Matthew Elder v Angelina Metyang
[2020] ACTMC 24
•19 November 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Matthew Elder v Angelina Metyang |
Citation: | [2020] ACTMC 24 |
Hearing Date(s): | 14, 20 October 2020 |
DecisionDate: | 19 November 2020 |
Before: | Chief Magistrate Walker |
Decision: | See [27] – [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Failure to answer bail – Service of notice |
Legislation Cited: | Bail Act1992 (ACT) Bail Regulations 1992 (ACT) Court Procedure Rules 2006 (ACT) Evidence Act 2011 (ACT) Legislation Act 2001 (ACT) Magistrates Court Act 1930 (ACT) |
Cases Cited: | Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 |
Texts Cited: | Pearce, D. and Geddes, R., ‘Statutory Interpretation in Australia’, 8th edition LexisNexis Butterworths 2014 |
Parties: | Matthew Elder (Informant) Angelina Metyang (Defendant) |
Representation: | Counsel K Stitt (Crown) A McKenna (Defendant) Solicitors Director of Public Prosecutions (ACT) (Crown) McKenna Taylor (Defendant) |
File Number(s): | Charge 6815 of 2020 |
CHIEF MAGISTRATE WALKER:
Background
The defendant is charged with one count of failing to answer her bail contrary to s 49(1) of the Bail Act 1992 (ACT) which provides:
(1) A person commits an offence if the person—
(a) gives an undertaking to appear before a court; and
(b) fails to carry out the undertaking.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) The court may issue a warrant to arrest the person and to bring the person before the court.
(3) Subsection (1) does not apply if the person has a reasonable excuse for failing to carry out the undertaking.
The defendant was on bail in respect to offences including refusing to provide a sample of breath for testing. She had been arrested by police and bailed to attend at court. She had attended and was released on bail. She was due to reappear at court on 18 May 2020.
The defendant concedes that she did not attend on that date she was bailed to by the court. She relies upon the existence of a reasonable excuse for her non-attendance. On that day she contacted the court by telephone indicating that she was unwell and unable to attend. She was advised by registry staff that she should obtain a medical certificate.
The defendant’s evidence is that when she was feeling well enough that day she attended a medical practitioner and obtained a medical certificate. That certificate is in evidence. It certifies the defendant unable to work for the period 18 to 19 May 2020 inclusive due to an unspecified medical condition. There was no reference to her court commitment.
The defendant gave evidence that she attended Officeworks, an office supplies shop, across the road from the medical centre with her young children on that day. She sought the assistance of Officeworks’ staff to scan the medical certificate so that it could be emailed to an address given to her by court staff. The email printout discloses that Officeworks emailed a document to her at 3:28 p.m. and that she emailed that on to the court at 4:36 p.m.
The email address to which it was sent contained an error, one word being misspelled. The medical certificate was never received by the court registry. The defendant gave evidence that she was dyslexic. She also gave evidence that she did not receive a “bounceback” email message.
Based on her experience of court process, in particular the traffic matters for which she was due at court, Ms Metyang said that she anticipated an adjournment in the region of four weeks. She was aware that it was sometimes longer. It was her evidence that she had intended to contact the court closer to the four week mark to ascertain when she was required to attend.
Court proceedings on 18 May 2020 are reflected in the transcript which discloses that the presiding magistrate knew that the defendant had contacted the court to advise that she was not feeling well and would provide a medical certificate. He noted that she declined to provide a mobile phone number. The order made was “I will remand her to 2 June 2020 for mention in the A1 list at 9:30 with bail to continue and office to notify a date”.
I interpolate that this was in accordance with the power pursuant to s 33 of the Bail Act, relevantly:
(1) If an accused person has given an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued, whether on any adjournment, postponement or other deferment of the proceedings, or by way of committal, a court may continue the bail already granted in relation to the offence, whether or not the accused person is present in court.
(2) If bail is continued under subsection (1), the undertaking to appear and the bail conditions continue to apply, except to the extent that the undertaking or condition otherwise provides or the court otherwise order.
….
(4) If the hearing of a charge against an accused person is adjourned or postponed, the court may—
(a) continue the person's bail; or
(b) make another order about bail.
….
(6) If bail is continued—
(a) the undertaking to appear is taken to be an undertaking to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued; and
(b) any bail conditions continue to apply.
(7) If an accused person has been released on bail and the court is satisfied that the accused person is because of illness or accident or other sufficient cause unable to appear personally before the court on the day when the person is required to appear, the court may, in the absence of the accused person, order the person to be further remanded to the place, date and time that the court considers appropriate and may order that the undertaking to appear given by the accused person and any agreement entered into under a condition of the grant of bail be continued so as to require the appearance of the accused person at every place, date and time to which the accused person is remanded or the hearing adjourned, postponed or otherwise deferred.
The court registry purported to serve a copy of the defendant’s bail undertaking to her as required by s 34 of the Bail Act, relevantly:
(4) A court continuing bail on an adjournment or a postponement of proceedings must immediately give, or cause to be given, to the accused person a written notice that—
(a) states that bail is continued until the hearing is resumed or stated; and
(b) states the conditions on which bail is presently allowed; and
(c) states the place, date and time to which the proceedings are adjourned or postponed or states that the proceedings are adjourned or postponed to a place, date and time that are from time to time stated in a notice given or sent to the accused person as prescribed by regulation.
The notice detailed the adjournment date of 2 June 2020 at 9:30 a.m. at the Magistrates Court. It bore two stamps. The first stamp stated: “mailed to the defendant” in the space reserved for the defendant’s signature with an indecipherable signature below it attributable to an unidentified deputy registrar. The second stamp stated: “I certify that on 18 May 2020 I served a copy of this bail continuance on the defendant by post. Postal service was effected by prepaid post to the address on the bail document”. This was signed by a, perhaps different, deputy registrar and was date stamped 18 May 2020.
The defendant asserted that she did not receive the notice of the new remand date from the court. Her evidence was that her mail was often misplaced by an aunt who lived with her. She also said that she often did not open her mail even when it was received because she was very busy. She did not deny that it may well have been delivered.
As the defendant did not appear at court on the adjourned date, a warrant was issued for her arrest. On 5 June 2020, the police attended at her premises to execute the warrant. When they attended she expressed surprise.
There being no evidence to the contrary, and no basis to reject the credibility of the defendant, I find the facts in accordance with her evidence and the documentary evidence before the court as recorded above.
Against this background two issues emerge:
(a)as a preliminary issue, was the defendant properly served with notice of the date she was required to appear?
(b)has the defendant raised on the evidence a reasonable excuse for her non-attendance and, if so, have the prosecution disproved beyond reasonable doubt either that it is factually correct or reasonable?
Defence Submissions
The defendant gave her evidence honestly. She made an effort to do what the registry advised in the sense of her attempt to email a medical certificate as to her non-attendance. Her expectation of a four week adjournment was reasonable based on her past experience. She had no indication that her medical certificate had not been received. She did not see the adjournment notice. It was reasonable for her to wait for notice and reasonable for her to expect this to come by email given this was how she had been asked to communicate with the court on 18 May 2020. It was reasonable that she had not contacted the court by the time she was arrested as it was less than three weeks since the day she had been due at court. She should be believed that she intended to contact the court closer to the four week mark. She was surprised when arrested because she genuinely did not know when she had been due at court after her earlier non-appearance for medical reasons.
The defendant directed the court’s attention to Reg (4) of the Bail Regulations 1992 which provides:
A notice under the Act, s 34(4)(c) advising an accused person of the place, date and time to which proceedings are adjourned or postponed must be given or sent to the accused person by giving the notice to him or her or by leaving the notice at his or her last-known or usual place of residence or business with a person who is apparently resident or employed at that place and apparently over 16 years old.
It was submitted that service was not effective but that if the court found to the contrary, the reasonableness of the defendant’s non-attendance was nonetheless not disproved by the prosecution.
Prosecution Submissions
The defendant’s excuse was not reasonable. It was not reasonable for the defendant not to have followed up, for example, by a telephone call to the court, as to what had happened after her non-attendance on 18 May 2020. She had no basis to expect notice by email when the bail documentation records only a residential address, despite the email communication in respect to non-attendance. Further, the defendant was negligent in not opening her mail. She did not know she had to be at court on 2 June 2020 because she did not make appropriate enquiries following her non-attendance on 18 May 2020. Not opening her mail does not provide a reasonable excuse. It should be presumed that she had received the mail in the absence of evidence that she did not receive it, as opposed to just failing to open it. Service should be deemed effective as there is evidence that the notice of continuance of bail was sent.
As to whether the deputy registrar’s certification on the bail continuance document evidenced good service, the prosecutor drew the court’s attention to s 33 of the Bail Act 1992 and rule 6411(1)(b) of the Court Procedures Rules 2006 which provides for service on individuals from the Magistrates Court by serving the document in accordance with rule 6420 which states:
If a document is not required by these rules to be served personally on a person, the document may be served on the person by sending a sealed or stamped copy by prepaid post, addressed to the person, at the person’s address for service.
The prosecution identified the similarity with ss 247(1)(b) of the Legislation Act 2001 which provides:
A document may be served on an individual by sending it by prepaid post, addressed to the individual, to a home or business address of the individual.
The prosecutor noted the timing for deemed service provided for in ss 250(1) Legislation Act:
A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.
Noting that ss 250(2) provides:
However, subsection (1) does not affect the operation of the Evidence Act 2011, section 160 (Postal articles).
Section 160(1) of the Evidence Act 2011 provides:
It is presumed (unless evidence sufficient to raise doubt about the presumption is presented) that a postal article sent by prepaid post addressed to a person at a stated address in Australia or in an external territory was received at that address on the 7th working day after the day it was posted.
The prosecution made submissions as to how the days for service should be calculated, without regard to the possible impact of the Covid-19 pandemic effect on usual mail services.
In respect to Bail Regulation 4, the prosecution submitted that its wording anticipates that notice could be sent by any means, including post and that delivery of the document by post amounted to “leaving the document” at the address. The prosecutor did not address how the remaining requirement of Bail Regulation 4, namely the requirement that the notice be left with a resident or employee apparently over 16 years of age, would be met.
Consideration
The date of the offence charged is not 18 May 2020 but the adjourned date of 2 June 2020. That being the case the issue of the defendant’s illness, certified or otherwise, is largely irrelevant, the adjournment nonetheless having been granted by the magistrate.
The defendant assumed that she would be notified of a new date by email although that was on her evidence an assumption only; there was no indication from the registry that she would be informed in that way. She assumed that any adjournment would be for a date at least four weeks after 18 May 2020 but the basis for that assumption was only that that had been the case in one of her other court matters. She indicated that if she had not been notified closer to that the date that she assumed the matter may have been adjourned to, she would have followed up with the court registry. She accepted that she simply did not read all of her mail and that notice of the adjourned date from the court may have been amongst it. This evidence establishes that she did not know when she was required back at court.
But it is a mandatory requirement to the continuation of bail in a defendant’s absence that notice of the continuation and adjourned date be given pursuant to s 34(4) of the Bail Act.
Bail Regulation (4) is made pursuant to s 34(4) of the Bail Act which provides for a notice to be “given or sent as prescribed by regulation”. Whilst the regulation repeats the formulation “given or sent”, what is actually provided for is personal service, that is “by giving the notice to him or her”, or indirect service, that is leaving it in the circumstances described at a certain place with certain persons. Neither of these options contemplates service by post in any form.
I preface the following observations by noting that I am not aware of, nor have I been directed to any authority, touching upon the interpretation of this particular provision.
It is conceivable that the relevant Minister who authorised the regulation intended to limit service to something more likely to be actually received by a defendant than post, despite the postal option being contemplated in the Act. Perhaps regard was had to the loss of liberty that could follow by virtue of the court issuing an arrest warrant for non-appearance if the notice were not received. Alternatively, it is possible that the form of Reg 4 was the unfortunate by-product of an incomplete understanding of the different modes of service generally available to courts by drafters of legislation. It is not readily discernible from the terms of the regulation why it does not put into effect service as contemplated in the Bail Act.
The regulation in its current form demands a significantly greater investment of human resources for service than current court registry practice as reflected in this case, requires. Given the apparent inconsistency between service as contemplated by the Bail Act and that provided for by the regulations, it is attractive to find the provision cannot be applied making way for other legislative provisions that do allow service by post consistent with that envisaged by the Bail Act. However, it is the courts “inescapable duty” [1] to give the legislated words meaning. The Legislation Act 2001, Magistrates Court Act 1930, Evidence Act 2011 and the Court Procedure Rules 2006 all provide for service in various forms which are applicable to certain aspects of Magistrates Court procedure. But they must give way to the particular provision legislated for service of notices in respect to bail.
[1] Pearce, D. and Geddes, R. ‘Statutory Interpretation in Australia’, 8th edition LexisNexis Butterworths 2014, page 6.
Were there any doubt about the application of this basic tenet of statutory interpretation, s 251 of the Legislation Act 2001 clarifies the matter and provides:
(1) This part does not affect the operation of any other law that authorises or requires service of a document otherwise than as provided under this part.
(2) Despite this part, a law (or, if the law is an Act, a regulation under the Act) may provide—
(a) that a document of a particular kind may or must be served (however described) only in a particular way or to a particular address or number; or
(b) for the date (or date and time) when service (however described) of a document is taken to have been made.
Reg 4, albeit confusingly referring to “sent”, is not sensibly capable of any interpretation on its face other than that service by post, prepaid or otherwise, is not effective service of a continuance of bail notice.
That being the case, a mandatory prerequisite for the valid continuation of bail in the defendant’s absence was not complied with. Whilst strict compliance with legislative procedure is not always required, the court must consider both the words of the legislative provision and the effect of failure to require strict compliance (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28).
Reg 4 is couched in mandatory terms – the court must give notice in a particular way. The effect of failure to comply with this requirement is to apply a different standard to the obligation for service than the legislature specified. Non-compliance with the notice requirement may actually or potentially expose a person to criminal prosecution. In these circumstances, strict compliance is required.
In light of defective service of the continuation of bail notice, the prosecution must fail.
Charge 6815/2020 is dismissed.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: S Corish Date: 19 November 2020 |
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