Hudson v ACT Magistrates Court & Anor
[2014] ACTSC 192
•12 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Hudson v ACT Magistrates Court & Anor |
| Citation: | [2014] ACTSC 192 |
| Hearing Date(s): | 12 June 2014 |
| Decision Date: | 21 August 2014 |
| Before: | Mossop M |
| Decision: | See [80] |
| Category: | Principal Judgment |
Catchwords: | JUDICIAL REVIEW – criminal law – compliance with food standards code – multiple offences – prosecutorial discretion - whether decision of the first defendant to refuse pleas of guilty involved jurisdictional error – whether the first defendant had power to amend a charge in the absence of an objection under s 28 of the Magistrates Court Act 1930 – whether the first defendant had power to stay charges for abuse of process |
| Corporations Act 2001 (Cth) | |
| Legislation Cited: | Food Act 2001 (ACT) ss 27, 30 Food Standards Australia New Zealand Act 1991 (Cth) Legislation Act 2001 (ACT) |
| Kaye v Siddiq [2013] ACTSC 62 at [21] | |
| Cases Cited: | Awada v Linknarf Ltd (in liq) (2002) 55 NSWLR 745 Ayles v The Queen (2008) 232 CLR 410 Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 Maxwell v The Queen (1996) 184 CLR 501 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483 Grassby v The Queen (1989) 168 CLR; [1989] HCA 45 Likiardopoulos v The Queen (2012) 247 CLR 265 Montgomery v Stewart (1967) 116 CLR 220 Martin v Purnell (1999) 93 FCR 181 Meissner v R (1995) 184 CLR 132 NSW Food Authority v Nutricia Australia Pty Limited (2008) 74 NSWLR 148 Nahlous v R (2010) 77 NSWLR 463 Pearce v The Queen (1998) 194 CLR 610 R v Jerome McMahon [1964] Qd R 595 R v Martin (1904) 4 SR (NSW) 720 R v Murphy (1979) 1 A Crim R 398 R v Steurer [2008] ACTSC 141 Walsh v Tattersall (1986) 188 CLR 77 |
| Texts Cited: | Halsbury’s Laws of Australia, [130-13630] |
| Parties: | Lyndell Jane Hudson (Plaintiff) ACT Magistrates Court (First Defendant) Landmark HC Computer ACT Pty Ltd (Second Defendant) The Attorney-General for the Australian Capital Territory (Intervener) |
| Representation: | Counsel: |
| M Jones (Plaintiff) P Garrisson SC and N Hancock (Intervener) | |
| Solicitors: | |
| ACT Director of Public Prosecutions (Plaintiff) ACT Government Solicitor (Intervener) | |
| File Number(s): | SC 93 of 2014 |
| Introduction |
1. In these proceedings the Director of Public Prosecutions seeks orders in the nature of a writ of certiorari to quash three decisions made by a magistrate of the ACT Magistrates Court on 24 January 2014. The three decisions are:
(a) a decision to refuse to accept pleas of guilty to charges that were before the Court, namely those numbered CC2013/43183, 43189 and 43190; (b) a decision to amend the particulars of one charge that was before the Court, namely CC2013/43180; and (c) a decision to permanently stay charges CC2013/43183, 43189 and 43190. 2. The relief is sought on the grounds that each of the decisions involved jurisdictional error and, in addition, that the amendment of the charge involved an error of law on the face of the record.
Background
3. On 20 September 2013 the second defendant (Landmark HC Computer ACT Pty Ltd), trading as “Spicy Ginger Cafe”, was served with 11 documents entitled “Information and Summons”. The summons required the second defendant to attend the Magistrates Court on 23 September 2013. I will refer to the informations contained in the “Information and Summons” as charges. The 11 charges were numbered sequentially CC2013/43180 through to CC2013/43190. For simplicity of reference I will refer to them by the last two digits of their file number, so that the charges become charge numbers 80 through to 90.
4. The summonses alleged contraventions of s 27(1) of the Food Act 2001 (ACT) (Food Act) on 29 November 2011. Section 27(1) provided:
27 Compliance with food standards code
(1) A person must comply with any requirement imposed on the person by the
food standards code in relation to—
(a) the conduct of a food business; or (b) food intended for sale; or (c) food for sale.
Maximum penalty: 500 penalty units.
5. The section therefore made it an offence to contravene a requirement of the Australia New Zealand Food Standards Code (Food Standards Code), as defined in s 4(1) of the Food Standards Australia New Zealand Act 1991 (Cth) (see s 13A of the Food Act), in relation to the conduct of a food business or food intended for sale or food for sale. At the relevant time s 133 of the Legislation Act 2001 (ACT) (Legislation Act) defined a penalty unit for an offence committed by a corporation as an amount of $550. The maximum penalty of 500 penalty units was therefore, in the case of an offence committed by a corporation such as the second defendant, $275,000.
6. Of the 11 summonses:
(a) three alleged contraventions of Standard 3.2.2, clause 6 relating to food storage (charges 80, 81 and 82); (b) five alleged contraventions of Standard 3.2.2, clause 19, relating to cleanliness (charges 83, 84, 85, 86 and 87); (c) one alleged a contravention of Standard 3.2.2, clause 20 relating to cleaning and sanitising of specific equipment (charge 88); (d) one alleged a contravention of Standard 3.2.2, clause 21 relating to maintenance (charge 89); and (e) one alleged a contravention of Standard 3.2.3, clause 14 relating to hand washing facilities (charge 90). 7. On 23 September 2013 the second defendant did not appear to answer the summonses. The matter was adjourned to 14 October 2013. On 14 October 2013 the second defendant appeared and the matter was adjourned to 25 November 2013.
8. Prior to 25 November 2013 the plaintiff and the second defendant reached an agreement that the second defendant would plead guilty to one charge relating to breaches of the standard relating to food storage (particularising contraventions in charges 80, 81 and 82), one charge relating to cleanliness (particularising the contraventions alleged in charges 83, 84, 85, 86, 87 and 88), one charge relating to maintenance (charge 89) and one charge relating to hand washing (charge 90). The remaining charges (81, 82, 84, 85, 86, 87 and 88) would all be withdrawn.
9. On 25 November 2013 the second defendant pleaded guilty before a magistrate to charges 80, 83, 89 and 90 and charges 81, 82, 84, 85, 86, 87 and 88 were withdrawn. An amended statement of facts and a bundle of photographs were also tendered. The matter was listed for sentence on 18 December 2013.
10. On 18 December 2013 the matter came before a different magistrate. The magistrate advised the parties that he considered that the second defendant should only be sentenced in respect of one charge, covering all the contraventions of the Food Standards Code. His Honour proposed to do this by amending one of the charges so as to include all the contraventions of the Food Standards Code that had been contained in all of the charges. His Honour adjourned the proceedings to 24 January 2014 to allow the parties to prepare their respective positions on this approach.
11. On 24 January 2014 his Honour reiterated his opinion that the four charges “should be one charge particularised in a number of breaches of the Food Standard”. His Honour came to this view relying on s 145 of the Legislation Act, which provides that the singular includes the plural, and the decision of the High Court in Montgomery v Stewart (1967) 116 CLR 220. The plaintiff submitted that his Honour’s view of the charges was not correct and that he should sentence the second defendant in respect of the four charges in relation to which it had pleaded guilty. The prosecutor declined to seek any amendment of the charges and submitted that the magistrate should not make any such amendment. The second defendant did not wish to be heard against his Honour proceeding in the manner that he had proposed, namely, combining all charges into one charge.
12. Immediately after hearing argument the magistrate amended charge 80 to read:
That on 29 November 2011 in the Australian Capital Territory Landmark HC Computer ACT Pty Ltd ACN 088 460 584 contravened requirements of the Food Standards Code in the conduct of a food business, namely Spicy Ginger Cafe, namely Standard 3.2.2 clause 6 in relation to food storage; Standard 3.2.2 Clause 19 in relation to cleanliness; Standard 3.2.2 clause 21 in relation to maintenance; and Standard 3.2.3 Clause 14 in relation to hand washing facilities.
13. The amendment was made without the plaintiff’s consent and against the plaintiff’s submissions.
14. The second defendant pleaded guilty to the amended charge.
15. In relation to the remaining charges to which the second defendant had pleaded guilty, being 83, 89 and 90, his Honour permanently stayed each of those charges and then adjourned the sentencing proceedings in respect of the amended charge to 12 March 2014.
16. His Honour’s reasons for taking the course that he did were not expressed in any detail at the conclusion of argument but can readily be identified having regard to the exchanges between his Honour and those appearing before him during the course of submissions.
Appearances
17. Although the second defendant appeared by counsel in the Magistrates Court there was no appearance upon the application for judicial review. It emerged that even prior to the Magistrates Court proceedings the company had been placed in liquidation by its members. The liquidator was aware of the judicial review application and chose not to participate in the proceedings.
18. The plaintiff submitted that notwithstanding the liquidation of the company the application still had utility and if the proceedings were remitted to the Magistrates Court and the sentencing process completed, any question of enforcement of the Court’s sentencing decision was an issue separate to the issues that arose on the application for judicial review. I accept that submission
19. Section 500 of the Corporations Act 2001, which would have the effect of staying civil proceedings against the company unless leave to proceed was granted by the Supreme Court, does not apply to the proceedings because that section only applies where there is a creditors’ voluntary winding up, not a members’ voluntary winding up as in this case: Awada v Linknarf Ltd (in Liq) (2002) 55 NSWLR 745.
20. The Attorney-General for the Australian Capital Territory intervened in the proceedings and made written and oral submissions.
Issues
21. The application gave rise to three issues:
(a) Did the magistrate’s rejection of the pleas of guilty reveal jurisdictional error? (b) Did the magistrate have power to amend an charge in circumstances where there was no “objection” under s 28 of the Magistrates Court Act 1930 (ACT) by either party and no consent by the prosecution to the amendment? (c) Was there power in the circumstances to permanently stay the balance of the charges? 22. Before addressing each of these issues specifically, it is necessary to address the underlying and fundamental issue, namely, the interpretation of s 27(1) of the Food Act.
Section 27(1) of the Food Act 2001
23. In some parts of the transcript it appears that His Honour proceeded in the manner that he did because he considered that there “should” be only one charge and that to lay four charges was, in the circumstances, oppressive so as to amount to an abuse of process. At other stages in the exchanges between the magistrate and the prosecutor his Honour appeared to indicate that he considered it was not open to bring more than one charge under the section because, as a matter of statutory construction, a single charge had to encompass all contraventions of the Food Standards Code. That might lead to a different formulation of the manner in which his Honour considered the proceedings amounted to an abuse of process.
24. At least in relation to this second way in which his Honour approached the matter, whether or not there was an abuse of process depended upon whether or not a breach of s 27, by contravention of the Food Standards Code in a number of different ways, can only give rise to a single offence.
25. His Honour’s approach relied first upon s 145 of the Legislation Act. That section provides:
145 Gender and number
In an Act or statutory instrument—
(a) words indicating a gender include every other gender; and (b) words in the singular number include the plural and words in the plural number include the singular.
26. Thus, having regard to the manner in which his Honour ultimately amended charge 80, his Honour read s 27(1) as if it read “[a] person must comply with any requirement or requirements imposed on the person by the food standards code in relation to ...”. As a consequence, a breach of any number of the requirements set out in the Food Standards Code could only give rise to a single breach of s 27(1).
27. The second matter referred to by the magistrate was the decision of the High Court in Montgomery v Stewart (1967) 116 CLR 220. In that case the appellant had been charged with an offence of authorising the issuing of a prospectus containing an untrue statement. The particulars to the charge listed a number of allegedly untrue statements. The appellant was unsuccessful before the Court of Petty Sessions and sought from the Supreme Court of Victoria both an order to review its decision and a writ of prohibition to restrain the proceedings on the ground that the charge was duplicitous. The proceedings were dismissed by the Full Court of the Supreme Court of Victoria on the basis that the offence was the act of issuing a prospectus of a particular character and thus constituted one offence. The High Court dismissed an application for special leave to appeal, the majority, in substance, agreeing with the Full Court of the Supreme Court of Victoria.
28. The magistrate quoted from the judgement of Menzies J in Montgomery v Stewart at 231 and expressed the view that the substance of the offence of contravening s 27(1)(a) was “conduct of a food business which doesn’t comply with a number of requirements” rather than the failure to comply with the individual requirements. His Honour therefore considered the offence provision to be relevantly similar to the offence considered in Montgomery v Stewart. In reaching that conclusion the magistrate drew on a factor referred to by Menzies J, namely the provision of steep penalties for the offence. His Honour expressed the view that the provision of the significant penalties in s 27 indicated that it could not have been within the legislative intention to charge people with numerous breaches in separate charges and thereby subject them to such large penalties.
29. The third matter on which his Honour placed emphasis was what he described as “the cascading nature of the offence provisions and the penalties that can be imposed”.
30. The plaintiff submitted that the elements of an offence under s 27(1)(a) were as follows:
(a) a person is conducting a food business (a circumstance); (b) the person has a requirement imposed on them by the Food Standards Code in relation to the conduct of that food business (a circumstance); and (c) a person fails to comply with any requirement of the Food Standards Code (conduct). 31. While the provisions of Part 2.2 of Criminal Code 2002 (ACT) did not apply to the offence at the time, the analysis of s 27(1) by reference to elements involving conduct and circumstances is a useful tool in considering the requirements to be proved in order for the offence to be made out.
32. Thus, what the plaintiff submitted contrasted with the offence provision considered in Montgomery which contained the following elements:
(a) the issuing of a prospectus (conduct); and (b) the prospectus containing false statements (a circumstance). 33. It would also contrast with the approach indicated by his Honour which would interpret the provision as if it contained the following elements:
(a)
a requirement imposed on a person by the Food Standards Code in relation to the conduct of a food business (a circumstance); and
(b)
the conduct by a person of a food business which contravened one or more requirements of the Food Standards Code (conduct).
34. When comparing the two alternative analyses of the elements of the offence under s 27(1) the issue becomes whether or not the conduct of a food business is a circumstance or a conduct element.
35. The question resolves itself to one of statutory interpretation. If the provision is interpreted in the manner suggested by his Honour so as to create a single offence in relation to all breaches of any of the provisions of the Food Standards Code, then it would not be open to charge more than one offence arising out of the conduct of a food business at a particular time. However, unless the Act creates such a single offence, then it is open to the prosecutor to choose how the charge is to be framed and to bring separate charges in relation to individual contraventions of the requirements of the Food Standards Code.
Text and structure of s 27(1)
36. In my view, the text and structure of s 27(1) is consistent with the elements of the offence being as contended for by the plaintiff. The opening words of s 27(1) make it clear that compliance with any requirement imposed by the Food Standards Code is the conduct element of the offence. The connector “in relation to” describes circumstances which must exist for the conduct to be an offence, namely, that the requirements imposed by the Code must be in relation to one of the things in paragraphs 27(1)(a), (b) or (c). I do not consider it to be consistent with the structure of the section to read it as though the matters in (a), (b) and (c) identify conduct rather than qualifying the type of requirement in the Code which can give rise to an offence. That is demonstrated by trying to fit into the elements identified at [33] above conduct covered by paragraphs 27(1)(b) and (c). For example, it is only possible to construct the second element (see [33](b) above) of an offence against s 27(1)(c) if one amends the words “food for sale” to “the sale of food”.
37. The structure of the provision is to be contrasted with that which follows in s 27(2), which provides “[a] person must not sell food that does not comply with a requirement of the food standards code that relates to the food”. In that subsection, in contrast with s 27(1), it is clear that the conduct element is the sale of food.
Purpose of s 27
38. In working out the meaning of the Act it is open to have regard to the terms of the Explanatory Memorandum which accompanied the Food Bill 2001 (Food Bill): Legislation Act 2001, s 142, Table 142 item 4. The Explanatory Memorandum for the Food Bill explained that to promote greater national uniformity of food standards in Australia, States and Territories agreed to adopt the Food Standards Code in 1991. In 2000 the Australian New Zealand Food Authority finalised development of national uniform food safety standards which were incorporated into the Food Standards Code in February 2001. There was an Inter-Governmental Food Regulation Agreement (FRA) signed by the Council of Australian Governments on 3 November 2000. The FRA ensured the continued adoption of the Food Standards Code but also committed jurisdictions, including the ACT, to the adoption of Model Food Provisions and a new system for national food regulation. The Food Bill was based on the Model Food Provisions.
39. In relation to what became s 27 of the Food Act the Explanatory Memorandum to the Food Bill provided:
Clause 27 creates an offence for a person who does not comply with the Food Standards
Code in relation to the conduct of a food business, food intended for sale or food for sale.An additional offence is created for a person who does not comply with any relevant requirements of the Food Standards Code in relation to the packaging, labelling, sale or advertisement of food.
Examples of offences under this clause would be for a person to:
• add a food additive to a food that has not been approved for use under the Food Standards Code;
• sell genetically modified food without labelling that food in accordance with the applicable standard contained within the Food Standards Code;
• fail to wash their hands after using the toilet, as required by the Food Standards Code; • to operate out of a premises that could not be effectively cleaned, as required by the Food Standards Code.
The maximum penalty for an offence under this clause is 500 penalty units for an individual or 2500 penalty units for a corporation.
40. The operation of the Food Standards Code and a provision equivalent to s 27(1) was considered in NSW Food Authority v Nutricia Australia Pty Limited (2008) 74 NSWLR 148.
41. The Food Standards Code is a substantial instrument. It comprises four chapters:
(a) Chapter 1: General Food Standards; (b) Chapter 2: Food Product Standards; (c) Chapter 3: Food Safety Standards; and (d) Chapter 4: Primary Production Standards. 42. The details covered by the Code are extensive. Chapter 1 contains standards relating to the labelling, substances added to food, contaminants and residue, pre-market clearance and microbiological and processing requirements. Chapter 2 contains standards relating to particular categories of food including cereals, meat, eggs, fish, fruit and vegetables, edible oils, dairy products, non-alcoholic beverages, alcoholic beverages, sugars and honey and special purpose foods such as infant formula, meal replacement foods and supplementary sports foods. Chapter 3, which contains the standard relied on in the present case, 3.2.2, “Food Safety Practices and General Requirements”, also contains standards relating to “Food Safety Programs” and “Food Premises and Equipment” as well as a particular standard entitled “Food Safety Programs for Food Service to Vulnerable Persons”. Chapter 4 contains primary production and processing standards for seafood, poultry meat, meat, dairy products, specific cheeses, egg and egg products and seed sprouts. It also contains a standard dealing with wine production requirements.
43. The two aspects of the Code which are relevant to most of the “restaurant cases” which are common in this jurisdiction are standard 3.2.2, “Food Safety Practices and General Requirements” and standard 3.2.3, “Food Premises and Equipment”. Standard 3.2.2 contains detailed requirements relating to food handling controls, health and hygiene requirements. Standard 3.2.3 contains requirements relating to the design and construction of food premises; floors, walls and ceilings; and fixtures, fittings and equipment.
44. The description given above about the scope of the Code does not do justice to the full extent to which it regulates the conduct of food businesses or the sale of food. However, it is sufficient to indicate that it would be quite wrong to approach the interpretation of s 27 by reference only to the local, small scale application of a small part of the Code to a particular restaurant. Section 27 must be seen as the key provision through which a very extensive and detailed regulatory regime is enforced, both in relation to the smallest food seller and the largest multi-national food conglomerate.
Statutory context
45. The context in which s 27(1) appears, namely, the other offence provisions in Part 3 of the Act, does not indicate that s 27(1) should be interpreted as creating a single offence for all breaches of the Food Standards Code. There is a distinction between the offences in Division 3.2, “Serious offences relating to food”, which each provide for a sentence of imprisonment, and those (including s 27) which appear in Division 3.3, “Other offences relating to food”, which do not provide for a sentence of imprisonment. There are different maximum penalties for the offences in Division 3.3: 750 penalty units (ss 20, 21), 500 penalty units (ss 22, 24, 25, 26, 27) and 400 penalty units (s 23). That range of penalties does not lead to any inference that s 27 should be read as involving only a single offence for all breaches of the requirements of the Food Standards Code. Having regard to the scope of the Code and the range of situations in which it might be applicable, the contention that exposure to multiple penalties of 500 penalty units would be outside the scope of what could have been intended by the legislature should not be accepted.
46. It is also relevant to note that the principal statutory defence in relation to contraventions of s 27 is that provided for in s 30. That section provides that it is a defence if the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence by the defendant or by another person under the defendant’s control. In s 30(2) there is a series of specific ways in which the defence can be made out. Depending on which of the various provisions of the Food Standards Code are alleged to have been contravened this defence may be applicable in different ways. This tends against interpreting s 27 as encompassing all breaches of requirements of the Code in a single charge because different requirements of the Code may raise different factual issues in relation to a defence under s 30.
Section 145 of the Legislation Act 2001
47. In Walsh v Tattersall (1996) 188 CLR 77 the appellant had been charged with offences under the Workers Rehabilitation and Compensation Act 1986 (SA) of obtaining by dishonest means “any payment or other benefit under this Act”. The charge was that he obtained “payments or benefits”, being certain specified types of payments totalling particular figures. A majority of the High Court held that it was not open to charge the appellant in the way that he had been charged. Gaudron and Gummow JJ pointed out that the element of dishonesty would need to be tested at different times. They ultimately reached the conclusion that the appellant had not been charged with an offence under the Act because there was no offence of obtaining by dishonest means “payments or benefits”. In approaching the matter in this way their Honours had to address the provision of the Acts Interpretation Act 1915 (SA), which provided that in every Act every word in the singular included plural and the reverse. Their Honours referred to the decision of the Privy Council in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656:
Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
48. Their Honours (at 92) contrasted the situation with that in Montgomery v Stewart.
49. Justice Kirby pointed to a number of different indications in the statute. His Honour pointed to the nature of payments made under the Act, namely, payments which accrue periodically. His Honour pointed to the reference to the word “any”, which he said was apt to give rise to a separate offence for a single occasion of dishonesty occasioning each payment. This combined with a number of other aspects of the statutory scheme led his Honour to conclude that the defence provisions related to individual payments that must be charged individually. His Honour later went on to review the law relating to duplicity in criminal counts and (at 110-112) identified the virtues of a strict approach to the avoidance of duplicity.
50. Walsh therefore illustrates how a contrary intention for the purposes of a similar interpretation provision to that in s 145 of the Legislation Act may be demonstrated by an accumulation of matters including the text, context and purpose of the legislation as a whole.
51. Section 145 of the Legislation Act is not a “determinative provision” and hence the rule in s 145 may be displaced by a contrary intention that is implicit rather than a “manifest contrary intention”: Legislation Act, ss 5, 6(2)-(4).
Conclusion
52. In my view the text of s 27(1), its structure and the context of the section, both within the Act and as part of the cooperative legislative scheme to enforce the requirements of a nationally uniform Food Standards Code, are inconsistent with the proposition that only a single offence is created in circumstances where a person conducting a food business fails to comply with numerous different requirements of the Food Standards Code. The principal factor referred to by the magistrate in reaching the opposite conclusion, namely, the very high maximum penalty, is not, in the context in which it appears, sufficient to displace the other indications that more than one charge may be brought.
53. As a consequence it was open to the prosecution to proceed on the basis of charges as they were proposed to be formulated for the purposes of the defendant pleading guilty.
Did the magistrate’s rejection of the plea of guilty reveal jurisdictional error?
54. The power of a court to reject a plea of guilty is a limited one. Generally speaking an accused ought to be permitted to plead guilty if he or she wishes to do so: R v Martin (1904) 4 SR (NSW) 720; 21 WN (NSW) 233; Meissner v R (1995) 184 CLR 132 at 141. Put at its highest, where the plea is equivocal or made in circumstances suggesting that it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501 at 511, contradictory or ambiguous: R v Murphy (1979) 1 A Crim R 398 at 398 or where an accused pleads guilty but makes it clear that he or she in fact denies the existence of a vital element of the offence charged: R v Jerome McMahon [1964] Qd R 595 at 603-604, a judge has a power to direct a plea of not guilty to be entered notwithstanding that the accused adheres to his wish to enter a plea of guilty (see also R v Steurer [2008] ACTSC 141 at [49]-[53]).
55. None of those circumstances existed in the present case. The charges were charges open to be brought under the Food Act. The defendant had indicated an intention to plead guilty and there was no basis for considering that it did not reflect an admission of guilt. There was therefore no proper basis on which his Honour could refuse to accept the plea of guilty which the defendant had indicated it wished to enter. In the circumstances, his Honour’s refusal to accept the plea of guilty reflected a misconception of the nature or limits of his function and hence fell into jurisdictional error: Craig v South Australia (1994) 184 CLR 163 at 177.
Did the magistrate have power to amend an charge in circumstances where there was no “objection” under s 28 of the Magistrates Court Act 1930 by either party and no consent by the prosecution to the amendment?
56. Section 28 of the Magistrates Court Act 1930 provides a power to amend an charge:
28 Power of court to amend information
(1) If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided. ...
57. The text of the section makes the power of the Court contingent upon an objection being taken either to a defect in the information or summons or to a variance between the information or summons and the evidence. The form of words used in s 28 is different to equivalent provisions which apply in other jurisdictions. Because of the words used in s 28 it may be less flexible and convenient than differently drafted provisions but it is not possible to avoid the words used in the section.
58. In the present case a fair reading of the transcript indicates that the process leading to the amendment of charge 80 was clearly driven by the views of the presiding magistrate rather than by any objection to the form of the charges by the defendant.
59. However, prompted by his Honour, counsel for the defendant did say that to the extent he was able to he wished to agitate the issue that his Honour had raised, namely the appropriateness of a number of charges (T29). Later in the proceedings he said that he did not wish to be heard against his Honour's proposal that he not accept the plea of guilty to four charges as opposed to one (T32). Finally, counsel for the defendant said that he would not be heard against his Honour’s proposal to amend the first charge so as to encompass in the particulars the allegations of breach on the three other charges (T34). In relation to the power to make the amendment counsel for the defendant submitted that the Court had power either of its own volition or on the application of the parties. His Honour proceeded on the basis that the evidence revealed a number of breaches whereas charge 80 only alleged one breach and therefore his Honour was empowered to amend the charge to include all the particulars. Subsequently, counsel for the defendant said (T37):
[COUNSEL FOR THE DEFENDANT]: Your Honour, just to be clear, we don’t object to a defect in a procedural sense of any of the information or the number of them. It may be that the most appropriate approach is for your Honour to give my friend the option of seeking to amend the particulars and either he accepts it or he doesn’t.
HIS HONOUR: That is what I invited and he doesn’t accept it.
[COUNSEL FOR THE DEFENDANT]: If that is the case, your Honour, and it may be that
your honour---HIS HONOUR: I think it is within my powers of amendment to amend the charge to include all the particulars.
[COUNSEL FOR THE DEFENDANT]: As your Honour pleases.
60. In my view the end result of these transactions is that there was not an objection by counsel for the defendant to any defect in any of the informations or to the number of them. In the passage quoted above counsel for the defendant appeared to recognise that the charges to be pursued were ultimately matters for the prosecution. However, despite that, his Honour indicated that he would proceed with the amendment. In my view, there was no power to make that amendment.
61. However, in my view, there is a more fundamental reason why his Honour did not have power to make amendment. His Honour did not have power to amend the charge so as to put it in a form which was not consented to by the prosecution. Fundamentally, as pointed out by Gaudron and Gummow JJ in Maxwell v The Queen, the decision as to the particular charge to be laid or prosecuted is one for the prosecution and it is not susceptible to judicial review. The integrity of the judicial process would be compromised if the courts were to decide, or were in any way concerned with, decisions as to who is to be prosecuted and for what. A majority of the High Court in Likiardopoulos v The Queen (2012) 247 CLR 265 at [37] adopted what their Honours had said in Maxwell:
37. As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. Further, sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages. It is well settled that the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court. However, there is nothing in the conduct of the proceedings arising out of the death of the deceased that has produced unfairness of the kind that would lead a court to intervene to prevent the abuse of its process. (footnotes omitted)
62. The significance of prosecution control over the form of the charges was emphasised in the majority and minority judgments in Ayles v The Queen (2008) 232 CLR 410. That case involved an amendment to a charge which had not been specifically sought by the prosecution. The amendment provision, s 281(2) of the Criminal Law Consolidation Act 1935 (SA), provided:
When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
63. The difference between the majority and minority judgments turned on the emphasis to be placed on the course of the trial during which the prosecutor had indicated that she wished to rely upon an amended legislative provisions. Kiefel J (with whom Gleeson CJ and Heydon J agreed) said (at [71]-[72])
71. In Director of Public Prosecutions (SA) v B Gaudron, Gummow and Hayne JJ referred to the fundamental importance of the line drawn between the decision whether to institute or continue criminal proceedings, the province of the executive, and decisions directed to ensuring a fair trial and the prevention of abuse of the court's processes, the province of the courts. In Maxwell v The Queen Dawson and McHugh JJ pointed out that, save where it is necessary to a fair trial or the prevention of abuse, courts in Australia do not purport to exercise control over the institution and continuation of criminal proceedings. In Barton v The Queen it was said that it ought now be accepted that certain decisions involved in the prosecution process are insusceptible of judicial review. They include the decision whether to lay or prosecute a particular charge. In Maxwell v The Queen the refusal of the trial judge to accept a plea, which the prosecution would accept, was considered to be of the nature of a review.
72. Had the trial judge's order of amendment of the information amounted to the addition of a new charge without the prosecution having determined upon that course of action, there can be little doubt that the appeal should succeed on the ground stated. There would be no occasion for the power given by s 281(2) to be exercised. The sequence of events at trial and statements made by the prosecution do not, however, suggest that the trial judge acted without reference to the prosecution's intentions. The question as to the function undertaken by her Honour, in making the amendments, is one to be determined by reference to, although not exclusively to, the course of the trial and exchanges which took place. (footnotes omitted)
64. The minority judges (Gummow and Kirby JJ), having referred to Maxwell said (at [37]):
37. The last-quoted sentence is of fundamental importance. It affords a most important principle that lies at the head of the resolution of this appeal. A decision to amend an information so as to add or substitute a new charge is plainly a decision about the particular charge to be laid or prosecuted, yet any suggestion that a court could – let alone should – decide for itself the offences with which a defendant is to be charged would be inimical to the judicial process. It also may well raise concerns about the institutional integrity of the courts in the manner discussed in Kable v Director of Public Prosecutions (NSW). (footnote omitted)
65. Their Honours continued (at [39]):
39. Quite aside from these concerns about institutional integrity and the distinct role of prosecutor and judge, the requirements of procedural fairness apply no less to the amendment of informations than to any other aspect of the criminal trial. Where the judge realises that there is a defect in the information, the proper course is to draw the defect to the parties' attention and to indicate that it is for the prosecutor to apply for an order that the information be amended. Such a course would allow the prosecutor to seek the amendment should she or he so wish, and would allow the defence to raise any submissions about the injustice or otherwise of the amendment. In this way, the requirements of procedural fairness and institutional integrity would be upheld. This procedure was not adopted in the appellant's trial. (footnote omitted)
66. At [40] their Honours identified that one of the ways in which the amendment made at the trial was defective was “because her Honour had no power to make it as no application had been made by counsel”. That was consistent with their Honours’ view that the statutory power in that case (which was in broader terms than exist in the present case) could not be invoked because of the principle that placed the choice of charge (and hence amendment) squarely in the hand of the prosecution and unable to exercised without an application by the prosecution.
67. The description of the process of amendment under s 28 by the Full Court of the Federal Court in Martin v Purnell (1999) 93 FCR 181; [1999] FCA 872 at [31] was as follows:
31. Section 28 in effect provides that fairness to the parties may require that, before the information is determined, the informant be given an opportunity by the Court to provide a further formulation of the offence charged or to provide particulars of the facts relied on or, where the charge as expressed is duplicitous, an election confining the charge to a single offence.
68. That explanation of the process places the appropriate emphasis upon the role of the prosecution in formulation of the charge on which it wishes to proceed. It is consistent with the division of functions identified in Ayles and, in the context of a Food Act prosecution, referred to in the obiter dicta of Nield AJ in Kaye v Siddiq [2013] ACTSC 62 at [21].
69. The present case is much starker than Ayles. There was no uncertainty about the opposition of the prosecution to the amendment which his Honour made tocharge 80. The effect of what his Honour did in the present case was to put charge 80 in a form which the prosecutor did not want to prosecute. Clearly enough if a prosecutor does not choose to amend charges in circumstances where an objection has been taken and a magistrate has expressed a view as to whether or not the amendment is necessary or desirable, that might have consequences for the success or otherwise of the prosecution. However it is not open to compel a prosecutor to seek the amendment of charges and it is not within the scope of s 28 to make an amendment to which the prosecution does not consent.
70. In amending the charges in circumstances where it was clear that the prosecution did not consent to the making of the amendment his Honour went beyond the scope of the power which he had under s 28 and hence fell into jurisdictional error.
Was there power in the circumstances to permanently stay the balance of the charges.
71. The Magistrates Court has power to grant a stay to prevent an abuse of its own processes: Grassby v The Queen (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria (2003) 40 MVR 265 at [32], [34]-[38]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134E.
72. In Pearce v The Queen (1998) 194 CLR 610 at [30]-[31] it was recognised that the decision about what charges should be laid in prosecuted was for the prosecution and:
[o]rdinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
73. In Elias v The Queen (2013) 248 CLR 483 the Court found that under the common law of sentencing there is no warrant for a sentencing judge to take into account a lesser maximum penalty for an offence for which the offender could have been but was not charged. The Court recognised that there was power to constrain prosecutorial discretion if it was exercised for some improper purpose. The Court (at [34]-[35]) said
34. It may be accepted that the prosecutor's selection of the charge is capable of having a bearing on the sentence. Commonly this will be the case where the prosecution has a discretion in determining whether to proceed summarily or on indictment. However, the separation of functions does not permit the court to canvass the exercise of the prosecutor's discretion in a case in which it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate. In this context, the observations of Dawson and McHugh JJ in their joint reasons in Maxwell v The Queen bear repeating:
"No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority."
35. Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the court has the power to relieve against the resulting abuse of its process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentence by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged. (footnotes omitted)
Having regard to the absence of any requirement under s 27 that all contraventions of
the Food Standards Code be charged as a single offence, it was open to the prosecution to proceed on the four charges to which the defendant had agreed to plead guilty. There was no abuse of process in charging four separate offences in circumstances where the conduct alleged in relation to the offences was different: Pearce at [31]; cf Nahlous v R (2010) 77 NSWLR 463 at [17]. Recognising that the categories of abuse of process are not closed: Batistatos v RTA (NSW) (2006) 226 CLR 256 at [9], and that oppression of a defendant may give rise to an abuse of process: see the authorities referred to in Halsbury’s Laws of Australia, [130-13630] (Footnote 5), there was no oppression or abuse of process merely by reason of the fact that the defendant was exposed to a very significant aggregate maximum penalty.
75. There was no proper basis upon which his Honour could have stayed the balance of the charges. In the circumstances, the Court had no power to permanently stay charges 83, 89 and 90. In doing so, his Honour exceeded his jurisdiction.
Conclusion and orders
76. The plaintiff has established that the Court fell into jurisdictional error in a number of respects: the refusal to accept pleas of guilty, amending a charge contrary to the wishes of the prosecutor and permanently staying proceedings.
77. The refusal to accept the pleas of guilty indicated by the second defendant did not involve the Court making orders that can be quashed by certiorari. Rather, that refusal was merely a step along the way to the orders of the Court staying the charges other than charge 80. The orders that his Honour made, namely, the amendment of charge 80 and the staying of charges 83, 89 and 90, are each orders that may be quashed by certiorari.
78. The intervener submitted that the Court should refuse any relief except a declaration on discretionary grounds. In my view there is no basis upon which to refuse relief in the circumstance of this case. It is appropriate that the operative orders made by the Magistrates Court, namely the amendment of charge 80 and the grant of a permanent stay in relation to the other charges, be quashed.
79. No party sought costs.
80. The orders of the Court are:
1. An order in nature of and to the same effect as a writ of certiorari quashing:
(a) the order made by the Magistrates Court on 24 January 2014 in proceedings CC2013/43180 amending the particulars of that information. (b) the orders made by the Magistrates Court on 24 January 2014 permanently staying informations CC2013/43183, CC2013/43189, and CC2013/43190. 2. The proceedings are remitted to the Magistrates Court, differently constituted, to be dealt with according to law.
I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop.
Associate: Nikolas Willing
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