Reported Decision: 170 A Crim R 54269 NSWLR 507153 LGERA 173
New South Wales
Court of Criminal Appeal
CITATION: Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 13 September 2007
JUDGMENT DATE:
27 March 2007JUDGMENT OF: Hunt AJA at 1; Barr J at 1; Johnson J at 1 DECISION: 1. Leave to appeal is granted. 2. The appeal is dismissed. CATCHWORDS: Land and Environment Court — Summons in summary prosecution names as the prosecutor one person in the header and another in part of document informing defendant of time and place of hearing — mistake not discovered until after limitation period expired — whether summons a nullity — whether summons may be amended — whether mistake as to name or identity of prosecutor — whether misleading or such as to cause reasonable doubt as to identity of prosecutor — whether test objective or subjective — whether, if subjective, evidentiary onus on defendant to show misled or had reasonable doubt — Criminal Procedure Act 1986, s 16(2) LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Criminal Procedure Amendment (Justices and Local Courts) Act 2001
Director of Public Prosecutions Act 1986
Interpretation Act 1987
Justices Act 1902
Justices Legislation Repeal and Amendment Act 2001
Land and Environment Court Act 1979
Lord Jervis’ Act (Imp)
Native Vegetation Conservation Act 1997
Supreme Court (Summary Jurisdiction) Act 1967
Land and Environment Court Rules
Supreme Court Rules
Uniform Civil Procedure RulesCASES CITED: Application of Pearson (1999) 46 NSWLR 148
Brandsma v Crockett Pty v Heindal Pty Ltd (2002) 26 WAR 323
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Corporate Affairs Commission v Bain (1991) 55 A Crim R 73
Crothers v Sheil (1933) 49 CLR 399
Council of the Municipality of Waverley v Roberts (Hunt J, 31 August 1987 [BC8701181]
Davies v Elsby Bros Ltd [1961] 1 WLR 170
Ex parte Cunliffe (1871) 10 SCR (NSW) 250
Ex parte McAuley; Re Cam (1944) 44 SR 258
Fleming v White [1981] 2 NSWLR 719
Garrett v Freeman [2006] NSWLEC 332
Garrett v Freeman [2006] NSWCCA 278
Hedberg v Woodhall (1913) 15 CLR 531
J Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441
John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508
Kassis v Katsantonis [1984] 3 NSWLR 330
Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212
Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703
McGee v Yeomans [1977] 1 NSWLR 273
Parmeter v Proctor (1949) 66 WN 48
Price v Ferris (1994) 34 NSWLR 704
Re Pritchard [1963] 1 Ch 502
Regina v Aldridge (1993) 67 A Crim R 371
Regina v Clarke (1993) 71 A Crim R 58
Regina v Janceski (2005) 64 NSWLR 10
Regina v Lars (1994) 73 A Crim R 91
Regina v Mai (1992) 26 NSWLR 371
Regina v Youssef (1990) 50 A Crim R 1
Rodriguez v RJ Parker (a male) [1967] 1 QB 111
Sheil v Crothers (1933) 33 SR 229
Smith v Nominal Defendant Court of Appeal, 17 February 1994 [BC9402268], unreported
Thompson v The Queen (1989) 169 CLR 1
Weldon v Neal (1887) 19 QBD 394PARTIES: Epacris Pty Ltd (Appellant)
Director-General, Department of Natural Resources (Resp)FILE NUMBER(S): CCA CCA 2006/1413 COUNSEL: Appellant: JM Ireland QC/JB Maston
Respondent: R Cogswell SC (Crown Advocate) & E CoxSOLICITORS: Appellant: McGirr James Hall & Associates
Respondent: IV Knight, Crown SolicitorLOWER COURT JURISDICTION: Land and Environment Court LOWER COURT FILE NUMBER(S): 50069/2005 LOWER COURT JUDICIAL OFFICER: Lloyd J LOWER COURT DATE OF DECISION: 6 June 2006
CCA 2006/141327 MARCH 2007HUNT AJA
BARR J
JOHNSON JEPACRIS PTY LTD v DIRECTOR-GENERAL, DEPARTMENT OF NATURAL RESOURCESHeadnote
A summons charging the defendant with an offence within the summary jurisdiction of the Land and Environment Court named the Director-General, Department of Planning, as the prosecutor in the header and the Director-General, Department of Natural Resources, as a prosecutor in that part of the document informing the defendant of the time and place for the hearing. The order that the defendant be dealt with according to law for the offence charged, required by s 246 of the Criminal Procedure Act 1986 and served on the defendant with the summons, named the Director-General, Department of Natural Resources, as the prosecutor.
The reference to the Director-General, Department of Planning, in the header of the summons was not discovered until after the limitation period for the prosecution of the offence had expired. An application was made to amend the header of the summons. SCR Pt 75 (Criminal proceedings) applied to the proceedings, which in turn applied SCR Pt 20 (Amendment) to summary proceedings so far as it is applicable to those proceedings.
The judge held that the summons was a nullity, as the “the solicitor for the prosecutor” had no instructions to act for the “the named prosecutor”.
The judge erred in holding that the summons was a nullity, by failing to consider — on a completely objective basis — which Director-General a reasonable person would interpret the document itself and any linked document, and without reference to the subjective intention of the actual person who drafted it, had been intended to be the prosecutor. Both the summons and the s 246 order were prepared in the Crown Solicitor’s Office and were necessarily linked documents. The Department of Natural Resources is the department administering the relevant statute prescribing the offence charged, not the Department of Planning. The Director-General, Department of Natural Resources, was intended by the two linked documents to be the prosecutor. The solicitor for that Director-General had instructions to act for him. There was no formal defect in issuing the proceedings, and the summons was not a nullity.
Re Pritchard [1963] 1 Ch 502 followed.
The judge proceeded to grant leave pursuant to SCR Pt 20 r 4 to amend the summons by naming the Director-General, Department of Natural Resources, in the header, as the prosecutor. SCR Pt 20 r 4(3) provides:
- Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
The judge interpreted this provision as permitting a subjective assessment be made as to whether a mistake made in the summons was not misleading nor such as to cause reasonable doubt as to the identity of the person named as the prosecutor, and as placing an evidentiary onus on the defendant to demonstrate that it had been misled or had a reasonable doubt.
1. The objective nature or quality of the mistake is the primary fact of to be considered. However, for more than forty years judges have treated the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue. It is too late now to insist that the objective test is the correct one. The subjective reaction to the mistake by the respondent to the application to amend plays a very minor role indeed.
Davies v Elsby Bros Ltd [1961] 1 WLR 170; Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703; Rodriguez v RJ Parker (a male) [1967] 1 QB 111; Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212; Brandsma Crockett v Heindal Pty Ltd (2002) 26 WAR 323 discussed.
2. There is no evidentiary onus on the defendant to point to or to produce evidence that he was in fact misled or in fact had a reasonable doubt. The judge therefore erred in the exercise of his discretion to grant the amendment, and the error required this Court to exercise its own discretion as to whether the amendment should be allowed.
3. The naming of the Director-General, Department of Planning, in the header of the summons as the prosecutor was a mistake and the mistake was as to the name of the prosecutor and not as to the identity of the prosecutor. The reasonable recipient of the summons, together with its necessarily linked document (the order pursuant to s 246 of the Criminal Procedure Act), is presumed to have read the whole of both documents. Such recipient would immediately realise that it could not have been intended to have named two different persons as the prosecutor in different parts of the summons, and would therefore ask him or herself which person was intended by the author of the document to be the prosecutor. The answer to any such inquiry is necessarily found in the linked document, which definitively identifies the Director-General, Department of Natural Resources, as the prosecutor rather than the Director-General, Department of Planning. The requirements of SCR Pt 20 r 4(3) were therefore fulfilled.
The Director-General, Department of Natural Resources, sought to rely in the alternative on s 16(2) of the Criminal Procedure Act, which provides:
- No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of such proceedings, on the grounds of:
(a) in the alleged defect in it in substance or inform, or
(b) any variance between it and the evidence adduced at proceedings for the offence charged in the indictment or warrant.
The defendant submitted that s 16(2) is restricted to proceedings in a Local Court, and in any event does not apply to proceedings in the Land and Environment Court.
Held (obiter):
The clear legislative intention was that s 16(2) applied to proceedings in all courts to which it is capable of applying. It is applicable to the Land and Environment Court.
The historical origins of s 16(2) discussed.
Fleming v White [1981] 2 NSWLR 719 followed.
JM Ireland QC & JB Maston (instructed by McGirr James Hall & Associates) for the appellant.
R Cogswell SC (Crown Advocate) & E Cox (instructed by IV Knight, Crown Solicitor) for the respondent.
CCA 2006/141327 MARCH 2007HUNT AJA
BARR J
JOHNSON JEPACRIS PTY LTD v DIRECTOR-GENERAL, DEPARTMENT OF NATURAL RESOURCESJudgment
1 THE COURT: Epacris Pty Limited is the defendant in a current prosecution in the Land and Environment Court alleging that, between 1 July and 10 December 2003, it cleared native vegetation in contravention of s 31 of the Native Vegetation Conservation Act 1997. That statute (which, although now repealed, was applicable at the time the offence was alleged to have been committed) provided that proceedings for an offence under it may be dealt with by the Land and Environment Court. In accordance with s 21(i) of the Land and Environment Court Act 1979, such proceedings fell within Class 5 of that Court’s jurisdiction (Environmental planning and protection summary enforcement).
2 Section 64 of the Native Vegetation Conservation Act provided that proceedings for an offence under that statute may be commenced within, but not later than, two years after the date on which the offence is alleged to have been committed or after the alleged offence first came to the attention of (or became apparent to) an authorised officer. It is common ground in this matter that the limitation period for the prosecution of the offence alleged to have been committed expired on 10 December 2005. The summons in this case was issued the previous day, on 9 December 2005.
3 Pursuant to Pt 6 r 2 of the Land and Environment Court Rules, Class 5 proceedings in the Land and Environment Court are governed by the provisions of the Supreme Court Rules, Pt 75 (Criminal Proceedings), Div 2 (Summary Jurisdiction), which are taken to form part of the Land and Environment Court Rules. Although SCR Pt 75 was substantially amended when the Uniform Civil Procedure Rules came into force on 15 August 2005, LECR Pt 6 r 2 provides that the provisions of SCR Pt 75 continue to apply to proceedings in the Land and Environment Court as they were in force immediately before that date.
4 Part 75 r 7 requires summary proceedings to be commenced by summons claiming an order, in compliance with s 246 of the Criminal Procedure Act 1986, that the defendant be dealt with according to law for the commission of the offence charged. Section 246 of that Act also permits an order to be made that the defendant must appear at a time and place specified in the order to answer the offence charged. Such an order was made in the present case by Talbot J ex parte (as s 246(3) permits) on the same day as the summons was issued. It is accepted by the defendant that both the summons and the order were served on it together.
5 The proceedings in this Court relate principally to the content of the summons which was issued in the Land and Environment Court. The forms to be used in summary criminal proceedings in the Land and Environment Court are those prescribed by SCR Pt 75. (LECR Pt 4 r 1(3) also prescribes the form of the header on documents filed in the Land and Environment Court, but there is no significant difference between the relevant forms prescribed in each Court.) A combination of forms 1, 2 and 74A of the Supreme Court Rules (as adopted by the Land and Environment Court) require a summons to identify on the left hand side of the front page the name of the court, the names of the prosecutor and of the defendant, the nature of the document (here, a summons) and the name and address of the solicitor for the moving party. On the right hand side of the front page, the forms require the prosecutor to state the nature of the claim:
2. An order that the defendant be dealt with according to law for the commission of the above offence.1. An order that the defendant (name and address) appear before a judge of the court to answer to the offence that (state the offence).
The statement of the claim made is to be followed by details of the time and place where the defendant is to appear, the name of the prosecutor (the prescribed form erroneously refers here to the plaintiff), the prosecutor’s address for service and the address of the registry. Finally, the prosecutor’s solicitor is to sign the summons and the date the document is filed is to be inserted.
6 The first page of the summons in the present case was as follows:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESNo 50069 of 2005
DIRECTOR-GENERAL,
__________________________
DEPARTMENT OF PLANNINGProsecutor
EPACRIS PTY LIMITEDDefendant
____________________SUMMONS
(Class 5)Part 5, Criminal Procedure Act
I V KNIGHT
1986
Crown Solicitor
Level 5, 60-70 Elizabeth Street
SYDNEY NSW 2000
DX 19 SYDNEY
Tel: (02) 9224 5169
Fax: (02) 9224 5177Ref: NAR750.4
T6 Rita GiurastanteThe Prosecutor claims:-
1. An order that the Defendant appear before the Court to answer the charge that –
[…]
[The charge is then set out, together with the particulars, continuing on to the second page]
The remaining pages do not have two columns. The second page continued with the orders sought and the signature of Ms Giurastante on behalf the “Solicitor for the Prosecutor” as follows:
- 2. An Order that the Defendant be dealt with according to law for the commission of the above offence.
3. An Order that the Defendant pay the Prosecutor’s costs.
Solicitor I V Knight [signed]4. Such other orders as this Honourable Court deems fit.
IV Knight
- Solicitor for the Prosecutor
Solicitor R Giurastante [signed]
Date: 9 December 2005 [in handwriting]
TIME AND PLACE FOR HEARING THE APPLICATION FOR THE ABOVE ORDERS;-
Place: Land and Environment Court of New South WalesTime: @ 9.30 am 1/2/06 [in handwriting]
- 225 Macquarie Street
SYDNEY
Date:
Prosecutor: Director-General
Department of Natural Resources
Address of Level 4, 224 Macquarie StreetProsecutor’s Crown Solicitor’s Office
address for GPO Box 25
service: Sydney NSW 2001
DX 19 SYDNEY
Registry: Sydney NSW 2000
7 The order made by Talbot J pursuant to s 246 of the Criminal Procedure Act, and served on the defendant with the summons, identifies the Director-General, Department of Natural Resources, as the prosecutor, and Mr Knight (the Crown Solicitor) as his solicitor.
8 It is common ground that the Director-General, Department of Natural Resources, is the person who should have been named as the prosecutor in the header on the left hand side of the front page of the summons — that Department having been gazetted as the department administering the Native Vegetation Conservation Act, replacing the Department of Land and Water Conservation to which reference is made in the statute itself — and not the Director-General, Department of Planning. It is also common ground that the Department of Planning has had nothing to do with this matter.
9 An application was made by notice of motion on behalf of the Director-General, Department of Natural Resources, to amend “the form of the summons […] to reflect the identity of the prosecutor as the Director-General, Department of Natural Resources” in accordance with a draft attached to the affidavit of Ms Giurastante (whose name appears on the summons as the solicitor within the Crown Solicitor’s office handling the prosecution). That draft replaces the name “Director-General, Department of Planning” in the header with “Director-General, Department of Natural Resources”. Both the motion and the supporting affidavit identify that Director-General as the prosecutor in their headers. Ms Giurastante states in her affidavit that:
(1) the Crown Solicitor’s office “has always been instructed to act on behalf of the Director-General, Department of Natural Resources in these proceedings”,
(2) the naming of “Director-General, Department of Planning” as the prosecutor in the heading of the summons had been the result of an error, and
(3) the oversight had not become apparent to her until the matter was listed before Talbot J for mention some time after the return date.
These facts were not disputed.
10 The application by the Director-General, Department of Natural Resources, to amend the summons was heard by Lloyd J. It was made pursuant to two provisions permitting amendments to any documents filed in proceedings before the Land and Environment Court. The first was s 68(2) of the Land and Environment Court Act, which section provides:
Amendments and irregularities
(1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.
(2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:
(3) The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.
(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and
(b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.
11 The second of the provisions on which the applicant relied in the alternative was SCR Pt 20 r 1. The provisions of SCR Pt 20 (which related to amendments), “so far as applicable” to proceedings brought pursuant to SCR Pt 75, continue to apply in the form they were immediately before 15 August 2005 (see par [3] supra). SCR Part 20 r 1 provided:
(1) The Court may at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party may have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
12 Lloyd J dealt first with a submission by the defendant that the proceedings were not validly commenced and were therefore a nullity. He adopted (at [11]) the propositions stated by Upjohn LJ (as he then was) in Re Pritchard [1963] 1 Ch 502 — that a fundamental defect in issuing proceedings made those proceedings a nullity (at 524), and that a court has no power to cure such a nullity (at 520, 523). Dankwerts LJ (at 527) agreed with Lord Upjohn. Lloyd J held (at [16]) that “the solicitor for the prosecutor” had no instructions to act for “the named prosecutor” and that this constituted a fundamental defect in the proceedings. It necessarily follows from the judge’s line of reasoning that he considered the summons to be a nullity.
13 The judge said (at [13]) that s 68(2) was of no assistance, as it referred only to a failure to comply with procedural requirements and did not apply where the originating process was a nullity. He expressed the view (at [15]) that the powers of amendment granted by SCR Pt 20 r 1 permitted an amendment to the originating process only where “in its amended form the nature and substance of the proceedings remain the same”. He concluded (at [16]) that, if the matter were left on the basis of the submissions made to him, he would have been inclined to refuse the application to amend as the proceedings were affected by the fundamental defect he had identified.
14 The judge went on the grant leave to file an amended summons “naming the Director-General, Department of Natural Resources, as the prosecutor”. He proceeded in accordance with SCR Pt 20 r 4, to which, although Pt 20 had been raised in argument, neither party had referred. So far as it is here relevant, r 4 was in the following terms:
(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
[…]
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
[…]
(6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim.
(7) This rule does not limit the powers of the Court under rule 1.
(The terms of SCR Pt 20 rr 1 and 4 as they had been in force prior to 15 August 2005 are also substantially adopted in LECR Pt 10 rr 1-2.)
15 Lloyd J (at [29]) interpreted Pt 20 r 4(3) as giving him the discretion to consider whether in this particular case “justice would be served by granting the amendment sought”. He accepted (at [32]–[33]) that:
(1) there had been no intention to commence the proceedings in the name of the Director-General, Department of Planning;
(2) such Director-General was named as prosecutor in the header instead of the Director-General, Department of Natural Resources, by way of a “clerical error” as a result of a “mere oversight”; and
(3) the correct Director-General was identified as the prosecutor in that part of the document which nominated the time and place for the hearing of the summons.
The defendant had expressly (and, on the evidence, realistically) accepted that there had been no intention to bring the proceedings in the name of the Director-General, Department of Planning. The judge pointed out that there was no evidence that the defendant was confused as to the identity of the party prosecuting it. He held (at [34]) that it was in the interests of justice that the amendment be allowed, and he granted leave to make the amendment sought in relation to the name of the prosecutor in the header.
16 Pursuant to s 5F of the Criminal Appeal Act 1912, the defendant has applied to this Court for leave to appeal against the interlocutory order made by Lloyd J. It is convenient to continue to refer to the applicant for leave to appeal as “the defendant”.
17 The defendant has argued a number of submissions:
(1) The Director-General, Department of Natural Resources, had no standing to apply to the Land and Environment Court to amend the summons; the prosecutor in the summons was the Director-General, Department of Planning, who made no such application.
(2) As the Director-General, Department of Planning, had not appeared on the return date of the summons, and the defendant had attended, the judge before whom the summons was returned was obliged by s 249 of the Criminal Procedure Act to discharge the defendant.
(3) As Lloyd J had correctly held that the summons was a nullity, the provisions in the rules permitting it to be amended had no application.
(4) The judge wrongly interpreted the provisions of SCR Pt 20 r 4(3) by holding that —
(5) SCR Pt 20 r 4(3) is applicable to civil proceedings only and has no work to do in relation to a criminal prosecution where an attempt is made to substitute one prosecutor for another in contravention of the time limit imposed by the Native Vegetation Conservation Act .
(a) it permitted a subjective assessment to be made as to whether the mistake made in the summons was not misleading nor such as to cause reasonable doubt as to the identity of the person named as the prosecutor;
(b) it permitted the applicant for amendment to succeed unless the mistake had both misled and caused such a reasonable doubt; and
(c) it placed an evidentiary onus on the defendant to demonstrate that it had been misled or had a reasonable doubt.
18 Common to many of the defendant's submissions is the issue as to whether the judge was correct in his interpretation of the summons which led him to the conclusion that the document was a nullity. We commence with a consideration of this issue.
19 The fundamental defect in the proceedings identified by the judge was that “the solicitor for the prosecutor" had no instructions to act for “the named prosecutor”. There is no dispute that the Crown Solicitor had instructions from the Director-General, Department of Natural Resources, to commence the proceedings against the defendant. In order to reach the conclusion that the solicitor had no instructions from the named prosecutor, therefore, the judge must necessarily have interpreted the summons as naming the Director-General, Department of Planning, as the prosecutor, rather than the Director-General, Department of Natural Resources.
20 The summons, however, expressly and separately named each of the two Directors-General as the prosecutor, each in an important but different part of the document — one in the header, and the other where the defendant is being notified of the time and place of the hearing at which it was to appear. That fact necessarily indicates that either one or the other Director-General had been named as the prosecutor in error. For the purpose of determining whether the solicitor had instructions to institute the proceedings for the prosector, it was necessary for the judge to determine which Director-General was “the prosecutor”.
21 That task had to be undertaken on a completely objective basis by considering which Director-General a reasonable person would interpret the document itself and any linked document — and without reference to the subjective intention of the actual person who drafted it — had been intended to be the prosecutor. That first task differed from the second task — which confronted the judge only if the document was held not to be a nullity — to determine whether the amendment sought to be made should be allowed in accordance with Pt 20 r 4. That second task raised quite separate issues in the circumstances of this case: which Director-General was subjectively intended by the solicitor who filed the document to be the prosecutor; and (if the Director-General, Department of Natural Resources, had been subjectively intended to be the prosecutor) whether the mistake made in naming the Director-General, Department of Planning, as the prosecutor in the header of the summons was either misleading or such as to cause reasonable doubt as to the identity of the person intended to be the prosecutor. The ultimate decision on the first task, therefore, does not necessarily foreclose the defendant’s arguments in relation to the second task.
22 The judge gave no reasons for interpreting the summons as naming the Director-General, Department of Planning, as the prosecutor, despite the importance of the strongly disputed issue he was determining. It would appear that he simply assumed that the Director-General named in the header had been intended to be the prosecutor. However, no such assumption could safely be made where the summons expressly and separately names two different persons as the prosecutor in the different places already referred to. In our opinion, the judge erred by failing to consider which of the two “named” prosecutors was intended to be the prosecutor in the way outlined in the previous paragraph. It is thus open for this Court to consider that issue for itself.
23 There were two relevant documents to consider: the summons and the order permitted by the Criminal Procedure Act to be made by a judge that the defendant appear at the specified time and place to answer the offence charged (see par [4] supra). Both documents were prepared in the office of the Crown Solicitor, and they are necessarily linked documents. As already stated, the order names the Director-General, Department of Natural Resources, as the prosecutor, and there is no reference in it to the Director-General, Department of Planning. Both documents relate to the institution of the same prosecution pursuant to the Native Vegetation Conservation Act. The Department of Natural Resources is the department administering that statute, and not the Department of Planning — which has nothing to do with prosecutions under it. (The Director-General, Department of Natural Resources, was also named as the prosecutor in all of the affidavits filed in support of the summons. Those affidavits are required by LECR Pt 6 r 2(2) to accompany the s 246 order, but it is unclear from the material before this Court whether they were in fact filed and served with the summons or subsequently. We have therefore not treated them as linked documents.)
24 We are satisfied that, on the completely objective basis identified in par [21] supra, the Director-General, Department of Natural Resources, was intended by the two linked documents to be the prosecutor. The judge therefore erred in concluding that “the prosecutor” was the Director-General, Department of Planning. It follows that he also erred in holding that the Crown Solicitor had no instructions to act for “the prosecutor”. There was accordingly no fundamental defect in issuing the proceedings, and the summons was not a nullity. The judge erred in holding that it was a nullity.
25 That conclusion on our part enables us to dispose of a number of the defendant’s submissions set out in par [17] supra.
26 Submission (1) on behalf of the defendant — that the Director-General, Department of Natural Resources, had no standing to appear on the return date of the summons and to seek the amendment of the summons — therefore necessarily fails. He and not the Director-General, Department of Planning, was the prosecutor, and he therefore had standing to appear.
27 Submission (2) — that, as the prosecutor had not appeared on the return date, the judge should have discharged the defendant pursuant to s 249 of the Criminal Procedure Act — also necessarily fails. Section 249 requires the court to discharge an accused person who appears at the time, on the date and at the place specified by the order made pursuant to s 246 (see par [4] supra) if the prosecutor does not appear and if the court is satisfied that the prosecutor had been notified of those details. As the prosecutor did appear on the return date, that provision had no part to play in the proceedings, and the defendant was not entitled to be discharged pursuant to it.
28 Submission (3) — that as the summons was a nullity no amendment could be made to it — also necessarily fails because the judge erred in concluding that the summons was a nullity.
29 The judge was correct to disregard the provisions of s 68(2) of the Land and Environment Court Act on which the applicant for amendment had primarily relied. There had been no failure by the applicant to comply with the procedural requirements of the Act or the rules which could be treated as an irregularity and which does not nullify the proceedings. A mistaken description of the prosecutor is not a failure to comply with those procedural requirements. The only way the mistake could be corrected was to amend the mistaken description, pursuant to either s 68(1) or SCR Pt 20.
30 This leads us to consider how the judge dealt with the application to amend pursuant to SCR Pt 20 r 4 — that is, Submission (4). The relevant terms of that rule are set out in par [14] supra, but it is convenient to repeat here the terms of r 4(3):
Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
31 The defendant’s Submission (4) is that (1) the judge wrongly interpreted the rule as (a) permitting him to make a subjective assessment as to whether the defendant had in fact been misled or had in fact a reasonable doubt as to the identity of the prosecutor, and (b) permitting the applicant for amendment to succeed unless the mistake had both misled and caused such a doubt, and that (2) he wrongly placed an evidentiary onus on the defendant to demonstrate that it had been misled.
32 The first part of this submission, that the judge erred in making such a subjective assessment, is based on the following passage in the judgment (at [33]):
[…] it would not appear at any point in the proceedings thus far that the defendant did not have an adequate understanding of the action brought against him and the person who was prosecuting him. […] There is no evidence, however, that the defendant was confused as to the party prosecuting him. According to McGee v Yeomans ([1977] 1 NSWLR 273), the mistake must have been such as to cause reasonable doubt as to the identity of the person intended to be made a party to the action. In all the circumstances of the case I do not believe the defendant held any such doubt as to the true identity of the prosecutor.
There is no doubt that the judge did make such a subjective assessment, and that he did place an evidentiary onus on the defendant as to whether it had been misled.
33 The parties, having conducted an apparently extensive review of the many decisions on SCR Pt 20 r 4(3) and its equivalent elsewhere in Australia and in England, found no decision in which this particular issue has been discussed. Neither have we found such a case. The wording of the rule, that the Court must be satisfied that
the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party,
certainly suggests that the inquiry is directed to the objective nature or quality of the mistake itself, and not to the subjective reaction to that mistake by the other party. The inquiry would be how a reasonable person receiving the document would interpret its intention in the light of the circumstances in which such person received it.
34 The defendant relies on the following statement of Devlin LJ (as he then was) in Davies v Elsby Bros Ltd [1961] 1 WLR 170 at 176:
I think that the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer.
That statement has been referred to with approval in many cases in England and Australia, including J Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441 at 443 (Walsh J sitting as a single justice) and Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 254 (McHugh J, with whom Brennan & Deane JJ agreed). In each case, however, it was cited not for the purpose of determining whether the test is a subjective or an objective one but in order to distinguish between a mistake as to the name of the party and a mistake as to the identity of the party.
35 The Court of Appeal in Davies v Elsby Bros Ltd was concerned with the English rules relating to amendments existing before the new English rules made in 1965 (which were substantially the same as SCR Pt 20 r 4(3)), and at a time when the so-called rule in Weldon v Neal (1887) 19 QBD 394 held sway — that an amendment would not be granted where it prejudiced the defendant’s rights under a statute of limitations or any other limitation period. The previous rules and practice made no reference to the mistake being misleading or causing a reasonable doubt as to the identity of the person intended to be made a party. Lord Devlin’s statement is therefore of no assistance in relation to the specific issue with which we are here presently concerned.
36 Moreover, the Bridge Shipping case was an appeal from Victoria, where the rule permitting amendments requires to the Court’s satisfaction that the respondent —
[…] would not be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
The Victorian rule does not refer to whether the mistake was misleading or would cause a reasonable doubt as to the identity of the person intended to be made a party. The approval given to Lord Devlin’s statement in that case does not therefore assist in relation to the specific issue with which we are here presently concerned. In that case (at 249), Toohey J also quoted Lord Devlin’s statement in order to make the point that its purpose was to reject the argument that the intention of the author was decisive, and that it was in that context that Lord Devlin spoke of the reaction of “a reasonable person receiving the document”. He said (at 249) that the intention of the author of the mistake must be answered by reference to all the circumstances, including that person’s state of knowledge and belief and his or her intentions, judged by reference to the circumstances. We respectfully agree with the view of Toohey J where an amendment is being sought pursuant to Pt 20 r 4.
37 The respondent to the appeal, the Director-General, Department of Natural Resources, relies on the fact that, in many of the cases dealing with SCR Pt 20 r 4(3) and its equivalent elsewhere in Australia and in England, the judges — although not expressly applying their minds to the issue of whether the inquiry is directed to the objective nature or quality of the mistake itself or to the subjective reaction of the other party to that mistake — have made findings based on the subjective reaction of the other party.
38 In Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 (a case dealing with the 1964 English rules), Lord Denning MR (at 719) held that the misnomer was a genuine mistake by the plaintiff’s solicitors and that the defendant “must have realised it as soon as he read the writ and the endorsement”. Russell LJ (at 721) said that the defendant “could not have failed to have seen that [the name] was an error”. Davies LJ agreed with the other two judges. In Rodriguez v RJ Parker (a male) [1967] 1 QB 111 (also a case dealing with the 1964 English rules), Nield J considered that the defendant “knew full well” that he was the person intended to be sued. In Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212, in which the plaintiff sought to amend the name of only the first defendant which had been sued as the carrier, Clarke J (as he then was) concluded (at 217-218):
Accordingly, it seems to me, there has been a mistake in the identity of a party in so far as the carrier, the intended recipient of the action, was wrongly named and I am satisfied that this mistake was not misleading (presumably to the first defendant) and not such, in the light of the pleadings, as to cause reasonable doubt as to the identity of the party intended to be sued.
In Brandsma Crockett Pty v Heindal Pty Ltd (2002) 26 WAR 323, McLure J (with whose conclusion that the amendment should be allowed Murray J agreed) held (at [45]) that at all material times the defendant “understood” that it was the company intended to be sued.
39 SCR Pt 20 r 4 was introduced as part of the new Rules of Court in the Fourth Schedule to the Supreme Court Act 1970 when it commenced, and came into operation on the commencement of that Act in 1972. It had appeared in the same terms in the Fourth Schedule to the draft Act prepared by the Law Reform Commission in its Report LRC 7 (Supreme Court procedure), published in 1969. The side note is “cf RSC (Rev) 1965, O 20 r 5”. Unfortunately, both the Report and its Notes on the Supreme Court Bill are uninformative as to the intended interpretation of this provision.
40 If we had been invited in 1965 — when the progenitor of SCR Pt 20 r 4(3) was first introduced in England — to determine whether the inquiry should be directed to the objective nature or quality of the mistake itself or to the subjective reaction to that mistake by the other party, we would have said that the wording of the rule indicates that correct test is the objective one. But more than forty years since 1965 of judges treating the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue, leads us to conclude that it is too late now to insist that our view is the correct one. We are therefore not satisfied that the judge erred in the present case by making a subjective assessment as to whether the defendant had in fact been misled or had in fact had a reasonable doubt as to the identity of the prosecutor.
41 The objective nature or quality of the mistake made nevertheless remains the primary factor to be considered. That is clear from all of the decisions to which reference has been made. It should also be emphasised that, where the objective nature or quality of the mistake is not such that a reasonable person receiving the document would be misled or have a reasonable doubt as to the identity of the person intended to be made a party, that will ordinarily be the end of the matter. The subjective reaction of the particular recipient to the mistake in such a case (for example, by reason of an unfamiliarity with the English language) cannot prevail so that the amendment sought must be refused. The reaction to the mistake by the respondent to the application to amend plays a very minor role indeed — and ordinarily only in favour of the applicant for amendment.
42 The second part of the defendant’s Submission (4) is that the judge wrongly interpreted Pt 20 r 4(3) as permitting the applicant for amendment to succeed unless the mistake had both misled and caused a reasonable doubt as to the identity of the prosecutor.
43 The defendant asserts that the application to amend had to fail if the mistake had either misled or caused such reasonable doubt as to the identity of the prosecutor; each consequence of the mistake, it is said, is a self-sufficient basis on which the amending power could falter. We agree. It is, however, submitted by the defendant that the judge reached a contrary conclusion because, when he quoted the rule in his judgment, he read it as saying:
[…] the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party […] [The emphasis has been added]
The defendant says that the substitution of “or” for the “nor” which appears in the rule means that the judge interpreted the rule as requiring there to be both consequences to follow before the amendment could fail.
44 The judge did not expressly so interpret the rule. If he did in fact so interpret it, it could not have resulted from that misquotation. The English rule on which SCR Pt 20 r 4(3) is based also uses the word “or” rather than “nor”, as does the rule in each of the other Australian States which adopted the English rule. No one has ever suggested that the different words are significant. We do not accept that there is any significance in the judge’s misquotation of the rule. SCR Pt 20 r 4(3) clearly requires the applicant for amendment — as does the English rule — to satisfy the judge both that the mistake was not misleading and that it was not such as to cause reasonable doubt as to the identity of the person intended to be made a party.
45 The judge expressly held (at [33]) (1) that the defendant did not at any point in the proceedings “not have an adequate understanding of […] the person who was prosecuting him”, and (2) that “there was no evidence […] that the defendant was confused as to the party prosecuting him (sic)”. The first constitutes a finding that the mistake did not cause the defendant to have a reasonable doubt as to the identity of the prosecutor; the second constitutes a finding that the defendant was not misled by the mistake. The judge was therefore satisfied that neither consequence flowed from the mistake made as to the name of the prosecutor in the header of the summons. We are not satisfied that the judge misinterpreted the rule or that the judge wrongly interpreted the rule as permitting the applicant for amendment to succeed unless the mistake had both misled and caused a reasonable doubt as to the identity of the prosecutor.
46 The last part of the defendant’s Submission (4) is that the judge placed an evidentiary onus on the defendant to demonstrate that it had been misled or had a reasonable doubt. This submission was also based on the judge’s statement that “there was no evidence […] that the defendant was confused as to the party prosecuting him (sic)”. In our view, the judge did intend by that statement to give some weight to the fact that the defendant had not produced any evidence that he had been misled or had a reasonable doubt. Before considering whether that amounted to an error, one associated issue must be disposed of.
47 At one stage, the defendant submitted that the prosecutor had to establish the elements of SCR Pt 20 r 4(3) beyond reasonable doubt in order to obtain leave to amend the summons, but this submission was wisely not pursued at the hearing of the appeal. The prosecutor in a prosecution governed by the provisions of SCR Pt 75 still has to establish the guilt of the defendant beyond reasonable doubt. But he or she does not have to establish beyond reasonable doubt the elements of SCR Pt 20 r 4(3) — which are brought into play by SCR Pt 75 — in order to obtain leave to amend the summons on which the prosecution is based. Those issues do not form elements of the offence charged; such procedural matters need to be established according to the ordinary civil standard of proof only: cfThompson v The Queen (1989) 169 CLR 1 at 12-13, 29-30, 39.
48 Can the issue of an evidentiary onus on the defendant nevertheless still arise? A defendant will sometimes bear an evidentiary onus in a criminal trial. For example, in a murder trial, the defendant must point to or produce evidence of such issues as accident, provocation or self-defence before an onus is placed on the Crown to eliminate any reasonable possibility that the defendant’s conduct arose as a result of such matters: Regina v Youssef (1990) 50 A Crim R 1 at 2-4. But, in an application by the prosecutor to amend the summons on which the prosecution is based, there can be no evidentiary onus on the defendant to point to or to produce evidence that he was in fact misled or in fact had a reasonable doubt. The difference is that, in a murder trial, the issues of accident, provocation or self-defence do not arise at all unless there is evidence from which such issues are capable of arising. That is made clear in the authorities discussed in Regina v Youssef. On the other hand, a prosecutor seeking to amend the summons in a SCR Pt 75 prosecution at all times bears the onus of establishing the two negative propositions stated in SCR Pt 20 r 4(3) — that the mistake was not misleading and was not such as to cause a reasonable doubt as to the identity of the prosecutor.
49 The judge therefore erred in giving weight to the fact that the defendant had not produced any evidence that he had not been misled or had a reasonable doubt, and this error in the exercise by the judge of his discretion to grant the amendment sought by the prosecutor requires this Court to exercise its own discretion as to whether the amendment should be allowed.
50 Was the naming of the Director-General, Department of Planning, in the header of the summons a mistake? We are satisfied that it was. The defendant had expressly (and, on the evidence, realistically) accepted that there had been no intention to bring the proceedings in the name of the Director-General, Department of Planning. The judge himself accepted that fact, and that the “office” of that Director-General had been identified in the header of the summons by way of a "clerical error" as a result of a “mere oversight” (see par [15] supra). It was common ground that the Department of Planning had nothing to do with the matter (see par [8] supra).
51 Was the mistake as to the name of the party or as to the identity of the party? The vital nature of the distinction is well illustrated by the decision of the Court of Appeal in Price v Ferris (1994) 34 NSWLR 704, to which we were referred. In that case, the proceedings were commenced in the Local Court by Inspector Price charging Constable Ferris with using a firearm in a public place without reasonable excuse or lawful purpose. Prior to the hearing of the summons, the Director of Public Prosecutions gave notice that he had "taken over" of the prosecution pursuant to s 9 of the Director of Public Prosecutions Act 1986. At the hearing of the summons, the magistrate dismissed the proceedings, apparently on the basis that the place where the firearm was discharged was not a public place. He ordered the DPP to pay the defendant's costs. The DPP obtained from the magistrate an extension of time in which to appeal to the Supreme Court by way of a stated case. The magistrate subsequently signed a stated case to the Supreme Court in which Inspector Price rather than the DPP was named as the appellant. On the application of Constable Ferris to strike out the appeal on the basis that Inspector Price had no standing to prosecute it, McInerney J refused an application to amend the appeal by substituting the DPP for Inspector Price as the appellant, and he struck out the appeal to the Supreme Court holding that the DPP and not Inspector Price had been the prosecutor.
52 Inspector Price appealed to the Court of Appeal against that refusal to permit the amendment. Kirby P (at 706-707) described the judge's refusal in this way:
[The judge] did this because he formed the view that the misnomer of the prosecutor was not such a mistake as would permit amendment of the record. The nomination of Inspector Price in the summons had been deliberate. The mistake was not one merely as to the name of a party (which could be cured) but a fundamental mistake (at his Honour found) as to the identity of the person in whom the rights to bring the appeal by stated case were vested. [The emphasis is supplied in the original]
Kirby P (at 709) expressed his own view in this way:
- This was not a mistake as to the name of a party entitled to appeal. It was a mistake as to the identity of the proper appellant. Repeated and recent authority of this Court makes it clear that the rules of court do not allowed substitution and correction of the record in such cases: see Smith v The Nominal Defendant (Court of Appeal, 17 February 1994 [BC9402268], unreported). Consistently with the holding of the Court in Smith , we could not permit the substitution of the DPP (who would otherwise be out of time for an appeal by stated case to this Court), for Inspector Price. It was confusion in the prosecution's office as to who was the proper appellant, not confusion as to Inspector Price's name that led to the mistaken proceedings in the name of Inspector Price.
Meagher JA (at 714) agreed with Kirby P. Priestley JA (at 713) dissented on the basis that the provisions of s 9 of the Director of Public Prosecutions Act allowing the Director to "take over" the proceedings did not constitute the Director the prosecutor in the place of the original prosecutor, and that Inspector Price had remained on the record as "nominal prosecutor". He did not disagree with the propositions stated by Kirby P at 709 and quoted above.
53 We are satisfied that the mistake in naming the prosecutor as the Director-General, Department of Planning, in the header of the summons may fairly be described as a mistake as to the name of the party, and not as to the identity of the party — in the circumstances that the Director-General, Department of Natural Resources, was intended to be the prosecutor, and was named as such elsewhere in the same document and in the linked document prepared by the same solicitor, the order (required by s 246 of the Criminal Procedure Act) that the defendant be dealt with according to law for the offence charged.
54 The remaining issue is whether the mistake was either misleading or of such a nature as to cause reasonable doubt as to the identity of the person intended to be made a party. We are satisfied that neither consequence flowed from the mistake. The reasonable recipient of the summons, together with its necessarily linked document (the order pursuant to s 246 of the Criminal Procedure Act: see par [23] supra), is presumed to have read the whole of both documents. That person would immediately see that the summons expressly and separately names two different persons as the prosecutor: one person in the header, and the other where the defendant is being notified of the time and place of hearing at which to appear. The reasonable recipient of the summons would immediately realise that it could not have been intended to have done this, and would therefore ask him or herself which person was intended by the author of the document to be the prosecutor. If the summons had been the only document to be considered, that person would have to make an inquiry as to which was intended, and the mistake would in those circumstances therefore have to be regarded as such as to at least cause reasonable doubt as to the identity of the prosecutor. But it was not the only document to be considered. The answer to any such inquiry arising from a reading of the summons is necessarily found in the linked document (the s 246 order), which definitively identifies the Director-General, Department of Natural Resources, as the prosecutor rather than the Director-General, Department of Planning.
55 Subject, therefore, to the resolution of the defendant’s Submission (5) — that SCR Pt 20 r 4(3) is applicable to civil proceedings only and has no work to do in relation to a criminal prosecution where an attempt is made to substitute one prosecutor for another in contravention of the time limit imposed by the Native Vegetation Conservation Act — we would ourselves have granted the amendment sought by the prosecutor. This conclusion would lead to the dismissal of the appeal.
56 We turn finally to Submission (5). Our conclusion (at par [53] supra) that the mistake was as to the name of the party and not as to the identity of the party strips Submission (5) to the single issue: is SCR Pt 20 r 4(3) applicable to civil proceedings only?
57 As stated in par [3] supra, in accordance with LECR Pt 6 r 2, Class 5 proceedings (Environmental planning and protection summary enforcement) in the Land and Environment Court are governed by the provisions of SCR Pt 75 and they are taken to form part of the Land and Environment Court Rules. SCR Pt 75 r 6 (Rules applicable) provides that SCR Pt 20 applies to proceedings within the summary jurisdiction of the Court only “so far as applicable” to those proceedings. The defendant’s argument is that SCR Pt 20 r 4 is not applicable to criminal proceedings because SCR Pt 20 r 4(6) provides:
This rule has effect in relation to a summons as it has in relation to a statement of claim.
The defendant submits that, in its context of referring to a statement of claim (by which civil proceedings may be commenced), this subrule refers only to the summons for which SCR Pt 5 (Proceedings by summons) provided as an alternative means of commencing civil proceedings, and therefore that SCR Pt 20 r 4 is not applicable to SCR Pt 75 proceedings.
58 We do not accept that conclusion. SCR Pt 20 as a whole was directed to civil proceedings, as are most of the Supreme Court Rules. SCR Pt 20 r 4(6) was intended to apply to both types of originating civil process permitted by those Rules. SCR Pt 75, however, is expressly directed to all criminal proceedings in the Supreme Court pursuant to the Criminal Procedure Act, Chapter 4, Part 5 (Summary jurisdiction of the Supreme Court and other higher courts). There is a need for rules governing amendments to the originating process in all criminal proceedings; there is a considerable body of law which permits a prosecutor to amend an indictment in certain circumstances, and the position is no different in relation to amending a summons in summary proceedings. It is clear that, notwithstanding the reference in SCR Pt 20 r 4(6) to the manner in which civil proceedings are commenced, the adoption by SCR Pt 75 of SCR Pt 20 was a convenient way of regulating the manner in which amendments can be made to the originating process in all summary prosecutions in the higher courts. Such proceedings are required by Pt 75 r 7 to be commenced by summons. The clear intention is for SCR Pt 20 to apply to applications to amend such a summons — not because SCR Pt 20 r 4(6) refers to a summons — but because the power to amend and the rules governing the exercise of that power was intended by SCR Pt 75 to apply to all originating process in summary prosecutions, in accordance with SCR Pt 20 so far as it is applicable. No explanation has been suggested as to why SCR Pt 20 r 4 should be excluded from the operation of those rules in the Land and Environment Court. We are satisfied that SCR Pt 20 r 4 is applicable to an application to amend a summons in a summary prosecution in that Court.
59 We will accordingly make orders granting leave to appeal but dismissing the appeal. However, before doing so, we must deal with an issue which arose during the hearing of the appeal and in relation to which both parties have made extensive submissions. This issue was raised by the defendant only shortly before the hearing of the appeal. It concerns the width of the application of s 16(2) of the Criminal Procedure Act, which provides:
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.(a) any alleged defect in it in substance or in form, or
60 Lloyd J placed no reliance on s 16(2) when determining the application to amend in the present case, although he did so in a subsequent decision concerning SCR Pt 20 r 4 (Garrett v Freeman [2006] NSWLEC 332), in which he held (at [16]) that, on the basis of s 16(2), a defect in relation to the name of the prosecutor was not fatal and could be cured in those proceedings. On appeal to this Court from that decision of Lloyd J, both parties conceded that s 16(2) did apply in the Land and Environment Court: Garrett v Freeman [2006] NSWCCA 278 at [34]. On the basis of that concession, this Court agreed (at [9], [118]) that the particular defect in the summons in that case was of a type that could be cured by s 16(2).
61 When s 16(2) was raised by the defendant, the respondent to the appeal in the present appeal — the Director-General, Department of Natural Resources — stated that he wished to rely on the provisions of s 16(2) in the alternative should the appeal otherwise be allowed. The defendant has submitted that s 16(2) does not apply to proceedings in the Land and Environment Court. In view of our decision to dismiss the appeal on other grounds, it is strictly unnecessary for us to determine that issue. However, in view of the general importance of the issue, and the fact that this Court recently determined the appeal in Garrett v Freeman on the basis of s 16(2) (albeit on the basis of a joint concession as to its applicability in the Land and Environment Court), we believe that it is appropriate to express our own views on the issue. Both parties filed written submissions following the hearing of the appeal after an opportunity to research the issue fully.
62 The defendant submitted that s 16(2) was either restricted in its application to proceedings in the Local Court, or in any event does not apply in the Land and Environment Court. It says that there is no express reference to such application in either the Land and Environment Court Act or in s 170 of the Criminal Procedure Act. The absence of any reference to s 16 in s 170 is explained by the fact that s 170 is concerned with the application of ss 171-257, the sections of the Criminal Procedure Act which fall within Chapter 4 (Summary procedure), whereas s 16 is to found in Chapter 2 (General provisions), Part 2 (Indictments and other matters). The issue here is whether a summary prosecution in the Land and Environment Court falls within the terms of s 16(2) — “any indictment by which criminal proceedings […] for any other offence that is to be dealt with summarily are commenced”, where s 15(2) defines “indictment” as including any “process or document by which criminal proceedings are commenced”, and s 15(1) makes s 16(2) applicable “to the extent that it is capable of being applied” to “all offences” and “in whatever court dealt with”. These sections are more fully quoted later in this judgment.
63 Section 16(2) is not well drafted, even with the assistance of s 15. The structure of the subsection itself does not appear to support the defendant’s first interpretation, that it is applicable only in the Local Court. In order to give any such support, it would have to read:
No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) or for any other offence that is to be dealt with summarily in the Local Court are commenced […].
The current placement of the phrase “or any other offence that is to be dealt with summarily” in s 16(2) appears to suggest that the criminal offences for other offences were intended to refer to such proceedings in any court. But it is unnecessary to dispose of the defendant’s argument on this basis.
64 An examination of the issue must commence with the historical origin of s 16(2) and its associated provisions in the Criminal Procedure Act, which establishes, in our view, that the clear legislative intention was that s 16(2) was intended to apply to all courts so far as it can be applied to those courts.
65 The present structure and content of the Criminal Procedure Act flows from amendments made by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 which commenced on 7 July 2003. That Act formed part of the legislative package which repealed the Justices Act 1902 and the Supreme Court (Summary Jurisdiction) Act 1967 and which further consolidated a range of criminal procedural provisions into the Criminal Procedure Act. This process of legislative consolidation had been undertaken from time to time since the enactment of the Criminal Procedure Act. Some aspects of the history of this statute were considered by this Court in Regina v Janceski (2005) 64 NSWLR 10 at [233] et seq.
66 There are five sections within the Criminal Procedure Act, Chapter 2 (General provisions), to which reference will be made. Sections 15, 16, 20 and 21 fall within Part 2 (Indictments and other matters), and s 40 falls within Part 3 (Criminal proceedings generally) of Chapter 2.
67 Section 15 provides:
Application of Part
(1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.
- (2) In this Part:
- indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.”
68 That provision was previously found in s 57 of the Criminal Procedure Act, as amended in 1999. Before then, its work was done by s 3 of the Crimes Act 1900 which provided:
The sections mentioned in the Second Schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried.Application of certain Parts of Act
Relevantly, included in the Second Schedule of that Act as “parts and sections in force, so far as their provisions are applicable, with respect to all offences and courts” were the provisions concerning indictments then contained in Part 11 (Procedure, evidence, verdict, etc) of the Crimes Act (ss 359-393). At that time, s 4(1) of the Crimes Act defined “indictment” as including “any information presented or filed as provided by law for the prosecution of offences”.
69 A wide construction was given by this Court to the words quoted from s 3 in Fleming v White [1981] 2 NSWLR 719, at 721-725. Street CJ (with whom Hope JA & Nagle CJ at CL agreed) said (at 722):
The only limitation upon the operation of s 3 is that the sections shall be in force “so far as their provisions can be applied”. It will be noted that this phrase is absolute: there is no modification of the predicate such as would permit contextual appraisal of the suitability of the application of a given section in a particular court.
The Chief Justice also referred later (at 725) to “the unequivocal imperative of s 3”. See also two single judge decisions: Kassis v Katsantonis [1984] 3 NSWLR 330 at 335-337; Application of Pearson (1999) 46 NSWLR 148 at [37]–[38].
70 Section 16 of the Criminal Procedure Act provides:
(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:Certain defects do not affect indictment
(a) for the improper insertion or omission of the words ‘as appears by the record’, ‘with force and arms’, ‘against the peace’, ‘against the form of the statute’ or ‘feloniously’,
(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,
(c) for want of a proper or perfect venue or a proper or formal conclusion,
(d) for want of any additional accused person or for any imperfection relating to any additional accused person,
(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,
(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,
(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
(i) if the indictment was signed by a legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.(h) or stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
Section 16(2) has already been quoted in par [59] supra.
71 Prior to the commencement of s 16 on 7 July 2003, the provisions of s 16(1) were to be found in s 58 of the Criminal Procedure Act. Section 58 was inserted in that Act in 1999. In substance, it re-enacted s 360 of the Crimes Act, the object of which has been described as intended to “remove the excessive technicality which had been applied to indictments”: Regina v Mai (1992) 26 NSWLR 371 at 379. Section 16(2) had its origin in ss 30(1) and 65(1) of the repealed Justices Act and s 6 of the Supreme Court (Summary Jurisdiction) Act. They were all derived from an imperial act generally known as Lord Jervis’ Act. The operation of s 6 was considered in John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 at 521-522. We return to these statutory provisions later.
72 Sections 20-21 of the Criminal Procedure Act provide:
(1) An indictment may not be amended after it is presented, except by the prosecutor:20 Amendment of indictment
(b) with the consent of the accused.(a) with the leave of the court, or
(2) This section does not affect the powers of the court under section 21.(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
21 Orders for amendment of indictment, separate trial and postponement of trial
(2) If of the opinion:(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
the court may order a separate trial of any count or counts of the indictment.(3) If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.
(5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:(4) An order under this section may be made either before trial or at any stage during the trial.
(a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:
(i) on the count or counts in respect of which the trial is postponed, or
(ii) on the indictment,as the case may be,
(c) subject to the Bail Act 1978, the court may commit the accused person to a correctional centre.(b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,
(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.
73 Prior to the commencement of ss 20 and 21 on 7 July 2003, the provisions contained in those sections were to be found in ss 63A and 64 of the Criminal Procedure Act, where they had been inserted in 1999. Before that time, ss 365-368 of the Crimes Act provided for the amendment of indictments and associated issues. Section 365 had been given a liberal interpretation in relation to indictments in the Supreme and District Courts as a result of its amendment in 1929, in cases such as Regina v Aldridge (1993) 67 A Crim R 371 at 377-8; Regina v Clarke (1993) 71 A Crim R 58 at 63; and Regina v Lars (1994) 73 A Crim R 91 at 145. The current s 21(1) of the Criminal Procedure Act effectively provides for amendment in circumstances in which an amendment would previously have been allowed pursuant to s 365(1) of the Crimes Act.
74 Section 40 of the Criminal Procedure Act provides:
Adjournments generally
(1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.
(2) An adjournment may be in such terms as the court thinks fit.
(4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.(3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.
75 Subsections (1) and (4) of s 40 are similar to provisions previously contained in ss 30(2) and 65(3) of the Justices Act. A note appears at the foot of the text to s 16 of the Criminal Procedure Act giving a cross-reference to s 40. The note is an explanatory note and is not part of the Act: s 3(2) Criminal Procedure Act. Nevertheless, it does constitute an aid to interpretation: Interpretation Act 1987, s 35(5). The purpose of ss 16(2), 40(1) and 40(4) is to overcome formal and technical objections being taken to the statement of the charge or the evidence called to support the charge, so that the matter may be determined on its merits, even if it is necessary to grant an adjournment to an accused person to overcome any unfairness — just as was the purpose of their predecessors, ss 30 and 65 of the Justices Act: Ex parte McAuley; Re Cam (1944) 44 SR 258 at 259 (which in turn referred to Hedberg v Woodhall (1913) 15 CLR 531 at 534-535); Parmeter v Proctor (1949) 66 WN 48 at 49-50.
76 It had been suggested that s 65 of the Justices Act did not give a magistrate power to amend an information, but merely allowed the magistrate to disregard a defect or variance: Ex parte Cunliffe (1871) 10 SCR (NSW) 250; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 516. However, Cunliffe was not followed in Sheil v Crothers (1933) 33 SR 229 at 233, 240, a decision apparently affirmed (in this respect) in Crothers v Sheil (1933) 49 CLR 399 at 407. It has been held that amendment may and ought be made “for the sake of good order” where there is a defect or variance capable of being disregarded under a statutory provision such as ss 65 and 127 of the Justices Act: Corporate Affairs Commission v Bain (1991) 55 A Crim R 73 at 78; Garrett v Freeman (CCA) at [141]. Where s 65 has been applied, it was considered appropriate for the magistrate to amend the information so that it was correctly particularised and so that the terms of any conviction reflected the offence for which the defendant, after a hearing, had been convicted: Council of the Municipality of Waverley v Roberts (Hunt J, 31 August 1987 [BC8701181], at 15). The identification of the correctly particularised offence for which a person had been convicted is also important for another purpose. The face of the indictment ought to identify the correct offence so that it may be seen whether a plea of autrefois acquit or autrefois convict is available in the event of later proceedings — as one of the functions performed by the initiating process is to determine the availability of such pleas: Regina v Janceski at [52(iv)].
77 Section 170 Criminal Procedure Act, which lies within Chapter 4 (Summary procedure), provides:
Application
(2) Parts 2–4 apply to the following proceedings:(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.
(3) Part 5 applies to the following proceedings:
(a) proceedings before a Local Court,
(b) proceedings before a Licensing Court,
(c) proceedings before an Industrial Magistrate,
(e) any other proceedings prescribed by the regulations.(d) proceedings before a Warden’s Court,
(a) proceedings before the Supreme Court,
(b) proceedings before the Industrial Relations Commission in Court Session,
(c) proceedings before the Land and Environment Court,
(e) any other proceedings prescribed by the regulations.(d) proceedings before the Court of Coal Mines Regulation,
78 Prior to its repeal on 7 July 2003, s 43 of the Land and Environment Court Act was in the following terms:
No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.Defects and variances in process
79 Section 43 was repealed on 7 July 2003 by the Justices Legislation Repeal and Amendment Act 2001, a cognate Act to the Criminal Procedure Amendment (Justices and Local Courts) Act. Prior to 7 July 2003, ss 41 and 42 of the Land and Environment Court Act related to orders for appearance or apprehension of defendants in summary proceedings in the court and powers of a judge where a defendant was apprehended pursuant to an order made under s 41. The new s 41, as substituted on the same date, now provides:
Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the court’s jurisdiction.Application of Criminal Procedure Act 1986
Part 5 of Chapter 4 deals generally with the summary jurisdiction of the Supreme Court and other higher courts.
80 Accordingly, a range of specific provisions which provided that no objection was to be taken to defects and variances in the originating process — the Lord Jervis’ Act provisions contained in sections such as ss 30 and 65 of the Justices Act, s 6 of the Supreme Court (Summary Jurisdiction) Act and s 43 of the Land and Environment Court Act — were all repealed on 7 July 2003, with no specific comparable provisions replacing them in those Acts. Instead, and on the same day, s 16(2) was included in a range of general provisions inserted in Part 2 of Chapter 2 of the Criminal Procedure Act (ss 15-27) which were intended to apply to all criminal offences in all courts to the extent that those provisions are capable of being applied: Criminal Procedure Act, s 15(1). A wide definition of “indictment” was also included in s 15(2) of the Criminal Procedure Act.
81 In our opinion, the appropriate conclusion to be drawn from the various deletions and insertions on 7 July 2003 is that s 16(2) of the Criminal Procedure Act was intended to fulfil the function of the deleted provisions in those Acts permitting defects and variances in the originating process to be disregarded.
82 In addition to s 16(2), and at the same time, the legislature included s 21 in the Criminal Procedure Act (see pars [72]–[73] supra), which provides for amendments to be made to an indictment. As noted (see par [73] supra), this provision had been contained earlier in s 365 of the Crimes Act. Section 365 was not applied to summary criminal proceedings. However, with the relocation of the provision to s 21 of the Criminal Procedure Act and the extension of the application of the new group of provisions in that Act to all criminal offences in all courts to the extent that those provisions are capable of being applied (see par [80] supra), the amendment power is now available with respect to initiating process falling within the broad definition of “indictment” in s 15(2) Criminal Procedure Act.
83 This historical analysis leads to our conclusion that the concession made by the parties in Garrett v Freeman was correct. Section 16(2), like its statutory predecessors in different Acts, does not provide an express power of amendment in cases where defects and variances exist in relevant originating process. However, it is not necessary to resort to an implied power of amendment, such as that referred to in Sheil v Crothers and Bain. An express amendment power is now to be found in s 21 of the Criminal Procedure Act.
84 These provisions (which allow defects or variances to be disregarded and initiating process to be amended) have now been brought under the single statutory umbrella contained within Part 2 of Chapter 2 of the Criminal Procedure Act. That Part applies, to the extent that it is capable of being applied, to all offences and all courts: s 15(1). The associated power to adjourn the proceedings in case of injustice is found in s 40(1) and (4), being provisions which the Criminal Procedure Act intends to link to s 16, as the note to that section makes clear (see par [75] supra).
85 The defendant has submitted that, even if s 16(2) is capable of applying to proceedings in the Land and Environment Court, the proper interpretation of the scheme of legislation and rules applicable in the present proceedings is that the specific tests for amendment to an initiating process provided by SCR Pt 20 r 4(3) should prevail over the general reach of s 16(2). This submission is, of course, inconsistent with Submission (5) already considered (at [55]–[57]) and rejected (at [58]) — that SCR Pt 20 r 4(3) is applicable to civil proceedings only.
86 There are at least two bases on which this submission should be rejected. First, s 16(2) is a “disregard” provision, and not an amending provision. Secondly, if s 16(2) applies in all courts in which it is capable of application — as we have held that it does — the fact that one or other of those courts has an alternative means of curing the problem cannot make s 16(2) either incapable of being applied or subject to the application of another and different procedure available in that court.
87 The availability of the amendment power also provided by SCR Pt 20 does not operate to exclude other powers available under statute. The provisions contained in Part 5 of Chapter 4 Criminal Procedure Act, the summary jurisdiction provisions, are expressly made applicable by s 43 of `the Land and Environment Court Act. Pursuant to s 15(1), the broad range of procedural provisions contained within Part 2 of Chapter 2 of the Criminal Procedure Act (Indictments and other matters) apply, to the extent that they are capable of being applied, to summary offences dealt with in the Land and Environment Court. The adjournment power in s 40 Criminal Procedure Act is applicable to criminal proceedings generally.
88 The broad words in s 15(1) of the Criminal Procedure Act ought not be construed so as to exclude important statutory provisions such as those contained in ss 16, 21 and 40 Criminal Procedure Act. The purpose of these provisions is, amongst other things, to facilitate a fair trial on the merits without the proceedings being defeated by technical points. Although these provisions are now worded in contemporary language and appear in modern form in the Criminal Procedure Act, the rationale for the provisions remains the same as those identified by Jordan CJ in Ex parte McAuley; re Cam (at 259), by Herron J in Parmeter v Proctor (at 49-50) and by Mahoney JA in Boral Gas (at 515-517): see pars [75]–[76] supra.
89 We make the following orders:
- 1. Leave to appeal is granted.
2. The appeal is dismissed.
27/03/2007 - Headnote correction - Paragraph(s) Headnote
- AGLC
- Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76
- Case
- [2007] NSWCCA 76
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the summons was a nullity due to the discrepancy in the prosecutor's name. Additionally, the court needed to determine if the summons could be amended to correct the error. A further issue was whether the mistake related to the identity or name of the prosecutor could be considered misleading or cause reasonable doubt as to the identity of the prosecutor. The court also needed to decide whether the test for whether a summons is misleading or causes reasonable doubt was objective or subjective, and if subjective, who bore the evidentiary onus of showing that they were misled or had reasonable doubt.
The court held that the summons was not a nullity and could be amended to correct the error. The test for whether a summons is misleading or causes reasonable doubt as to the identity of the prosecutor was found to be subjective. In such cases, the defendant bears the evidentiary onus of showing that they were misled or had reasonable doubt. The court further found that the discrepancy in the summons did not render it misleading or cause reasonable doubt, as the defendant was aware of the identity of the prosecutor through other means. Consequently, the summons was deemed valid and enforceable.
The court ordered that the summons could be amended to correct the error, and the proceedings against Epacris Pty Ltd could proceed as if the summons had been correctly issued.
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