with respect to back-up and related offences dealt with under Part 10 but does not require them to be made. No rules have yet been made pursuant to this provision. Undoubtedly when used in Part 10 of the Act "may" means "may". (Contrast Ward v. Williams (1953) 19 LGR 190.)
From the foregoing it can be seen that when a compound verb is used in Pt 10, it is used in the sense of a command, an imperative stating a requirement or imposing a restriction. The compound verbs are used in the sense of "shall" or "must", in the same way as in the emphatic statement: "It is to be"; a use similar to the old Navy command: "Make it so, Mr Hornblower". Thus, in my opinion, the compound verb "is to produce" in s 34A(1)(b) should be understood in the sense of imposing a requirement in the same way as the word "must" does in s 34A(1)(a).
This is consonant with the legislative intent expressed by the Attorney-General in his Second Reading Speech:
"... the amendments will require the prosecuting authority to tender to the local court ... a certificate ..." (Supra, italics added.)
Part 10 of the Act was introduced to enable the Supreme Court and the District Court to deal with matters that they would not otherwise have been able to deal with. As enacted in 1990, the power created by the Part extended only to a related summary offence. A related summary offence was then defined as meaning "in relation to an indictable offence, ... a summary offence capable of being dealt with by a Local Court that arises from substantially the same circumstances as those from which the indictable offence has arisen". The power so conferred on the trial court conferred a benefit on an accused person. That person was given the option of consenting to any related offences being dealt with by the Court before which the indictable offence was dealt with.

The 1997 amendments extended the benefits so that they applied not merely in respect of a related offence, but also in respect of a back-up offence. Together these two categories of offences are apt to cover not merely those summary offences which depended "on the same facts" as the indictable offence (back-up offence) but also those which arose "from substantially the same circumstances" as those from which the indictable offence had arisen (related offence)- a wide coverage.
There were benefits to the justice system from the introduction and later expansion of Pt 10. Some of these were adverted to by the Attorney-General in his Second Reading Speech (supra). They included those conferred on an accused person. Prior to the enactment of Pt 10 of the Act there was no way in which an accused person could know whether or not what were loosely of colloquially described as back-up offences would be prosecuted after the trial of an indictable offence which arose out of the same or a similar set of circumstances. The amendments effected to Part 10 in 1997 made the circumstances in which such offences were able to be dealt with by the trial court or prosecuted summarily after the proceedings on indictment had been concluded quite clear. When the regime provided for in s 34A(1)(a) and (b) has been complied with, an accused person is in a position to know, before his or her trial for the indictable offence, that evidence given by him or her on such trial would be available to be used in relation to outstanding summary offences which fell within the definitions of "related offence" or "back-up offence". When any such offences have been charged prior to the accused person's committal for trial and the procedures specified in s 34A complied with, an accused person is put in a position of being able to make his or her election on an informed basis as to whether or not to give evidence at the trial of the indictable offence; a significant benefit that may impact upon, and be a very important factor in relation to the trial process.
The benefit introduced by s 34A of the Act is valuable to an accused person.
It is clear there was no compliance or attempted compliance with s 34A(1)(b) of the Act notwithstanding that it is couched in terms that command or require the doing of a particular act, in the same way as s 34A(1)(a) does. In the light of this conclusion it is necessary to determine the effect of such non-compliance.
In Clayton v. Heffron (1960) 105 CLR 214, Dixon CJ, McTiernan, Taylor and Windeyer JJ said:
"Lawyers speak of statutory provision as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly null and void. It is almost unnecessary to say that the decided cases illustrating the distinction relate to much humbler matters than the validity or invalidity of the Constitution of the Legislature of a State. But in them all the performance of a public duty or the fulfilment of a public function by a body of persons to whom the past is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from a conditions or directions laid down as meaning complete invalidity would work, inconvenience or worse on a section of the public is treated as a powerful consideration against doing so." (At 247)
They also pointed out that:
"In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in a statutory power as to the effect on validity of departures from procedures laid down. The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure prescribed." (Supra at 246)
Fullagar J dissented in Clayton v. Heffron, although he embraced "the well known distinction between enactments that are 'mandatory' or 'imperative' or 'absolute' and enactments which are merely 'directory'. He quoted with approval Craies on Statute Law (1952) 5th ed p 240. However, in determining the characterisation effect of s 5B of the Constitution Act 1902 (NSW), which prescribed the manner and form in which amendments to the Constitution of New South Wales were to be effected, Fullagar J. sought to ascertain the legislative intent in relation to the particular provision and for that purpose examined the process which the legislature had provided in the section. I shall return to this later in the judgment.
The distinction between mandatory and directory provisions has been criticised. In Tasker v. Fullwood (1978) 1 NSWLR 20 it was said that it is "an invitation to error" to examine whether a particular "statute is mandatory or directory in its terms" (at 24) and that:
"... it is wrong to say that, if a statute is couched in directory terms, the act will be invalid unless substantial performance is demonstrated. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation is also described as directory in terms: Victoria v. The Commonwealth (1975) 134 CLR 81 to 118."
The correct approach was said to be based on the following propositions:
"(1) The problem is to be solved in the process of construing the relevant statute. Little, if any assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done or whether the validity of the act would be preserved notwithstanding non-compliance. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute.
(4) The intention being sought is the effect upon the validity in question having regard to the nature of the pre-condition, its place in the legislative scheme and the extent of the failure to observe its requirement." (At 23-24)
The approach taken in Tasker v. Fullwood was endorsed by the High Court in Project Blue Sky v. Australian Broadcasting Authority (1998) 194 CLR 35. McHugh, Gummow, Kirby and Hayne JJ 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. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. 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 of 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."
and:
"The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. 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'."
In the present case the statutory provision in question casts obligations on the prosecuting authority. It does so in positive, affirmative and imperative terms. The section is included in a part of the Act which was amended so as to require certain things to be done, as opposed to merely permitting things to be done, as had been the situation under the 1990 enactments. By virtue of the 1997 amendments Pt 10 was made stronger, more useful and beneficial and those benefits extended not merely to the justice system operating through the courts but to an accused person. The provision was not introduced solely for the benefit of the Crown. That being so, it is not up to the Crown to renounce such benefits by a failure or refusal to fulfil the commands included in s 34A(1)(a) and 1(b). Whilst not directly applicable, the maxim quilibet potest renunciare juri pro se introducto is not without relevance. Were the provisions solely for the benefit of the Crown, the argument that it could renounce that benefit would assist the proposition that if the provision were not complied with the effect of non-compliance would not be to invalidate that which followed and was dependent upon the provision or provisions not complied with. However, as Sugerman J pointed out in James v. Ronald (1958) 75 WN (NSW) 473, where the provision is "something more than jus pro se introductum", such an approach is inappropriate since a person "cannot renounce that which has been introduced for the benefit of another (person)" (at 478); (see also Broom's Legal Maxims 10th ed (1939) p 480).
I have already dealt with the requirement in s 36(1) that the trial court deal with a back-up or related offence without a jury, and concluded that were such an offence to be dealt with by a jury the outcome would be void, a nullity. In one sense, s 36(1) is procedural. It prescribes the procedure for determining back-up offences or related offences by the trial court. However, the provision is also substantive in the sense that it confers upon the accused person a right to a particular form of trial. It is the end point of the regime created by Pt 10 of the Act. Should the starting point of the regime be treated in any different manner? In a sense s 34A is also procedural, but no more than is s 36(1). It is also a section which is the lead-up to the benefits or rights conferred by Pt 10 and in particular the right created to have each back-up offence in respect of an indictable offence for which the accused person has been found guilty, dismissed (s 35(1A)).
Section 34A is part of a legislative continuum which has the general effect of conferring rights and benefits on an accused person, as well as on the justice system. It is in effect a statutory code in which each provision has a role to play, work to do. It would be a strange construction of the Part if the end point of the process was of such a kind that non-compliance with its requirement would invalidate the outcome, but a like effect was not given to the opening steps in the same regime.
The reasoning of Fullagar J in Clayton v. Heffron (supra) in relation to the provisions of s 5B of the Constitution Act 1902 (NSW) is material in this context:
"A manner and form are prescribed by section 5B, and that manner and form must be observed if a valid law is to be produced. Any prescription of manner and form may be repealed or amended, but, while it stands, the process prescribed by it must be followed. That was decided Trethowan's case and I think that the whole of what is prescribed by section 5B relates to manner and form. It does not seem to me to be possible to say that some of the requirements of the section are matters of manner and form while others are not. The section describes one entire process - a series of steps, one following on another - and only the completion of the entire process can produce a valid law."
(Supra at 262)
In the present case, that line of reasoning is directly applicable to Pt 10 of the Act. The Part provides for and describes a regime or entire process. It sets out a series of steps, one following the other. It is only if such steps are followed that a valid end result or outcome is achieved.
Compliance by the Crown with s 34A(1)(a) and (1)(b) is a requirement. This is apparent both from the words of the Act itself and from the statement by the Attorney-General in his Second Reading Speech (Interpretation Act 1987 s 34(2)(e)). The legislative intent may be tested by reference to a situation in which a person is charged with an indictable offence and a summary offence, which is a back-up offence within the meaning of s 34 of the Act. If the Crown has not complied with s 34A(1), the trial court will not be in a position to fulfil the function imposed upon it by s 35(1)(a) in the event that the accused person is found guilty of the indictable offence. This could be a substantial detriment to an accused person. The requirement that the trial court "is ... to order that the charge in relation to each back-up offence be dismissed" means that an accused person is not in jeopardy of further proceeding in respect of the same facts as those involved in the indictable offence, with all the costs and other detriments that such a jeopardy would carry with it. However, absent the informing of the Magistrate and production of a relevant certificate as required by s 34A, there would be an assumption on the part of the trial court that there is no back-up offence.
Counsel for the DPP submitted that s 34A(1)(b) was merely a "good housekeeping" provision. As a consequence, so his argument ran, it should not be characterised as imposing any obligation on the prosecuting authority and non-compliance with it did not have any affect. However, his argument stopped short of asserting that the same was true in relation to the requirements of s 34A(1)(a). No doubt this was because of the use of the word "must" in s 34A(1)(a). However, as I have construed the Act, the use of the compound verb "is to produce" in s 34A(1)(b) has the same meaning as the use of the verb “must” in s.34A(1)a. The consequence of the argument advanced on behalf of the DPP is that s 34A(1)(b) has no real work to do. By logical extension, the same can be said in relation to the whole of s 34A(1), if the argument of the DPP is accepted. However, the adoption of a construction that leads to such a consequence is to be avoided, both in relation to s 34A(1) as a whole and s 34A(1)(b) as part of that section. Moreover, the argument in relation to s 34A(1)(b) flies in the face of the statement made by the Attorney-General in his Second Reading Speech that s 34A(1)(b) imposed a requirement on the prosecuting authority.
Counsel for the DPP further submitted that s 34A(1) was merely procedural and created no rights in the defendant. However, the Part itself does confer benefits on an accused person. Furthermore this argument seeks to isolate one element in the process or regime created by Pt 10 of the Act. Yet it is inappropriate to consider each sub-section in the Part in isolation. The approach of Fullagar J in Clayton v. Heffron (supra) sounds a powerful warning against adopting such an approach.
Finally in this context, counsel for the DPP submitted that "to hold that s 34A(1)(b) is a mandatory provision produces inconvenience and effectively defeats the purpose of Pt 10 which is to facilitate the disposal of back-up and related offences in the court of trial". This argument proceeds on the basis that it is alright for a prosecuting authority to ignore the provisions of s 34A(1)(b), probably the whole of s 34A(1). But prosecuting authorities should know and comply with statutory provisions which require them to do something. They will not be encouraged to do so if they know they can fail to do so with impunity. Whilst the failure to comply with s 34A(1)(b) in the present case is said to be a matter of oversight, cases can be envisaged in which a deliberate decision could be made not to comply with the section and thus deprive an accused person of the rights, benefits and privileges conferred by ss 35 and 36 of the Act. Furthermore, the statement of the purpose of the Part in this part of the argument is less than complete (vide supra).
If the propositions referred to in Tasker v. Fullwood (supra) are applied, it can, in my opinion, properly be said that on construing the statute by reference to the words of the relevant section in the context of the Part of the Act, the scope and object of the Part and the legislative intent as stated by the Attorney-General in his Second Reaching Speech, the result is that compliance with its provisions is essential; non-compliance vitiating. The nature of the provision, its place in the legislative scheme, and the effects of a non-compliance with the provisions of the relevant sections in the Part also point to the invalidating effect of non-compliance.
If the test propounded by the High Court in Project Blue Sky v. Australian Broadcasting Authority (supra at 390), namely:
"to ask whether it was a purpose of the legislation that an act done in breach of the provision would be invalid"
and that

"in determining the question of purpose regard must be had to the relevant provision and the scope and object of the statute"

is applied, the result is the same. Furthermore, the approach adopted by Fullagar J in Clayton v. Heffron (supra) brings about the same result.

Even if the terminology criticised in Tasker v. Fullwood (supra), Project Blue Sky v. Australian Broadcasting Authority (supra) and Barwick v. Law Society of New South Wales (2000) 169 ALR 236 at 245-246 is resorted to, the provisions of s 34A can properly be seen to be mandatory in the sense that such term was used by the High Court in Clayton v. Heffron (supra).
The end point reached as a result of adopting each of the above approaches is that non-compliance with the terms of the section deprives the trial court, be it the Supreme Court or the District Court, of the powers conferred by Pt 10 of the Act- powers which it did not have until the enactment of that Part of the Act.
In order to be able to exercise those powers, the statutory provisions that set out the steps in the process, must be complied with. Only then, may the powers be exercised and they must be exercised in accordance with the Part.
For these reasons, I am of opinion that the defendant in the present proceedings, the accused person before the trial court and the defendant before the Local Court, was deprived of the benefit, entitlement, privilege or right to have the trial court exercise its powers under ss 35 and 36 of the Act. Furthermore, the accused person in such a situation was deprived of the opportunity to make informed decisions in relation to the conduct of his trial, whether those decisions relate to an election to give evidence or to other matters relating to the conduct of the trial.

The failure of the prosecuting authority to comply with s 34A(1)(b) of the Act had the effect of depriving the trial court (in this case the District Court) of jurisdiction to deal with the charge of negligent driving. Furthermore, it resulted in the summary offence never having left the Local Court. If the requirements of s 34A had been complied with, the certificate would, in the ordinary course of administration, have been forwarded to the District Court - as the Magistrate indicates in his judgment. The District Court Judge would then have been aware of the pendency of such matter and of the court's jurisdiction in relation to it under Part 10 of the Act. Furthermore, the defendant would have been aware that he had the right to request the trial court to deal with the summary offence and the benefit, capacity or privilege of being able to consent to it being so dealt with.
The failure on the part of the prosecuting authority to comply with the provisions of s 34A meant that the Local Court retained sole jurisdiction in respect of that summary offence. This is what the Magistrate in the Local Court held.
STAY OF PROCEEDING
Having determined that the summary offence of negligent driving was still in the Local Court, the Magistrate proceeded to consider the principles applicable to a permanent stay in relation to that summary offence.
The power to grant a stay involves the exercise of a discretion (Dietrich v. The Queen (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J.) It is a power possessed by a Local Court in the course of conducting the summary trial of an information. Such a court, like a superior court, has the power in appropriate circumstances permanently to stay criminal proceedings (DPP v. Shirvanian (1998) 44 NSWLR 129). The power of a court to grant a stay of proceedings as part of its necessary powers to ensure a fair trial was firmly established in Barton v. The Queen (1980) 147 CLR 75 Gibbs ACJ and Mason J)at 96 made this clear. Murphy J expressed the principle in the following terms:
"Every court hearing criminal proceedings has power to control those proceedings in order to avoid injustice; where necessary it may stay proceedings." (At 107)
Wilson J linked the power to grant a stay to the concept of abuse of process which carried with it "the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect that goes to the root of the trial, of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences." (at 111)
A stay granted in respect of the prosecution of serious criminal offences where the accused person is unable to obtain legal assistance and as a consequence is without legal representation, is one example of such a stay (Dietrich (supra)); a stay granted pending the hearing of a Basha inquiry consequent upon the Crown declining to provide particulars of an offence is another.
The onus of establishing that the circumstances are appropriate for the grant of a stay lies on the applicant for that stay. It is not an onus which is discharged lightly (Barron v. Attorney-General (NSW) (1987) 10 NSWLR 215), indeed to satisfy the onus the applicant needs to show strong and powerful grounds: Barron v. Attorney-General (NSW) (supra at 219; 233).
The exercise of the discretion to grant a stay requires the Court to consider, and in an appropriate case to safeguard, the interests of the accused person. In Jago v. District Court (NSW) (1989) 168 CLR 23, Mason CJ said:
"In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness ... The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial" (at 33).
and:
"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences'." (at 34; see also Barton v. The Queen (supra).
Gaudron J said:
"The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is in essence a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised."
In this context it is also relevant to note the remarks of Deane J in Re Queensland Electricity Commission Ex Parte Electrical Trades Union of Australia (1987) 61 ALJR 393 that:
"The prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals." (at 399)
Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by the court in Attorney-General (NSW) v. Watson in refusing special leave to appeal to exercise "sparingly and with the utmost caution". (supra at 76)
The Magistrate referred to the above principles. He recognised that the power to grant a stay was discretionary, to be exercised in exceptional cases, and sparingly. He expressly stated that the granting or withholding of a stay involved an exercise of the court's discretion.
He quoted and applied the analysis of the power as set out in the judgments of Brennan and Gaudron JJ in Jago v. District Court (NSW) (supra). He referred to and applied Barton v. The Queen (supra) and, whilst referring to the cost and stress to the defendant, did not rely upon these as grounds as the basis for the exercise of his discretion. The essential grounds on which he exercised his discretion in favour of the defendant were the lost opportunity before the District Court and the effluxion of time. These meant that the evidence before the Local Court would be unlikely to be the same as that before the District Court. Furthermore, he recognised that memories faded, that as a consequence the recreation of a situation would be less likely to be adequate, certainly not as precise as it had been at the trial, and that there was a prospect of different findings in relation to the same set of circumstances, based upon different evidence and a different judicial mind being brought to bear on such evidence.
This, the Magistrate held, was a prejudice to the defendant that went to the root of the process hearing and determination and could not be relieved by anything that he could do. He therefore was of the view that:
"This is one of those rare cases where exceptional circumstances have been established, where despite using the utmost caution, which I have endeavoured to do, it seems to me that this is a case where a permanent stay of proceedings should be granted and I do so."

CONCLUSION

I do not detect any error in the approach taken by the Magistrate in relation to his exercise of the discretionary function of granting a permanent stay. He stated the principles correctly. The outcome does not itself bespeak error. No error is to be found in the application by him of the principles to the facts as found. Interference with a factual finding would be inappropriate, having regard to the appeal mechanism provided for in this case. Moreover, interference with the exercise of a discretion is circumscribed by long-established principles. In House v. The King (1936) 55 CLR at 499 Dixon, Evatt and McTiernan JJ said:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonably or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In my opinion, the conclusion reached by the Magistrate in the exercise of his discretion does not reveal any error of the kind described in House v. The King. There is no proper basis for interfering with the exercise by the Magistrate of his discretion in the instant case. He acted on a correct principle. He does not appear to have been influenced by extraneous or irrelevant matters. He does not appear to have mistaken the facts. He does not appear to have failed to take into account a material consideration. In those circumstances, there is no basis in law on which this court with the jurisdiction that it has in this case would be entitled to interfere with the exercise of that discretion.
For those reasons, I am of the opinion that the decision of the Magistrate should stand and that the summons should be dismissed.
The order of the court will be the summons is dismissed. The plaintiff is to pay the defendant's costs.

**********

LAST UPDATED: 04/12/2000