Director of Public Prosecutions v Martyn Nicholls Electrics Pty Ltd
[2018] VCC 1039
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-18-0643
| Director of Public Prosecutions | Appellant |
| v | |
| Martyn Nicholls Electrics Pty Ltd | Respondent |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 29 June 2018 | |
DATE OF RULING: | 29 June 2018 | |
CASE MAY BE CITED AS: | DPP v Martyn Nicholls Electrics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1039 | |
REASONS FOR JUDGMENT
---
Subject: CRIMINAL LAW
Catchwords: CRIMINAL LAW – DPP Appeal against sentence – Notice of appeal failing to state general grounds of appeal – Whether notice of appeal valid – Whether notice of appeal capable of amendment – Whether leave to amend should be granted – Whether permanent stay as an abuse of the process of the court the appropriate order
Legislation Cited: Criminal Procedure Act 2009 ss 254, 257, 258, 259 – County Court Criminal Procedure Rules 2009 Order 3.03(1)(b), Form 3C – Magistrates’ Court Act 1989 ss 85, 88, schedule 6
Cases Cited:R v Clarke [1996] 2 VR 520 – Reardon v Magistrates’ Court of Victoria [2018] VSCA 76
Ruling: Permanent stay granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr M White | Oakleys White Lawyers |
HIS HONOUR:
1 By Notice of Appeal dated 21 March 2018, the Director of Public Prosecutions (Vic) appeals pursuant to s 257 of the Criminal Procedure Act 2009 (‘the Act’) against a sentence imposed on Martyn Nicholls Electrics Pty Ltd (‘the respondent’) by the Magistrates’ Court of Victoria sitting at Sale.
2 On 21 February 2018, the respondent was found guilty in the Magistrates’ Court on four charges of failing as an employer, so far as reasonably practicable, to provide and maintain for employees a working environment that is safe and without risks to health, contrary to ss 21(1) and 21(2)(e) of the Occupational Health and Safety Act 2004.
3 On each charge the learned magistrate sentenced the respondent without conviction to pay a fine in the sum of $3000.00 and ordered the respondent to pay costs in the sum of $1000.00.
4 The facts giving rise to the charges are set out in the Appellant’s undated Summary of Facts and need not be detailed here.
5 The Notice of Appeal, which purports to be in the form of Form 3C as prescribed by the County Court Criminal Procedure Rules 2009 (‘the Rules’), contains the following:
TAKE NOTICE that I apply to the County Court on the grounds set out below:
In the case of an appeal under section 257 of the Act, I am satisfied that the appeal should be brought in the public interest.
6 Form 3C of the Rules, so far as is presently relevant, is in fact in the following form:
TAKE NOTICE that I apply to the County Court on the ground(s) set out below:
The ground(s) of my appeal are: [state the general grounds of the appeal]
*In the case of an appeal under section 257 of the Act, I am satisfied that the appeal should be brought in the public interest.
*In the case of an appeal under section 260 of the Act, the offender was convicted of an indictable offence that was heard and determined summarily by the Magistrates' Court, received a lesser sentence and that person has failed to fulfil an undertaking given to assist law enforcement authorities after sentencing.
The asterisk presumably means that one of these two statements is intended to be struck out in accordance with the provision of the Act under which the appeal is brought.
7 When the appeal first came on for hearing before me, I drew the appellant’s counsel’s attention to the fact that the Notice of Appeal ‘oddly doesn’t include any ground’.[1] Initially, I thought I was missing a page of the Notice of Appeal.[2] However, as the matter proceeded it became clear that there were no grounds of appeal stated in the Notice of Appeal and that this was not an oversight, but a deliberate ‘policy’ of the DPP.[3]
[1]Transcript 2.1
[2]Transcript 2.12–21
[3]Transcript 2.22–5.6, 11.26–30, 13.28–16.9
8 I adjourned the further hearing of the appeal to 29 June 2018, to give the parties an opportunity to file written submissions regarding the validity of the Notice of Appeal and to allow time for the appellant’s counsel to obtain instructions regarding any application he might be instructed to make for leave to amend the Notice of Appeal.
9 I have considered the ‘Appellants Submissions about the Validity of the Notice of Appeal’ dated 26 June 2018 and the ‘Respondent’s Submissions on Appeal’ undated which were filed with the Court by email on 29 June 2018. I have also heard oral argument.
10 At the outset of this hearing, out of an abundance of caution, I vacate the verbal order I pronounced on Monday 25 June 2018 setting aside the orders of the Magistrates’ Court, which I made in the mistaken belief that the page of the Notice of Appeal containing the Grounds of Appeal was missing from the electronic version on the court file. I note that the formal order of the Court, which I signed on 25 June 2018, did not contain this order.
11 I am satisfied that I have jurisdiction to determine whether the Notice of Appeal is in proper form and, if it is not, to entertain any application the Director may make for leave to amend the Notice.
12 Since I am of the opinion that the Director’s Notice of Appeal in this proceeding is defective for failing to ‘state the general grounds of the appeal’ as required by s258(3)(a) of the Criminal Procedure Act 2009 and it further fails to ‘state the general grounds of appeal on which the DPP intends to rely upon the hearing of the appeal’ as required by Order 3.03(1)(b) of the County Court Criminal Procedure Rules 2009, and moreover, since the Notice of Appeal is not in the form prescribed by the rules of the County Court, being Form 3C, as required by s258(3)(b) of the Act and Order 3.03(1)(a) of the Rules, and further, since I have refused the Director’s application to amend the Notice of Appeal in a way which would not remedy the aforesaid defects, I order that the Director’s appeal in matter number AP-18-0643, in which Martyn Nicholls Electric Pty Ltd is the respondent, is permanently stayed as an abuse of the process of this Court.
13 These are my reasons for making that order.
14 Unlike the statutory procedures applicable to an appeal by a person convicted of an offence by the Magistrates’ Court in a criminal proceeding (s 254) (‘an accused person’s appeal’), the Director’s right of appeal has the statutory condition precedent that the Director is satisfied that it is in the public interest that the appeal be brought (s 257(a)).
15 Moreover, unlike the situation with an accused person’s appeal, the Notice of Appeal required by statute to commence a Director’s appeal proceeding, which must be filed in the Magistrates’ Court (s 258(1)), and a copy of which must be served on the respondent (s 258(2)), must ‘state the general grounds of appeal’ and be in the prescribed form (s 258(3)).
16 This distinction did not always exist. Under the Magistrates’ Court Act 1989, an accused person’s Notice of Appeal and the Director’s Notice of Appeal were both required to be ‘in the form prescribed by the rules of the County Court and stating the grounds of appeal’ (see Magistrates’ Court Act s 88 and schedule 6, clause 1(4)).
17 When the Criminal Procedure Act was enacted, the requirement for an accused person’s Notice of Appeal to state the general grounds of appeal was removed, however, the Act retained this requirement in the case of a Director’s appeal.
18 Clearly, therefore, the legislature turned its mind to this requirement and made a conscious decision to retain the requirement, but only in the case of a Director’s appeal. Once commenced, the de novo nature of the appeal hearing, was the same under s 85 of the Magistrates’ Court Act and s 259(1) of the Criminal Procedure Act.
19 In my opinion, this differentiation in the two appeal processes is explicable by reason of the ‘rare and exceptional’ nature of a Director’s appeal, as explained by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke where his Honour said:[4]
[4][1996] 2 VR 520, 522 (citations omitted)
The principles which apply to Crown appeals are well established… These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales…
The relevant rules may be stated in the following propositions:
1. An appeal by the Crown should be brought only in ‘the rare and exceptional case’ to establish some point of principle. The reason is that such appeals ‘represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.
20 This passage has been cited with approval in numerous subsequent decisions.[5]
[5] See eg Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15]; DPP v Karazisis (2010) 31 VR 634,638. See also R v Griffiths (1977) 137 CLR 293, 310; Peel v R (1971) 125 CLR 447, 452
21 I allow that s 259(3) of the CPA provides:
(3) In imposing a sentence under subsection (2), the court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.
22 Nonetheless, in my view, the jurisprudence concerning the ‘rare and exceptional nature’ of a Director’s appeal, explains the legislative requirement that a Director’s appeal can only be brought in circumstances where the Director is satisfied that the appeal should be brought in the public interest and the legislative requirement in s 258(3)(a) that the Notice of Appeal must state the general grounds of appeal.
23 In my opinion, the requirement to state the general grounds of appeal performs at least two functions. First, it acts to expose to some extent the reasons why it is considered to be in public interest to bring the appeal.[6] Secondly, as a matter of procedural fairness, it informs the respondent as to what it is regarding the sentence below that has caused the appeal to be instituted; so the respondent can properly prepare his or her case.
[6] I accept that this decision of the Director is not justiciable. (See Maxwell v The Queen (1996) 184 CLR 501)
24 Accordingly, I am of the opinion that s 258(3)(a) has real work to do and cannot be swept aside or simply ignored. In my opinion there is no warrant for reading down the clear words of the statutory requirement in s 258(3)(a) by reference to a contextual argument based on s 259 of the Act, which has the effect of giving s 258(3)(a) no work to do.
25 I refer to the recent discussion of statutory interpretation by the Court of Appeal in Reardon v Magistrates’ Court of Victoria.[7]
[7] [2018] VSCA 76 at [75]-[83].
[75] The principles of statutory interpretation were not in issue in this proceeding. In interpreting a statutory provision, the High Court has, in recent times, made it clear that primacy must be given to the actual language used in the text of the provision.[8]
[8] Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314, 330 [56] (‘EHL’).
At [81] the Court said:
[81] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[9] Hayne, Heydon, Crennan and Kiefel JJ stated:
[9] (2009) 239 CLR 27 (‘Alcan’).
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[10]
[10] Alcan (2009) 239 CLR 27, 46–7 [47] (citations omitted).
At [83] the Court continued:
[83] In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[11] the High Court, citing Alcan, stated:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[12]
[11] (2012) 250 CLR 503 (‘Consolidated Media’).
[12] Consolidated Media (2012) 250 CLR 503, 519 [39] (citations omitted). See also Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. Statements of this character were endorsed by the High Court in Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22]. In SM v The Queen (2013) 46 VR 464, Weinberg JA analysed a number of then current High Court decisions regarding general principles of interpretation, describing their effect as a ‘reversion to text’ at 477–9 [49]–[57]. See generally DC Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 97–8, and the cases there cited.
26 In my opinion, there is no reason to depart from the clear literal meaning of the statute where there is no ambiguity in its meaning or operation. The Director’s approach to the interpretation of these provisions would render s 258(3)(a) of the Act and rule 3.03(b) of the Rules otiose.
27 Moreover, ss 258 and 259 deal with different stages in the appeal process. Section 258 deals with the requirements of a valid Notice of Appeal, which must be filed and served sometime before the hearing of the appeal. Section 259 deals with how the hearing of the appeal is to be conducted. There is no inconsistency or conflict between these two provisions. They both have work to do and can comfortably sit together.
28 Nor do the provisions of s 259 render s 258(3) nonsensical or mere surplusage. While I accept it is clear law that the de novo nature of the appeal hearing means that the Director does not have to demonstrate error in the sentence the subject of the appeal, nonetheless, the requirement to state in general terms the grounds of appeal performs the two important functions I have previously outlined.
29 I am fortified in my opinion by the legislature history of the provisions going back at least to the Magistrates’ Court Act 1989 s 88 and clause 1(4) of schedule 6 of that Act, and probably much earlier than that.
30 Moreover, Rule 3.03 of the County Court Criminal Procedure Rules 2009 and the form prescribed by that rule (Form 3C), with which the Director’s notice of appeal must conform (see s 258(3)(b) is as follows:
Rule 3.03 Appeals by DPP against sentence or failure to fulfil undertaking
(1) A notice of appeal referred to in section 358 of the Act in respect of an appeal by the DPP under section 257 of the Act –
(a) must be in Form 3C; and
(b) must state the general grounds of appeal on which the DPP intends to rely upon the hearing of the appeal.[13]
[13]County Court Criminal Procedure Rules 2009 (Vic), r 3.03.
Form 3C contains the following:
To the Registrar of the Magistrates' Court:
I, [full name], the DPP wish to appeal
*under section 257 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrates' Court on [name of offender] of [address]
*under section 260 of the Criminal Procedure Act 2009 against a lesser sentence imposed by the Magistrate's Court on [name of offender] of [address]
TAKE NOTICE that I apply to the County Court on the ground(s) set out below:
The ground(s) of my appeal are: [state the general grounds of the appeal]
*In the case of an appeal under section 257 of the Act, I am satisfied that the appeal should be brought in the public interest.
*In the case of an appeal under section 260 of the Act, the offender was convicted of an indictable offence that was heard and determined summarily by the Magistrates' Court, received a lesser sentence and that person has failed to fulfil an undertaking given to assist law enforcement authorities after sentencing.
Date:
31 I note that rule 2.03 and Form 2-2AA under County Court Miscellaneous Rules 1999 was in a similar form and provided as follows:[14]
[14]Emphasis added
FORM 2–2AA
NOTICE OF APPEAL
[under section 84 of the Magistrates' Court Act 1989]
The name of the appellant is: The Director of Public Prosecutions.
The name and address of the respondent is:
1. To the Registrar of the Magistrates' Court at
2. To the Registrar of the County Court at
3. And to the abovenamed respondent
A. The proceeding(s) appealed from—
1. Venue of the Magistrates' Court appealed from:
2. Plea entered in the Magistrates' Court:
3. Date of conviction(s)/order(s):
4. Nature of offence(s)/proceeding(s):
5. Particulars of sentencing order(s):
B. The appeal is to be heard by the County Court *at a.m. [or
p.m.] on 19 , at , *[or at a time and place to
be fixed by the Registrar of the County Court].
C. General ground of appeal
*1. that the Respondent is guilty.
*2. that the punishment is inadequate.
D. 1. Appellant's address for service is:
2. Appellant's reference is:
E. The Appellant requests the Registrar of the County Court to list the
appeal.
Dated:
Signature of Appellant* Delete if inapplicable.
32 I am also fortified in my opinion by the invariable practice over many years of DPP’s and Acting DPP’s stating the general grounds of their appeals in words to the effect of: ‘The grounds of my appeal are: The sentence imposed is manifestly inadequate’.
33 Accordingly, I rule that the Director’s Notice of Appeal in its current form does not comply with the statutory requirements for a valid notice of appeal.
34 So far as the Director’s application to amend the Notice of Appeal by adding after the words ‘TAKE NOTICE that I apply to the County Court on the grounds set out below:’ the words ‘To hear the matter afresh as a de novo appeal and impose an appropriate penalty,’ I am of the opinion that this is not a valid ground of appeal because it simply states the effect of s 259(1) and s 259(2) of the Act. It goes no way towards remedying the defects in the Notice of Appeal as currently drafted which I have identified above. It does not act to expose to any extent the reasons why it is considered to be in public interest to bring the appeal and it goes no way towards informing the respondent as to what it is regarding the sentence below that has caused the appeal to be instituted; so the respondent can properly prepare its case.
0
13
0