Director of Public Prosecutions v Sinton

[2001] NSWCA 179

Reported Decision: (2001) 33 MVR 549
51 NSWLR 659
124 A Crim R 317

New South Wales

Court of Appeal

CITATION:	Director of Public Prosecutions v Sinton [2001] NSWCA 179
FILE NUMBER(S):	CA 40464/00
HEARING DATE(S):	20 April 2001
JUDGMENT DATE:	15 June 2001
PARTIES :	Director of Public Prosecutions v Malcolm Sinton
JUDGMENT OF:	Stein JA at 1; Giles JA at 60; Hodgson JA at 61

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CL 10491/00
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

COUNSEL:	Appellant - M C Marien Respondent - J W Shaw QC
SOLICITORS:	Appellant - S E O'Connor Respondent - Walter Madden Jenkins
CATCHWORDS:	PROCEDURE - conferral of jurisdiction - indictable offences - related summary offences or 'back-up' charges - Part 10, Criminal Procedure Act 1986 - whether failure to produce certificate at committal deprives the trial court of jurisdiction to determine related summary offences and 'back-up' charges - PROCEDURE - right to a fair trial - exercise of judicial discretion - grant of permanent stay - whether lost opportunity and passage of time constitute a fundamental defect going to root of the trial - STATUTORY INTERPRETATION - object and purpose - construction of language - JURISDICTION - conferral of Local court jurisdiction to trial court - procedure for conferral of jurisdiction - whether handing up of a certificate detailing related summary offences and 'back-up' charges constitutes a procedural pre-condition for conferral of jurisdiction - CRIMINAL LAW - driving in a manner dangerous occasioning death/grievous bodily harm - Crimes Act 1900 - related summary offence of negligent driving - D
LEGISLATION CITED:	Crimes Act 1900 Traffic Act 1909 Criminal Procedure Act 1986 Criminal Procedure Legislation (Amendment) Act 1990 Crimes Legislation Amendment Act 1997
CASES CITED:	Accident Compensation Commission v Murphy (1988) VR 444 Barton v The Queen (1980) 147 CLR 75 Brygel v Stewart-Thornton (1993) 67 A Crim R 243 Jago v District Court of NSW (1989) 168 CLR 23 Project Blue Sky Inc v ABA (1998) 194 CLR 355 R v Carver [1999] NSWCCA 135 (Unreported, Court of Criminal Appeal, 11 June 1999) R v Helmling (Unreported, Court of Criminal Appeal, 11 November 1993) Tasker v Fullwood (1978) 1 NSWLR 20 The Queen v Glennon (1992) 173 CLR 592
DECISION:	1. Leave to appeal granted. 2. Appeal allowed. 3. Respondent to pay the appellant's costs of the appeal but receive a certificate under the Suitor's Fund Act 1951 if otherwise entitled. 4. The orders made by his Honour be set aside and the summons before his Honour be upheld with costs. 5. The order made by Mr Johnson LCM on 13 December 1999 permanently staying the respondent's prosecution for negligent driving be set aside. 6. The information lain against the respondent for negligent driving be remitted to the magistrate to hear and determine according to law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40464/00
CL 10491/00

STEIN JA
GILES JA

HODGSON JA

Friday, 15 June 2001

DIRECTOR OF PUBLIC PROSECUTIONS v Malcolm SINTON

Summary of Facts:

The Respondent was charged with the indictable offences of Dangerous Driving Occasioning Death and Dangerous Driving Occasioning Grievous Bodily Harm. He was also charged with the related summary offence of Negligent Driving. He was acquitted on the indictable offences at trial. The prosecuting authority failed to hand up a certificate detailing the related summary offence at committal, as required under Part 10 of the Criminal Procedure Act 1986. A Magistrate held that the failure to produce such a certificate meant that the respondent lost the opportunity to have the Negligent Driving charge determined at the time of trial and ordered a permanent stay. The respondent appealed to the Supreme Court, where O’Keefe J held that compliance by the prosecuting authority with Part 10 of the Criminal Procedure Act was essential and failure to do so vitiating. He also found that the respondent’s lost opportunity caused a sufficient prejudice to the respondent to justify a permanent stay. This is an application by the Director of Public Prosecutions for leave to appeal and, if granted, an appeal from the decision of O’Keefe J.

Held:

By Stein, Giles and Hodgson JJA agreeing:

1) Part 10 of the Criminal Procedure Act does not constitute a complete code so as to make the requirement of the provision of a certificate detailing related summary or back-up charges at committal absolute and thereby deprive the trial court of jurisdiction.

2) The respondent lost no opportunity to seek to have the trial court hear and determine the related summary offence of Negligent Driving. The respondent himself was not prevented from seeking that the trial court deal with the related charge. In any event, the trial judge retained a discretion not to hear the summary charge and the prosecuting authority’s consent to the determination of such at that time was necessary.

3) The failure of the prosecuting authority to produce a certificate at committal was not a fundamental defect going to the root of the trial so that there was nothing which could be done to relieve the unfair consequences. The circumstances cannot be seen as so unusual or exceptional to justify a permanent stay.

- Barton v The Queen (1980) 147 CLR 75

- Jago v District Court of NSW (1989) 168 CLR 23
- Brygel v Stewart-Thornton (1993) 67 A Crim R 243

Orders:

1) Leave to Appeal granted.

2) Appeal allowed.

3) Respondent to pay the appellant’s costs of the appeal but receive a certificate under the Suitor’s Fund Act 1951 if otherwise entitled.

4) The orders made by his Honour be set aside and the summons before his Honour be upheld with costs.

5) The order made by Mr Johnson LCM on 13 December 1999 permanently staying the respondent’s prosecution for negligent driving be set aside.

6) The information lain against the respondent for negligent driving be remitted to the magistrate to hear and determine according to law.

oOo


IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40464/00
CL 10491/00

STEIN JA
GILES JA

HODGSON JA

Friday, 15 June 2001

DIRECTOR OF PUBLIC PROSECUTIONS v Malcolm SINTON
JUDGMENT

1    STEIN JA:

Introduction

2    This is an application by the Director of Public Prosecutions (the DPP) for leave to appeal, and if granted an appeal, from a judgment of O’Keefe J delivered on 31 May 2000. The decision of his Honour was itself the hearing of a summons appealing from the decision of a magistrate permanently staying the prosecution of the respondent for negligent driving.

Facts

3 The respondent, a serving police officer, was involved in a motor vehicle accident on 5 November 1997 in which a person was killed and another injured. He was subsequently charged with the indictable offences of driving in a manner dangerous occasioning death and driving in a manner dangerous occasioning grievous bodily harm, under ss 52A(1) and 52A(3) respectively of the Crimes Act 1900. The respondent was also charged with the summary offence of negligent driving under s 4(1) of the Traffic Act 1909.

4 At the Local Court on 23 September 1998 the respondent was committed for trial in the District Court on the two indictable offences. In the presence of the respondent and at the time of the committal, in compliance with s 34A(1)(a) of the Criminal Procedure Act 1986 (the Act), the prosecutor informed the magistrate that there was a ‘back-up charge’ (in fact a related offence) of negligent driving laid against the respondent. However, the prosecutor, by way of oversight, did not produce to the magistrate a certificate under s 34A(1)(b) of the Act specifying this charge. There was therefore a lack of compliance by the prosecuting authority with that sub-section of the Act.

5    On 14 October 1998 a Notice of Readiness to Proceed was given by the DPP to the Criminal Listing Directorate under Regulation 9 of the Act. This notice included reference to ‘Related summary charges: Negligent Driving’.

6    In July 1999 the respondent stood trial in the District Court on the two charges of dangerous driving, and on 29 July the jury, at the direction of the trial judge, returned verdicts of not guilty. After the delivery of the verdicts, no application was made by either the Crown or the respondent to have the trial judge deal with the related offence of negligent driving pursuant to s 35(2) of the Act.

7    The negligent driving charge was subsequently listed before the Local Court at Wollongong. The respondent argued that, as the certificate had not been produced to the committing magistrate by the prosecuting authority, the charge of negligent driving was no longer within the jurisdiction of the Local Court. The magistrate rejected this submission. The respondent’s further argument, that the proceeding should be permanently stayed because of the failure of the prosecuting authority to produce such a certificate was, however, accepted by the magistrate. He found that the obligation upon the prosecuting authority to produce the certificate was mandatory, and that the failure to so produce it may have meant that the proceedings were not before the District Court at the time of trial and the respondent therefore lost the opportunity to have the negligent driving charge disposed of at the time of his trial, when all the evidence was before the judge. His Worship found that this lost opportunity may well have been an injustice to the respondent. Accordingly, on 13 December 1999, he ordered a permanent stay.

8    The DPP, by summons in the Supreme Court, appealed from the order of the magistrate and sought orders that the proceedings against the respondent for negligent driving be remitted to the magistrate to be heard and determined. O’Keefe J dismissed the summons on 31 May 2000, finding that compliance by the prosecuting authority with its obligation to produce a certificate to the committing magistrate was essential, and that non-compliance with the Act vitiating. His Honour found that the failure to produce a certificate deprived the trial court of jurisdiction to deal with the related offence under Part 10 of the Act, and further that the magistrate had correctly found that the respondent’s lost opportunity caused a sufficient prejudice to justify a permanent stay.

History and Purpose of Part 10 the Criminal Procedure Act 1986

9 Part 10 was inserted into the Act by the Criminal Procedure Legislation (Amendment) Act 1990. It allows a trial court to deal with a ‘related summary offence’, or back-up offence, at the conclusion of a trial, subject to the consent of the defendant and the prosecution. The provisions of Part 10 clearly demonstrate that it was principally concerned with the conferral of jurisdiction with respect to summary offences upon the Supreme Court and the District Court. It was directed at achieving a more efficient use of court time, and at reducing wastage of time and inconvenience to the parties and witnesses by avoiding the need to later return to the Local Court to have a related summary offence heard and determined.

10    In the second reading speech on 24 October 1990 the Attorney-General set out the purpose of adding Part 10 to the Act. He stated:

[The proposal] will allow a trial court to deal with back-up summary matters at the completion of a trial. At present these summary matters must be determined by the Local Court even where the trial judge has heard evidence which would be relevant to the summary matter. The bill will allow the trial judge, at the conclusion of the trial, to determine or dismiss any related summary offence. The consent of the defendant and the prosecution will be required before a matter can be dealt with in this manner and, should it be inappropriate for the matter to be dealt with in this way, it can be remitted to the Local Court to be disposed of in the usual manner. It is intended that summary matters which are complex or lengthy will not be dealt with in the trial court, but will instead be remitted to the Local Court for determination in the usual way.
I should explain that the present procedure is that where it is patently clear that a summary matter cannot proceed because the necessary ingredients - the head charge - in the particular trial is missing and will be missing in the summary offence, the police must take it back before the Local Court for mention. The matter then either does not proceed or no evidence is offered. This is time consuming for prosecution authorities and, in some cases, for witnesses. In appropriate cases this is a means of resolving the matter. In due course it will become obvious what are appropriate matters to be referred to the Local Court to be dealt with in the usual way. (emphasis added) (Hansard Legislative Assembly 24 October 1990 at p 9160)

11 Part 10 of the Act was amended by the Crimes Legislation Amendment Act 1997, as it appeared that the 1990 provisions were being underutilised. The Minister introducing the Bill attributed the underutilisation of the provisions in part because:

… it is often unclear to the trial court, and to the prosecutor, which summary matters are related to which indictable matters, and in some cases whether or not 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 consequent management and disposal of pending back-up and related summary matters takes up a significant amount of Local Court 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 Legislative Assembly 7 May 1997 at p 8252)

12 The requirements upon the prosecuting authority under s 34A of the Act, to inform the magistrate of any related summary offence, and to produce a certificate to that effect, clearly sought to achieve a greater use by trial courts of the jurisdiction conferred upon them by Part 10 of the Act to determine such offences at the conclusion of the trial. However, it appears that there has been no procedure or requirement introduced which requires or facilitates the transmission of a certificate from the committing Local Court to the trial court.

13    Further amendments to the Act in 1998 inserted new definitions of ‘related offence’ and ‘back-up offence’ into s 34. The purpose was to ensure that the trial court is able to address, not only related summary matters which arise under substantially the same circumstances as are the subject of the trial, but also related indictable matters that are capable of being dealt with summarily, thereby enhancing court efficiency as the need for a separate re-listing in the Local Court is removed. This left the sections most relevant to this case in the following form:

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 provisions 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 commenced, 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 related 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 and the prosecutor have consented to the offence being deal 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.

14    Yet another amendment occurred with the Crime Legislation Amendment (Sentencing) Act 1999 whereby Part 10 was renumbered Part 2 Division 4 of the Act and a new heading ‘Supreme Court and District Court may deal with certain summary offences relating to indictable offences’ inserted. At this time ss 34-37 were renumbered ss 35-39 respectively but were otherwise unchanged. For convenience, I will retain the old numbering of the relevant sections.

15    In the Supreme Court O’Keefe J discussed the amendments to the Act and found that ‘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’. His Honour held that the original 1990 amendments gave the trial court a general discretion as whether or not it would deal with a related summary offence, and as there was no requirement that the trial court address the matters, even with the consent of all parties, trial courts tended not to utilise the jurisdiction. This tendency resulted in further amendments to the Act.

16    It is apparent that the amendments with respect to back-up offences and related summary offences were designed to ensure the efficient administration of justice by conferring jurisdiction to deal with any such summary offences at the time of trial upon the District and Supreme Courts. The procedure to ensure that the trial court is aware of any such related summary offences involves the handing up of a certificate by the prosecuting authority detailing these charges at the time of committal. The question then arises as to whether a failure to so hand up a certificate, for which there is no clearly defined procedure (including its transmission to the court above), is fatal to the ability of the trial court to deal with the summary offence and results in such a prejudice to the respondent that a permanent stay of the summary proceedings is warranted.

The Decisions Below

The Local Court

17    As mentioned earlier, following the respondent’s acquittal in the District Court, the summons for negligent driving was relisted before a magistrate in the Local Court. After hearing argument, Mr Johnson LCM permanently stayed the prosecution of the respondent on the charge of negligent driving. He did not decide whether or not the failure to produce the certificate meant that the trial court had been without jurisdiction to deal with the summary offence. He considered the principles discussed by the High Court regarding the granting of a permanent stay, recognised that such a power was discretionary and to be exercised sparingly and only in exceptional cases, and held that a stay should be granted.

18    The grounds upon which the magistrate exercised his discretion to grant a stay were the lost opportunity of the respondent to have the matter determined in the District Court, and the passage of time. These factors meant, according to his Worship, that the evidence which would have been presented before the Local Court would be unlikely to be the same as that which had been before the District Court. The magistrate noted that memories fade over time and, as a consequence, the re-creation of the situation from which the charges arose would not be as precise as it had been at the time of the trial. As a result of this and also of a different judicial mind being brought to bear on such evidence, a prospect existed of different findings being made in relation to the same set of circumstances. The magistrate held that this constituted a prejudice to the defendant which went to the root of the process of the hearing and determination of the matter, and that there was no means by which this prejudice could be relieved. He was accordingly 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.

The Supreme Court

19    The Director of Public Prosecutions appealed to the Supreme Court from the decision of the magistrate to grant a permanent stay seeking to have his decision set aside and the matter remitted for hearing and determination.

20 O’Keefe J discussed the purpose and effect of the statutory provisions in question and analysed the language used in s 34A of the Criminal Procedure Act with respect to informing the magistrate as to the charges and the production of a certificate as to the related summary charges. His Honour focused on the use of the phrase ‘must’ in s 34A(1)(a), where it is said that ‘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’, as compared to the use of the phrase ‘is to produce’ in s 34A(1)(b) where it is provided that ‘… 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.’ (emphasis added)

21    His Honour examined, as an issue of construction, whether or not the phrase ‘is to produce’ is to be understood in the sense of a command or requirement, such as is the case with ‘must’, or whether it is merely facultative and enabling. O’Keefe J found that where like words or phrases are used within the same or related sections of an Act they will usually be given the same meaning. His Honour held that where a compound verb is used in Part 10 of the Act, it is used in the sense of a command and, therefore, the compound verb ‘is to produce’ should be understood as imposing a requirement.

22    His Honour discussed the benefits conferred by the adoption and later expansion of Part 10 of the Act. He referred to the benefits to the justice system, and noted what he regarded as valuable benefits conferred upon an accused. He stated:

When any [related or back-up] 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.

23    O’Keefe J went on to find that as:

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)…However as Sugerman J pointed out in James v Roland (1958) 75 WN (NSW) 473, where the procession 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’ (at 478).

24    O’Keefe J held that s 34 is part of a ‘legislative continuum’ which is, in effect, a statutory code in which each provision is integral. He was of the opinion that Part 10 provides for and describes an entire process or regime, setting out a series of steps which must be followed so as to ensure a valid end result. Compliance by the Crown with s 34A is therefore regarded as a requirement within this process and, where such does not occur, the accused could suffer a substantial detriment. His Honour stated that ‘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’. (at 21) His Honour purported to apply Tasker v Fullwood (1978) 1 NSWLR 20 and found that compliance with the provisions of Part 10 is essential and non-compliance vitiating.

25    As a result of the failure of the prosecuting authority to hand up a certificate detailing any back-up or related charges at committal, his Honour held that the trial court was deprived of jurisdiction to deal with the negligent driving charge. The magistrate exercised his discretion in favour of the defendant on the grounds of the lost opportunity before the District Court and the passage of time, and this constituted a sufficient prejudice to justify a permanent stay. His Honour did not find any error in the exercise of discretion by the magistrate which constituted a proper basis for interfering, and therefore the permanent stay remained in place.

Arguments On Appeal

26 It was submitted on behalf of the DPP that while s 34A(1) imposes procedural obligations upon the prosecuting authority, it does not create any rights in a defendant. The failure to produce a certificate in no way affected the respondent’s rights at committal or his right to apply to have the related offence of negligent driving dealt with by the trial judge following his trial. As the respondent’s rights and entitlements were not affected by the absence of a certificate, it followed that the decision to grant a permanent stay was in error.

27 The DPP submitted that non-compliance by the prosecuting authority with s 34A(1)(b) of the Act did not deprive the District Court of jurisdiction to deal with a back-up or related offence. It contended that jurisdiction is not dependant upon compliance with s 34A(1) of the Act. Rather it is triggered by an application which is consented to, or by the Court’s own motion, and accordingly summary matters therefore remain in the Local Court unless and until jurisdiction is exercised under the Act. This submission is supported by the wording of s 34A(2), which does not prevent a person being charged with any summary offence after committal, and also by the omission of the legislature to include a requirement for the transmission of any such certificate from the committing Local Court to the trial court. This is said to be especially relevant when the lack of a central registry for Local Courts is considered.

28    It was further argued by the DPP that such a construction of the section is to be preferred as it promotes the purpose of Part 10, which is to facilitate and enhance court efficiency. Mr Marien, on behalf of the appellant, submitted that ‘the primary purpose was to assist the courts, both the trial court and the local court…by giving clarity’. His Honour’s construction would defeat these purposes because, even if the opponent made an application to have the trial judge hear the summary charge, which application was consented to by the Crown and accepted by the trial judge, it follows that as a certificate had not been presented, the trial court would lack jurisdiction. The appellant cited the majority decision in Project Blue Sky Inc v ABA (1998) 194 CLR 355 at 390 - 391 where it was said that the test in determining the validity of an act done in breach of a statutory requirement is:

[T]o 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 NSW. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and the object of the whole statute’.

29    The appellant further submitted that, in the event that this court found that the trial court was deprived of jurisdiction, the continuation of the proceedings in the Local Court did not constitute conduct of such an oppressive nature as to justify the exceptional step of ordering of a permanent stay. The respondent lost only the chance to have the summary charge dealt with by the trial judge, as any such hearing required the consent of the prosecution, and indeed the exercise of the trial judge’s discretion in favour of hearing and determining the matter. This, it argued, did not constitute a ‘fundamental defect which goes to the root of the trial of such a nature that nothing that the trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton v The Queen (1980) 147 CLR 75 at 111, Jago v District Court of NSW (1989) 168 CLR 23 at 34.

30    On the other hand, the respondent submitted that the decision of O’Keefe J was unexceptionable, as the obligation upon prosecuting authorities to produce a certificate, as set out in the Act, is positive and clear. The obligatory nature of the requirement, it was argued, can be drawn from the use of language in the legislation. It was submitted that a breach of the requirement must have real and tangible consequences, otherwise the statutory injunction in the provision would be nominal to the point of being meaningless. This proposition built upon the argument that the requirement to provide the certificate constituted a deliberate procedural step which is a necessary prerequisite for jurisdiction. The purpose of the legislation was submitted by senior counsel as being:

Firstly, to inform in a clear and specified way the committing magistrate as to what backup or related charges were also alleged against the defendant, but secondly to facilitate the passage of those summary proceedings from the Local Court to the District Court.

31    The respondent contended that the legislation constituted a ‘balanced package, which provides… obligations and benefits upon both sides of the criminal proceeding.’

32    In addressing the prejudice found to exist by the magistrate, the respondent raised the issue of the seriousness of the charge involved, asserting that when this was taken into consideration, the prejudice suffered was no mere trifle.

Construction of the Act

33    The object and purpose of the relevant provisions is plain. It is to achieve a more efficient use of court time and to reduce time wastage and inconvenience to parties and witnesses in having to return to the Local Court to have a related summary offence determined. This was made abundantly clear by the second reading speech of the Attorney-General when Part 10 was introduced into the Act in 1990.

34    The objective was to save money, time and inconvenience for the court system and for the parties and witnesses.

35    However, by 1997, it had become apparent that the provisions were being under used. Back-up and related offences were still being dealt with by Local Courts and trial courts were often declining to deal with summary matters.

36 In an effort to rectify the situation the amendments introduced the requirement for the prosecutor to tender, at the time of committal in the Local Court, a certificate dealing with any back-up or related summary offence. The Minister, in the second reading speech, said that this would ‘ensure that clear information is provided to the trial court as to what summary matters exist … .’

37    As I have mentioned, his Honour found that Part 10 provided and described an entire process or regime, setting forth a series of steps which must be followed. Failure of the Crown to follow this procedure could cause an accused to suffer a substantial detriment.

38    However, I am unable to accept that Part 10 provided for a complete code so as to make the requirement of the provision of a certificate to the Local Court at the time of committal absolute and lead to the deprivation of jurisdiction of the trial court.

39    There are a number of reasons why I have reached this view. First, the legislature did not, either by way of direct enactment or by way of reference to regulations, prescribe the form of the certificate or to specify who would be required to certify the accuracy of the information in the certificate. The DPP had to make up its own form of certificate. Secondly, and more importantly, the legislature failed to implement a system which required the Local Court to transmit the certificate to the trial court.

40    Neither the Act or regulation provides any guidance on these matters. Nor have any relevant rules of court been made.

41    If one of the objectives of the legislation is to provide clarity for the trial court and the parties, the lack of specificity in the statute fails fully to achieve this object.

42 His Honour found that the handing up of the certificate on committal was a procedural pre-condition to the exercise of jurisdiction by the Trial Court. I am unable to accept this construction. The prosecuting authorities are not bound by decisions made prior to committal regarding related or back-up summary offences. Under s 34A(2) summary charges can be brought after committal. There is no requirement for any certificate to be communicated to the Local or trial court if this occurs.

43    His Honour’s construction also leads to an obviously unintended consequence. The legislation provides in s 35(2) that a trial judge may deal with a related or back-up summary offence ‘on its own motion’ or on the application of either the accused or the prosecutor, if they both consent. In any event, s 35(3) makes it clear that the trial court still retains a discretion not to hear and determine the related or back-up summary offence.

44    The interpretation favoured by his Honour would mean that, absent a certificate, a trial judge could not deal with a related or back-up summary offence, of his or her motion, or at the request of both parties. For example, it would mean that if an accused, at the conclusion of the trial, asked the judge to deal with a related summary offence with the consent of the prosecutor, the trial court could not do so. His Honour’s construction would therefore defeat the purpose of the Act.

45    Further, and notwithstanding his Honour’s construction, if a related or back-up summary offence was charged after committal, the trial judge would have jurisdiction to deal with it, if seen fit, or if the parties consented to the court hearing and determining the matter. Again, this highlights the inconsistencies that his Honour’s construction may lead to.

46 There was an acknowledged failure on the part of the prosecutor to comply with s 34A(1)(b). The question to be asked is whether this breach results in the invalidity of any subsequent attempt to deal with the summary offence, either by the trial court at the conclusion of the trial, or subsequently by the Local Court. Given the object, scope and purpose of Part 10 of the Act, and the language used in s 34A(1), I cannot see how the failure was fatal to the process or affected the jurisdiction of either of the courts.

47    The better and most convenient construction of the provision, indeed of Part 10 as a whole, is the facilitation of the determination of related summary offences by the courts. It does not aid the clear objectives of the provision to find that a failure to tender a certificate upon committal is fatal to the whole system. Again, as I have said, his Honour’s construction defeats the obvious purpose of the provisions.

48    An accused person would be aware of any related or back-up summary charge, having been served with a summons. In this case, the respondent was in court at the time of committal when the prosecutor orally informed the magistrate of the existence of the summary related charge of negligent driving. He was also legally represented at the time. It is difficult to see what more the respondent would have learned from the handing up of the certificate.

49    Importantly, it seems clear that the respondent was not prevented from seeking that the trial court deal with the summary charge at the conclusion of his trial. His legal representative before the magistrate on 13 December 1999 acknowledged that no application was made to the trial judge and that, in any event, there was a need for the prosecutor to consent. He could have added that the trial judge retained a discretion not to hear the summary charge.

50    There may be many reasons why an accused would not make an application for a related summary offence to be dealt with at the end of a trial. These would often be matters of forensic tactics. We do not know the reason why no application was made to the District Court in this case. It could have been an oversight. It could have been with knowledge of the absence of the certificate, although there is no evidence of this. It could have been the desire to make a submission to the prosecuting authorities not to proceed with the summary offence. Indeed, this is what happened here.

51    It follows from the above that, in my opinion, the respondent lost no opportunity to seek to have the matter dealt with by the trial court, notwithstanding the absence of the certificate. His right to so seek, if it be properly seen as a right, was not curtailed, and was in any event a right subject to the consent of the prosecutor and the discretion of the judge. Further, the respondent has not been shown to have been misled in any way by the absence of the certificate.

52    In my discussion I have deliberately avoided reference to the mandatory/directory classification in determining the effect of non-compliance, applying Tasker v Fullwood as approved by the High Court in Project Blue Sky.

53 Further, I do not see that the issue is affected by his Honour’s construction of ‘is to produce’ in s 34A(1(b) as ‘must’, should that be correct. The same result flows from the construction which I favour.

Permanent Stay

54    On the construction which I favour, there being no loss of opportunity by the respondent to seek to have the negligent driving charge dealt with by the trial judge, the permanent stay imposed by the magistrate must go. It cannot be said that the failure to tender the certificate was a fundamental defect going to the root of the trial so that there was nothing which could be done to relieve the unfair consequences. See Barton v The Queen and Jago v The District Court of New South Wales. The prejudice suffered by the respondent, identified by the magistrate as failing memories and increased cost and delay, is not the type of relevant prejudice assigned by the High Court in Jago. See Mason CJ at 33 - 34.

55    The instant case is quite different from Brygel v Stewart-Thornton (1993) 67 A Crim R 243, relied on by the respondent, where the error in relation to the contents of the hand-up brief to be served on the defendant was seen as one which struck at the very root of the prescribed procedures. It had significance in the overall conduct of the committal. The consequences which flowed from the failure to comply with the requirement of the statute, having regard to its scope and purpose, lead to all that followed being rendered ineffective or null and void. Accident Compensation Commission v Murphy (1988) VR 444 applied.

56    In no way can the circumstances of this case be seen as so unusual or exceptional as to justify a permanent stay. The onus on the respondent to demonstrate that the prejudice he would suffer in the event of the matter proceeding in the Local Court could render that trial unfair, was not discharged. Indeed, far from it. The fact of fading memories, and the further delay and cost, were all possibilities if the prosecutor did not consent or the trial judge declined to hear the summary matter. In my opinion, the discretion inherent in the magistrate’s grant of a permanent stay clearly miscarried.

57    As observed by Bell J in R v Carver [1999] NSWCCA 135 (Unreported, Court of Criminal Appeal, 11 June 1999) circumstances will ordinarily be extreme to justify a permanent stay. See The Queen v Glennon (1992) 173 CLR 592 at 605 and 615 - 616 and Jago at 31, 60 and 76. See also Hunt CJ at CL in R v Helmling (Unreported, Court of Criminal Appeal, 11 November 1993).

58    Accordingly, leave to appeal should be granted and the appeal upheld. The orders made by his Honour should be set aside. The permanent stay ordered by the magistrate should also be set aside and the information lain against the respondent should be remitted to the magistrate to hear and determine according to law.

Orders

59    The orders which I propose are as follows:

1. Leave to appeal granted.

2. Appeal allowed.

3. Respondent to pay the appellant’s costs of the appeal but receive a certificate under the Suitor’s Fund Act 1951 if otherwise entitled.

4. The orders made by his Honour be set aside and the summons before his Honour be upheld with costs.

5. The order made by Mr Johnson LCM on 13 December 1999 permanently staying the respondent’s prosecution for negligent driving be set aside.

6. The information lain against the respondent for negligent driving be remitted to the magistrate to hear and determine according to law.

60    GILES JA: I agree with Stein JA.

61    HODGSON JA: I agree with Stein JA.

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