New South Wales Electoral Commission v Evers
[2012] NSWLC 14
•12 October 2012
Local Court
New South Wales
Medium Neutral Citation: New South Wales Electoral Commission v Evers [2012] NSWLC 14 Hearing dates: 18/07/2012 Decision date: 12 October 2012 Jurisdiction: Criminal Before: Magistrate Bradd Decision: The defect in the court attendance notice is not one that can be ignored by virtue of the Criminal Act 1986. The offence that might be established by the evidence is different from that charged in the court attendance notice.
Catchwords: CRIMINAL PROCEEDINGS - defective Court Attendance Notice - whether defect can be ignored - offence established by the evidence different from offence charged - s 16(2), Criminal Procedure Act Legislation Cited: Commonwealth Electoral Act 1918 (Cth)
Criminal Procedure Act 1986
Local Government Act 1919
Local Government Act 1993
Parliamentary Electorates and Elections Act 1912Cases Cited: CTM v R [2007] NSWCCA 131
CTM v The Queen [2008] HCA 25
Hickling v Laneyrie (1991) 21 NSWLR 730
Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363Texts Cited: R N Howie and P A Johnson, Criminal Practice and Procedure NSW (LexisNexis) Category: Principal judgment Parties: Gregory Brandtman, New South Wales Electoral Commission
Tania Evers (the defendant)Representation: Ms Johnson for the Crown Solicitor
Defendant in person
File Number(s): 2012/89739
Judgment
Preliminary issue
Background
A court attendance notice has been filed in the criminal registry naming Ms Evers as a defendant. The details of the offence are that "the defendant was an elector who did fail to record her vote at an election when required to do so on 4 June 2011 at Waverley". The short particulars of the offence are as follows:
The defendant being a person whose name appeared on the roll of electors for the Electoral District of Waverley Hunter, failed to vote at the Waverley Hunter Ward Local Government By-Election held on 4 June 2011 when required to do so.
The statutory provision describing the offence is section 120F of the Parliamentary Electorates and Elections Act 1912.
At the hearing, counsel for the prosecutor stated that the statutory provision describing the offence was the Local Government Act 1993.
Ms Evers expressed the opinion that the prosecutor should withdraw the court attendance notice and serve a new court attendance notice.
In subsection 16(2), the Criminal Procedure Act1986 enacts:
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the 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:
(a) any alleged defect in it in substance or in form...
The term "indictment" is defined to include a court attendance notice (Criminal Procedure Act, s 15(2)).
According to the authors of Criminal Practice and Procedure NSW (at [2-s 16.35]):
An incorrect reference in an information to the section or Act under which the offence is prescribed is a defect which can be ignored under the section: Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363.
Counsel for the Electoral Commission relies on the case of Voulgarakis. Ms Johnson asserts that when Ms Evers was served with the court attendance notice she was alerted to the particulars of the offence. Ms Johnson asserts that the elements of the offence in the Local Government Act 1993 are the same as the elements in the Parliamentary Electorates and Elections Act 1912.
Ms Evers maintains that the elements of the offence in the Local Government Act 1993 are not the same as the elements in the Parliamentary Electorates and Elections Act 1912.
Voulgarakis
In the case of Voulgarakis the offence charged was laid under a repealed Act. The offence had been enacted in a new Act and was described in identical terms as it had been in the repealed Act. The essential ingredients of the offence in both the repealed Act and the new Act were the same. In the judgment at 4367, Studdert J states:
Nor does the section [s 65 of the Justices Act] allow a magistrate to proceed to convict a defendant of an offence established by the evidence if it is a different from that charged in the information. See Ex parte Lovell; re Buckley (1938) 38 SR 153 and in particular the judgement of Jordan CJ at 173.
Parliamentary Electorates and Elections Act 1912
Section 120C of the Parliamentary Electorates and Elections Act 1912 enacts:
(1) If an elector is indicated on a list prepared under section 120B as not having voted at an election, the Electoral Commissioner shall, within 3 months after the close of the poll, serve a penalty notice on the elector.
(1A) A penalty notice may be served personally or by post.
(2) A penalty notice is a notice in the prescribed form to the effect that, if the elector does not desire to have the failure to vote dealt with by a court, he or she may, within the prescribed time:
(a) give the Electoral Commissioner a sufficient reason for the failure, or
(b) pay to the Electoral Commissioner a penalty, specified in the notice, not exceeding $55.
(3) The Electoral Commissioner is not required to serve a penalty notice on an elector if it appears to the Commissioner that the elector has a sufficient reason for the failure to vote.
(4) If, in response to a penalty notice and within the time prescribed for the response:
(a) the Electoral Commissioner is given a sufficient reason for the failure to vote, or
(b) the penalty specified in the notice is paid to the Electoral Commissioner,
proceedings against any person for the failure to vote are prohibited.
(5) If, in response to a penalty notice, the Electoral Commissioner is given a reason for the failure to vote but the reason is not a sufficient reason, the Electoral Commissioner shall include a statement to that effect in any penalty reminder notice served under the Fines Act 1996.
(6) For the purposes of this section, it is a sufficient reason for the failure of an elector to vote at an election if the Electoral Commissioner is satisfied that he or she:
(a) is dead,
(b) was absent from New South Wales on polling day,
(c) was ineligible to vote at the election,
(d) had an honest belief that abstention from voting was part of his or her religious duty, or
(e) was unable for any reason acceptable to the Electoral Commissioner to vote at the election.
(7) In this section, a reference to the prescribed time for a response to a penalty notice is a reference to:
(a) the time for response specified in the notice, or
(b) if the Electoral Commissioner extends that time (whether before or after its expiration) - the extended time.
Section 120D of the Parliamentary Electorates and Elections Act 1912 enacts:
The Electoral Commissioner shall note on the list prepared under section 120B in relation to each elector on whom a penalty notice is served:
(a) whether or not there has been a response to the notice, and
(b) if there has been a response - whether or not a sufficient reason has been given or the penalty paid.
Section 120E of the Parliamentary Electorates and Elections Act 1912 enacts:
(1) An entry on the list prepared under section 120B to the effect:
(a) that an elector was served with a penalty notice - is evidence of service of the notice,
(b) that there was no response to a penalty notice served on an elector - is evidence that there was no such response within the prescribed time under section 120C, or
(c) that a reason for an elector's failure to vote was given in response to a penalty notice but was insufficient - is evidence that the reason given was not a sufficient reason under section 120C.
(1A) The list prepared under section 120B containing the name of an elector is evidence that the elector did not vote at the election.
(2) Subsections (1) and (1A) apply in relation to a copy of, or an extract from, the list prepared under section 120B certified by the Electoral Commissioner to be such a copy or extract in the same way as it applies in relation to the list prepared under section 120B.
Section 120F of the Parliamentary Electorates and Elections Act 1912 enacts:
(1) An elector who fails to record his or her vote at an election when required to do so is guilty of an offence
Local Government Act1993
Section 312 of the Local Government Act 1993 (the Act) enacts:
A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote.
Section 313 of the Act enacts:
(1) After the close of the poll at a contested election, the copies of the roll of electors used at the election are to be checked by the Electoral Commissioner in accordance with this section to determine:
(a) which electors' names (if any) have been marked more than once, and
(b) which electors (if any) appear to have failed to vote.
(2) In the case of an election administered by a general manager, the general manager must (within the period specified by the Electoral Commissioner) forward the copies of the roll of electors used at that election to the Electoral Commissioner for checking.
(3) The Electoral Commissioner is, for each contested election, to prepare a list of the names of the persons on the residential roll who, although entitled to vote at the election, appear to have failed to vote and do not appear to have a sufficient reason for the failure.
Section 314 of the Act enacts:
(1) The Electoral Commissioner is to serve a penalty notice on each resident who is indicated on the list prepared under section 313 as appearing not to have a sufficient reason for failing to vote at an election.
(2) A penalty notice is to be served within 3 months after the close of the poll at the election to which it relates and, if not served personally, is to be served by post at the address of the resident last known to the Electoral Commissioner.
(3) A penalty notice is a notice in the form prescribed by the regulations to the effect that, if the resident does not desire to have the failure to vote dealt with by a court:
(a) the Electoral Commissioner must be given, within a time stated in the notice, a sufficient reason for the failure to vote, or
(b) a penalty of 0.5 penalty unit must be paid to the Electoral Commissioner.
(4) If, within 28 days after service of the penalty notice, the Electoral Commissioner is given a sufficient reason for the failure to vote or the penalty is paid, the resident is not liable to any further proceedings for the offence to which the penalty notice relates.
(5) If an insufficient reason for a failure to vote is given in response to a penalty notice, the Electoral Commissioner is to include a statement to that effect in any penalty reminder notice served under the Fines Act 1996 in relation to the penalty notice.
(6) For the purposes of this section, it is a sufficient reason for a failure by a resident to vote if the Electoral Commissioner is satisfied that the resident:
(a) is dead, or
(b) was absent from the area on polling day, or
(c) was ineligible to vote, or
(d) had an honest belief that he or she had a religious duty to abstain from voting, or
(e) (Repealed)
(f) was unable to vote for any other reason acceptable to the Electoral Commissioner.
(7) If a penalty notice is served, the Electoral Commissioner is to note on the list prepared under section 313, or on a separate list of the residents on whom penalty notices have been served, whether or not there has been a response to the penalty notice and, if there has been a response, whether a sufficient reason has been given, or a penalty paid, for the failure to vote.
Section 315 of the Act enacts:
(1) It is evidence:
(a) of service of a penalty notice on a resident, or
(b) of a lack of response to a penalty notice served on a resident, or
(c) that a reason was given for a failure by a resident to vote at an election, but the reason was insufficient,
if there is on a certified list a notation to that effect in relation to the resident.
(2) For the purposes of this section, a certified list is a list that is certified by the Electoral Commissioner as (or as a copy of or extract from) the list prepared under section 313 or the separate list prepared under section 314 (7).
Elements of the offence
The elements of the offence charged in the court attendance notice are as follows:
(1) The defendant is a person whose name appeared on the roll of electors for the Electoral District of Waverley Hunter;
(2) The defendant failed to vote at the Waverley Hunter Ward Local Government By election held on 4 June 2011, when required to do so.
The offence established by the evidence is that:
(1) The defendant is a person whose name appeared on the roll of electors for the Electoral District of Waverley Hunter;
(2) The defendant failed to vote at the Waverley Hunter Ward Local Government By election held on 4 June 2011.
The subtle difference between the offence sought to be established by the evidence and the charged offence is that in the latter, the prosecutor is required to prove that the defendant was required to vote. The requirement to vote appears to be proved by the Electoral Commissioner being satisfied that a given reason for the failure to vote is not a sufficient reason, and making such an entry on the list made (Parliamentary Electorates and Elections Act 1912, ss 120C(6), 120E(1)(c)). The list is evidence of the second element of an offence charged under the Parliamentary Electorates and Elections Act 1912 (see ss 120B and 120E). The offence is one of absolute liability.
The elements of an offence laid under section 312 of the Act are as follows:
(1) The defendants name is on the residential roll in respect of the ward or area.
(2) The defendant did not vote at a contested election in the ward or area.
(3) The defendant did not have a sufficient reason not to vote.
Once the defendant gives evidence of a reason not to vote, the prosecutor must prove that the defendant did not have a sufficient reason not to vote. The offence is one of strict liability
Case Law
I have been referred to CTM v The Queen [2008] HCA 25 at [7], wherein it is stated:
When an offence created by Parliament carries serious penal consequences, the courts look to Parliament to spell out in clear terms any intention to make a person criminally responsible for conduct [sic], which is based on honest and reasonable mistake.
For the proposition that because an offence under section 312 of the Act does not carry serious penal consequences it is not necessary for the section to spell out in clear terms an intention to make a person criminally responsible for conduct that is based on honest and reasonable mistake.
Counsel for the prosecutor has drawn my attention to the history of the repealed legislation in CTM v The Queen (at [29] and [34]-[35]) to distinguish it from the case before me.
Counsel for the prosecutor has referred me to Hickling v Laneyrie (1991) 21 NSWLR 730, where it was held by the Court of Appeal that a section of the Liquor Act enacting an offence for the sale or supply of liquor to a person under the age of 18 years excludes the common law ground of exculpation based upon reasonable and honest belief of the accused (at 738 B), because the enactment proscribed certain defences. Counsel for the prosecutor asserts that section 312 of the Act likewise leaves no gap to be filled by the common law.
The cases drawn to my attention by counsel for the prosecutor demonstrate that the particular enactment must be analysed to determine whether an element of offence is one of absolute liability, strict liability, or requires proof of guilty knowledge or intention. The history of the enactment may assist the analysis, as it did in the fore-mentioned cases.
Historical Analysis
In 1947, the Local Government Act1919 was amended so as to include provisions relating to compulsory voting. In the second reading speech, it says that the amendment to the Act of 1919:
In relation to compulsory voting are similar to the compulsory voting provisions of the Parliamentary Electorates and Elections Act 1912-1946 which apply to the elections of members to this house...The procedure for the enforcement of these provisions - adapted from the Parliamentary Electorates and Elections Act is inserted in Schedule 8 of the Local Government Act inserted by this section...if the person has failed to vote without a valid or sufficient reason the council...may institute proceedings for the enforcement of the penalty.
In 1968, provisions relating to compulsory voting in local government elections were deleted from the Act of 1919. In 1976, compulsory voting in local government elections was re-introduced. The 1976 amendment enacted section 74F:
A person who without valid or sufficient reason fails to vote at an election when required by section 74A so to do is guilty of an offence.
Section 74C of the amended Act relates to the returning officer providing a notice to a person of failure to exercise compulsory vote, and provides in subsection (2):
(2) Subsection (1) does not apply in respect of an election where the returning officer is satisfied that the person to whom a notice under that subsection would, but for this subsection, be required to be sent -
(a) is dead;
(b) was, on the day of the election, absent from the area in respect of which the election was held;
(c) was not entitled to vote at the election; or
(d) had a valid and sufficient reason for his failure to vote at the election.
Section 74D of the amended Act relates to a reply by person who failed to vote, and in subsection (3), enacts:
(3) Where a person complies with subsection (1), the returning officer shall -
(a) cause that compliance to be noted on the marked roll opposite the name of that person; and
(b) note in writing on the marked roll opposite the name of that person his opinion whether or not the reason given by or on behalf of that person for his failure to comply with section 74A is a valid and sufficient reason.
The 1976 amendment to the Local Government Act1919 does not enact provisions similar to the provisions in the Parliamentary Electorates and Elections Act. The marked roll is not evidence that a person does not have a valid and sufficient reason not to vote. The person who has failed to vote is sent a notice of the opinion of the returning officer, and has the option of being dealt with by council rather than the Court of Petty Sessions.
In 1987, provisions relating to compulsory voting in the Act of 1919 were amended. The amendments change the law by making provisions similar to the Parliamentary Electorates and Elections Act. The marked roll is, once again, evidence that the reason given was not a sufficient reason under section 74C. The offence section 74F enacts:
(1) A resident who fails to record his or her vote at an election when required by section 74A to do so is guilty of an offence and liable to a penalty not exceeding $50.
The historical analysis shows that the legislature has wavered between the offence being: in 1947, one of absolute liability; to in 1968, not being an offence; to in 1976, being a strict liability offence; to 1987, being an absolute offence. One can only glean from the amendments and the corresponding second reading speeches that the issue was a matter of political controversy, and enactments were amended according to majority political leanings.
In 1992 the Local Government Bill was introduced to the Legislative Assembly. The second reading speech indicates that the proposed enactments were the subject of widespread discussions, and submissions, and "represents a very thoroughly thought out piece of legislation". The Local Government Act 1993 is intended to be a thorough and complete reform of the law, such that no inference can be drawn from the Act of 1919 as to the interpretation of the Act of 1993.
Strict liability
One cannot rely on CTM v The Queen to state that because strict rather than absolute liability will apply to offences carrying penal consequences that absolute rather strict liability will apply with regard to offences not carrying penal consequences. In Proudman v Dayman, as cited in Hickling v Laneyrie (at 734 F):
It is probably still true that unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence.
Using the framework described by Dixon J, I can find no reason to the contrary. The subject enactment allows a person charged to give evidence of a reason for not voting. The reason given may be that the person reasonably but mistakenly believed in the existence of a fact, which, if it had existed, would make the accused person's act innocent. The prosecution may prove the reason is not sufficient by proving beyond a reasonable doubt that the person did not believe in the fact (CTM v R [2007] NSWCCA 131 at [39], [40]).
The Commonwealth Electoral Act 1918 enacts an offence at section 245:
(15) An elector is guilty of an offence if the elector fails to vote at an election.
(15A) Strict liability applies to an offence against subsection (15).
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.
The offence enacted by the Commonwealth Electoral Act 1918 is similar in its construction the offence enacted by the Act. Both provisions make it an offence not to vote, unless the person (elector) has a (valid and) sufficient reason.
The similarity between the two enactments demonstrates that there is no reason why the offence enacted by the Act is not one of strict liability.
Conclusion
I find that the defect in the court attendance notice cannot be dealt with in accordance with the Criminal Act 1986, because the offence that might be established by the evidence is different from the offence that is charged in the court attendance notice.
I note that the offence is alleged to have been committed on 4 June 2011, and section 693 of the Act enacts:
Proceedings for an offence concerning an election or poll under this Act may be instituted any time within 12 months after the offence is alleged to have been committed.
Consequently, prosecution under the Act is statute barred.
Magistrate G Bradd
Downing Centre Local Court
12 October 2012
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Decision last updated: 14 July 2014
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