R v Jason Hackett No. SCCRM 95/501 Judgment No. 5459 Number of Pages 12 Criminal Law

[1996] SASC 5459

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(1), MILLHOUSE(2) AND LANDER(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - information, indictment or presentment - Summary offences joined in information with major indictable offence pursuant to Summary Procedure Act 1921, s102 - charges all arising from same set of circumstances and laid within time limitations prescribed by Summary Procedure Act 1921, s52 and Motor Vehicles Act 1959, s144a - information filed by Director of Public Prosecutions in District Court consequent on committal outside those time limitations - whether, in circumstances, the earlier proceedings were still current - ruling that charges of summary offences were not statute barred. Rex v Killminster 7 Car and P 228 (173 ER 100); The King v Frederick Austin (1913) 1 KB 551; Walsh v Doherty (1907) 5 CLR 196; R v Butler (1939) SASR 265, applied. Herron v McGreaor (1986) 6 NSWLR 246, considered. Adams v R (Court of Criminal Appeal, 20 November 1995, (unreported, available on SCALE); R v Butler (1939) SASR
265, applied.

HRNG ADELAIDE, 12 December 1995 #DATE 20:2:1996 #ADD 28:3:1996

Counsel for appellant:     Mr G Mancini

Solicitors for appellant:    George Mancini

Counsel for respondent:     Mr P R Brebner

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 MATHESON J I agree in general with the reasons of Lander J for dismissing the appeal and add some brief remarks. Lander J set out the information laid in the Magistrates Court and the information presented by the Director of Public Prosecutions in the District Court. He also set out many of the relevant statutory provisions. I add a quotation of the critical s102 of the Summary Procedure Act which reads:
    "102 (1) A person may be charged with any number of
    offences in the same information (either cumulatively or in
    the alternative) if the charges arise from the same set of
    circumstances or from a series of circumstances of the same
    or a similar character.

(2) The charges joined in the same information under
    subsection (1) may include charges of the following three
    classes or any two of those classes:
    (a) major indictable offences;
    (b) minor indictable offences;
    (c) summary offences

(3) Subject to subsection (3a) if an information contains a
    charge of a major indictable offence, all charges of minor
    indictable or summary offences included in the same
    information will be dealt with according to the procedures
    applicable to major indictable offences and if the
    information includes a charge of a minor indictable offence,
    but no charge of a major indictable offence, all charges of
    summary offences included in the same information will be
    dealt with according to the procedures applicable to minor
    indictable offences (but the penalty that may be awarded for
    an offence is unaffected by the fact that the offence is
    dealt with according to procedures applicable to offences of
    a more serious class).

(3a) Where a person has been committed to a superior court
    for trial on an information which includes charges for both
    indictable offences and summary offences, the superior court
    may, if it thinks fit, order that the charges of summary
    offences be remitted to the Magistrates Court and dealt with
    in the same way as if the offences had been charged in a
    complaint.

(4) The Court may direct that -
    (a) charges contained in a single information be dealt with
    in separate proceedings; or
    (b) charges contained in separate informations be dealt
    with together in the same proceedings."

2. After convicting the appellant on the first count of causing bodily harm by dangerous driving, the learned trial Judge, who sat without a jury, rejected defence submissions that counts 2 - 4 inclusive were barred by s144a of the Motor Vehicles Act, and that count 5 was barred by s52 of the Summary Procedure Act. The appellant thereupon pleaded guilty to counts 2 - 5 inclusive and was convicted on those counts also. He now appeals from those convictions.

3. The learned trial Judge gave two reasons for overruling the defence submissions. First, he held that the proceedings commenced in the Magistrates Court were still current, notwithstanding that the DPP had presented a new information in the District Court. He relied in part on R v Butler (1939) SASR 265 at p267. He held that since the charges contained in counts 2 - 5 inclusive were laid in the Magistrates Court before relevant periods of limitation expired, the charges remain valid notwithstanding that they were subsequently incorporated in another information. In my respectful opinion, this part of his Honour's reasoning was correct.

4. Whilst not strictly necessary for my decision, I draw attention to a useful discussion in the judgment of McHugh JA (as he then was), Street CJ and Priestly JA concurring, in Herron v McGregor (1986) 6 NSWLR 246 on periods of limitation. At p253, his Honour said, inter alia:
    "Since the passing of the Statute of Limitations 1623, the
    institution of most civil proceedings has been subject to
    time limitations. Even before that time many actions were
    subject to time limitations: see 4 Bacon's Abridgment, 5th
    ed at 461 et seq. And criminal proceedings heard summarily
    are also invariably subject to time limitations. In civil
    and summary criminal cases, therefore, it hardly seems
    possible for a court to say that an action brought within
    the limitation period is oppressive because mere delay in
    commencing the proceeding has prejudiced the defendant or
    accused person: cf Birkett v James (at 322). The limitation
    period represents the legislature's judgment as to what the
    public interest requires after taking into account the
    relevant factors including the prejudice which delay may
    create. In respect of criminal charges triable on
    indictment, limitation periods are rarely enacted. In the
    absence of legislation, the maxim nullum tempus occurrit
    Regi (time never runs against the Crown) applies: Sheffeild
v Ratcliffe (1615) Hob 334 at 347; 80 ER 475 at 487; Re J (A
    Person of Unsound Mind not so found by Inquisition) (1909) l
    Ch 574. Nevertheless, in my opinion the courts have power
    to stay an action, though brought within the relevant
    limitation period or even though not governed by such a
    period, if the conduct of the plaintiff or prosecutor is
    oppressive to the defendant or accused person."

5. Mr Mancini, counsel for the appellant, sought to challenge the first reason of the trial Judge in the case at bar. If Mr Mancini's interpretation is correct, and the appellant had wished to plead guilty to counts 2 - 5 inclusive in the Magistrates Court (see the relevant procedure in s105), the prosecution on those counts would have been within time, but as he did not do so, those counts are now statute barred. I find it difficult to believe that Parliament intended such a ridiculous result and I reject any suggestion that Parliament was enacting a new regime which would permit the laying of a fresh information ex officio without regard to time limits.

6. Mr Mancini pointed out that neither in s144a of the Motor Vehicles Act nor in s52 of the Summary Procedure Act had Parliament spoken of "the commencement of the prosecution", and he argued that the absence of such words was fatal to the respondent. I do not agree, and I rely on the following authorities for my conclusion.

7. In Rex v Killminster (1835) 7 Car and P 228 (173 ER 100) a bill of indictment had been preferred against the prisoner for night poaching, being armed. At p228 (p101) Coleridge J said:
    "... it is clear that preferring the bill is an act done by
    the party, which is the commencement of a prosecution."

8. In The King v Frederick Austin (1913) 1 KB 551 the appellant was convicted upon an indictment under the Criminal Law Amendment Act 1912 charging him with knowingly living on the earnings of prostitution, an offence under the Vagrancy Act 1898. Before the passing of the Criminal Law Amendment Act 1912, the appellant had been three times convicted of similar offences under the Vagrancy Act 1898. After the conviction in January 1912, the learned Judge passed a sentence of twelve months imprisonment with hard labour with twenty-four strokes with the cat. The question was whether in the circumstances the sentence of whipping could be imposed. The judgment of the Court of Criminal Appeal (Ridley, Phillimore and Avory JJ) was delivered by Phillimore J. At p559 their Lordships said:
    "The question is whether the proceedings in this case were
    pending on December 13, 1912, the date of the commencement
    of the Criminal Law Amendment Act, 1912. We are of opinion
    that they were. The appellant was apprehended on December 7
    and charged on December 9. In the ordinary sense of the
    words these were proceedings pending on December 13 and
    awaiting final adjudication, which in this case took place
    on January 18, 1913. Mr. Travers Humphreys contended that
    'proceedings' must be distinguished from 'prosecution,' a
    word used in other statutes, (for example in s.5 of the
    Criminal Law Amendment Act, 1885), as specifying the limit
    of time from the commission of the offence within which the
    accused is amenable to process. We cannot assent to this
    contention. In our view 'proceedings' and 'prosecution'
    mean practically the same thing in this connection."

9. I also refer to Walsh v Doherty (1907) 5 CLR 196 per Griffiths CJ at p199.

10. Mr Mancini referred to many South Australian statutes where the drafters had used the words "the prosecution may be commenced ...". It is trite but true to say that different drafters often use different language and mean the same thing. I would reject Mr Mancini's argument.

11. The learned trial Judge gave a second reason for his ruling. He said:
    "In the course of his submissions Mr Brebner, of counsel for
    the Director of Public Prosecutions place(d) particular
    emphasis on the provisions of subsection (3) of section 102
    of the Summary Procedure Act.

He stressed that this subsection expressly provided that, in
    any situation in which an information contained a charge of
    a major indictable offence, then any summary offence
    properly included in that information was, by statute, 'to
    be dealt with according to the procedures applicable to
    major indictable offences' i.e. that, where such an
    admixture of counts is proffered, all of them are to be
    processed, from initiation to ultimate disposal by verdict,
    as if they were indictable offences. So it is, he argued,
    that, because there is no time limit imposed in relation to
    the prosecution of major indictable offences, then, by
    necessary implication, the same situation attaches to
    summary offences properly joined in a single information
    with them.

In my opinion this is the plain intendment of the amended
    legislation, subject only to the power of the Court to stay
    a prosecution of a joined summary offence if the
    circumstances warrant a finding that the joinder is
    oppressive and/or otherwise an abuse of process. Had the
    intention of the legislature been otherwise it could readily
    have said so; and it did not. As to section 52 of the
    Summary Procedure Act in particular, it seems to me
    particularly significant that this specifically attaches, in
    its operation, to the making of 'the complaint', being a
    procedure restricted to the disposal of summary offences not
    joined with a major indictable offence. This distinction is
    especially important when it is borne in mind that, as I
    have recited, the statutory definition of complaint includes
    a minor indictable offence disposed of summarily.

True it is that section 144a of the Motor Vehicles Act
    speaks of the initiation of 'proceedings for an offence'
    rather than the making of 'the complaint', but it seems to
    me that this is a distinction without a difference. The
    present critical consideration is the statutory intendment
    as to the basis of dealing with categories of offence
    pursuant to section 102 of the Summary Procedure Act, by way
    of contrast with the statutory provisions related to matters
    processed in accordance with sections 49 and 51.

Moreover, such a conclusion is lent added force by the fact
that section 278(1) of the Criminal Law Consolidation Act
    was expressly amended so as to excise reference to its
    application to felonies and misdemeanours and to render it
    generally applicable simply to 'two or more offences'
    justiciable under that legislation. The Parliament plainly
    intended that the relevant court was to be empowered, on a
    common basis, to deal with all offences founded on the same
    facts or which form, or are part of, a series of offences of
    the same or a similar character. The only limitation, in
    the case of related summary offences, is that they arise
    from the same set of circumstances as a major indictable
    offence or from a series of circumstances of the same or a
    similar character.

I consider that Mr Brebner is patently correct when he
    contends that the legislature has thus drawn a clear
    distinction between those summary offences which are linked
    (in the manner indicated) with major indictable offences and
    those which are not. The very language employed in the
    statute preserves the concept espoused in Grow v Gefkin and
    Others (supra) and also recognised in R v D'Agostini (1987)
45 SASR 204 at 207.

There is simply no warrant, within the four corners of the
    current legislative scheme, for contending that, having
    stipulated for circumstances in which what would otherwise
    be dealt with as summary offences on complaint may be
    processed as if they were major indictable offences through
    the committal process to trial in a superior court, are,
    nevertheless, by implication, to remain subject to
    limitation provisions which are, in terms, restricted in
    application to proceedings initiated by complaint."

12. Like Lander J, I do not agree with the learned trial Judge that where summary offences are joined in the one information with a major indictable offence any statutory limitations otherwise applying to the summary offences cease to apply. I do not consider the words "according to the procedures applicable to major indictable offences" in subs(3) of s102 achieve that object. I do not consider the word "procedures" is apt to include time limitations. I can not believe that Parliament intended the result contended for by a side-wind. Moreover, such a construction could be abused. When out of time for the laying of a charge for a summary offence, the prosecutor could overcome such a problem in some circumstances by including a major indictable offence in the information. I would not support a construction which might have that effect.

JUDGE2 MILLHOUSE J I agree, for the reasons given by my brothers Matheson and Lander, that the appeal should be dismissed.

JUDGE3 LANDER J An information was laid and filed in the Magistrates Court on 29 July 1993 which charged the appellant with the following offences:
    "1. On the 1st day of February, 1993 at Port Willunga in
    the said State drove a motor vehicle in a culpably negligent
    manner, or recklessly, or at a speed, or in a manner which
    was dangerous to the public, and by such negligence,
    recklessness or other conduct caused bodily harm to David
    Ian Jarred.
    Section 19a(3) of the Criminal Law Consolidation Act, 1935.
    This offence is designated as a major indictable offence.

2. On the 1st day of February, 1993 at Port Willunga in the
    said State drove a motor vehicle on a road namely caravan
    park adjacent to the Star of Greece Road while he was
    disqualified from holding or obtaining a licence.
    Section 91 of the Motor Vehicles Act, 1959.
    This offence is designated as a summary offence.

3. On the 1st day of February, 1993 at Port Willunga in the
    said State drove a vehicle namely a motor car on a road
    namely caravan park adjacent to the Star of Greece Road the
    registration of such motor vehicle not then being in force
    under the provisions of Part II of the Motor Vehicles Act,
    1959.
    Section 9 of the Motor Vehicles Act, 1959.
    This offence is designated as a summary offence.

4. On the 1st day of February, 1993 at Port Willunga in the
    said State drove a vehicle namely a motor car on a road
    namely caravan park adjacent to the Star of Greece Road
    without there then being in force, in relation to the said
    motor vehicle, a policy of insurance complying with Part IV
    of the Motor Vehicles Act, 1959.
    This offence is designated as a summary offence.

5. On the 1st day of February, 1993 at Port Willunga in the
    said State drove a vehicle namely a motor car on a road
    namely caravan park adjacent to the Star of Greece Road
    contrary to the terms of a defect notice issued under
    section 160 of the Road Traffic Act, 1961.
    Section 160 of the Road Traffic Act, 1961.
    This offence is designated as a summary offence."

2. The laying of informations of indictable offences is governed by s101 of the Summary Procedure Act 1921. That section provides:
    "(1) Where a person is suspected of having committed an
    indictable offence triable in this State, an information may
    be laid, in accordance with the rules, charging that person
    with that offence.

(2) If the information is laid orally, it must be reduced
    to writing.

(3) An information must be filed in the Court as soon as
    practicable after it is laid."

3. The first count is a major indictable offence. Counts 2, 3 and 4 are summary offences under the Motor Vehicles Act, and Count 5, a summary offence under the Road Traffic Act.

4. The information, which was presented within six months of the date of the alleged offences, contained an admixture of a major indictable offence and summary offences, which is permitted pursuant to s102 of the Summary Procedure Act.

5. Section 102 of the Summary Procedure Act provides that a person may be charged with any number of offences in the same information if the charges arise from the same set of circumstances, or from a series of circumstances of the same or similar character. So also the section permits the joining in the same information of charges of any of the three classes or any of two classes of major indictable offences, or minor indictable offences or summary offences.

6. Where an information which includes both major indictable offences and summary offences is presented to the Magistrates Court, the Court is obliged to deal with the information according to the procedures applicable to a major indictable offence (s102(3)). In those circumstances, of course, there must be a preliminary examination the procedure for which is provided for in s105 of the Summary Procedure Act.

7. Section 105 provides that, if the defendant has, in accordance with the rules, returned a written plea admitting the charge, the defendant will be committed to a superior Court for sentence. Where the defendant appears personally at a preliminary examination to answer the charge and denies the charge, the Court will then proceed to consider the evidence for the purpose of determining whether the evidence is sufficient to put the defendant on trial for an offence (s105(2)(c)).

8. If the Court concludes that the evidence is sufficient to put the defendant on trial for an offence, the Court will commit the defendant to a superior Court for trial.

9. It follows from all of that procedure that if a defendant, in answer to an information which contains a major indictable offence and summary offences, denies the charge and the Court is satisfied that there is sufficient evidence to put the defendant on trial, then the defendant must be committed to a superior Court for the defendant's trial.

10. Upon that happening, as happened in this case, an information is presented to the superior Court by the Director of Public Prosecutions. Section 275(1) of the Criminal Law Consolidation Act provides:
    "Any person may be put upon his trial at any criminal
    sessions of the Supreme Court or District Court, for any
    offence, on an information presented to the Court in the
    name and by the authority of the Director of Public
    Prosecutions."

11. The authority of the Director of Public Prosecutions to lay charges of indictable or summary offences is given to the Director by s7 of the Directorof Public Prosecutions Act 1991.

12. The Director of Public Prosecutions has a duty, subject to s276(2) of the Criminal Law Consolidation Act to present or cause to be presented an information in every case in which a person has been lawfully committed for trial at any criminal sessions (s276(1)).

13. If the Director of Public Prosecutions is of the opinion that there is no reasonable ground for putting a person committed for trial upon his trial for any offence may certify accordingly to the judges of the superior court (s276(2)).

14. Section 278 of the Criminal Law Consolidation Act was amended on 6 July 1992 as part of a legislative scheme, which made sweeping amendments to the criminal justice procedures. Section 278(1) now provides:
    "Subject to the provisions of this Act, charges for two or
    more offences may be joined in the same information if those
    charges are founded on the same facts, or form, or are part
    of, a series of offences of the same or a similar
    character."

15. Section 278 therefore reflects the amendments which were made to the Summary Procedure Act allowing for the joining on the one information, presented in the Supreme Court or District Court, both major indictable offences and summary offences.

16. In Adams v R (Court of Criminal Appeal, 20 November 1995, (unreported, available on SCALE)) the Court determined by a majority that a summary offence may be tried by a jury at the same time as an indictable offence.

17. Here there was a preliminary examination and on 21 April 1994, the accused was committed to the District Court for trial on all five counts in the information. The order for committal of the appellant was made more than twelve months after the date of the alleged offences.

18. The information which was presented in this matter was presented to the District Court by the Director of Public Prosecutions on 20 May 1994 and it restated the same five counts, which were upon the original police information and upon which the appellant had been committed for trial. The information presented in the District Court was in the following terms:
    "JASON HACKETT
    is charged with the following offences

First Count Statement of Offence
    Causing Bodily Harm by Dangerous Driving (Section 19a(3) of
    the Criminal Law Consolidation Act, 1935).

Particulars of Offence
    Jason Hackett on the 1st of February, 1993 at Port Willunga,
    drove a motor vehicle in a manner which was dangerous to the
    public and thereby caused grievous bodily harm to David Ian
    Jarred.

Second Count Statement of Offence
    Drive while Disqualified (Section 91 of the Motor Vehicles
    Act, 1959).

Particulars of Offence
    Jason Hackett on the 1st of February, 1993 at Port Willunga,
    drove a motor vehicle, registered number (SA) SSH-655 on a
    road while he was disqualified from holding or obtaining a
    licence.

Third Count Statement of Offence
    Drive Unregistered Vehicle (Section 9 of the Motor Vehicles
    Act, 1959).

Particulars of Offence
    Jason Hackett on the 1st of February, 1993 at Port Willunga,
    drove a motor vehicle, registered number (SA) SSH-655 on a
    road with the registration of such motor vehicle not then
    being in force under the provisions of Part II of the Motor
    Vehicles Act, 1959.

Fourth Court Statement of Offence
    Drive Uninsured Vehicle (Section 102 of the Motor Vehicles
    Act, 1959).

Particulars of Offence
    Jason Hackett on the 1st of February, 1993 at Port Willunga,
    drove a motor vehicle, registered number (SA) SSH-655 on a
    road without there then being in force in relation to such
    motor vehicle, a policy of insurance complying with Part IV
    of the Motor Vehicles Act, 1959.

Fifth Count Statement of Offence
    Drive Vehicle Contrary to Defect Notice (Section 160 of the
    Road Traffic Act, 1961).

Particulars of Offence
    Jason Hackett on the 1st of February, 1993 at Port Willunga,
    drove a motor vehicle, registered number (SA) SSH-655 on a
    road contrary to the terms of a defect notice."

19. The appellant elected for trial by Judge alone and pleaded not guilty to each of the counts. Subsequently, an order was made pursuant to s110 of the Summary Procedure Act for the trial of the appellant by a Judge of the Supreme Court. His trial proceeded on the first count only and he was convicted of that count on 18 November 1994 by Olsson J.

20. Following the conviction of the accused on the first count, the appellant submitted that counts 2 to 4 had been charged in an information presented outside of a period of one year from the date of the alleged offences, and count 5 had been presented outside of a period of six months from the date of the alleged offence. It was put in those circumstances that the charges for the offences were statute barred and the charges ought not to proceed.

21. As I have already mentioned, counts 2, 3 and 4 involve prosecutions for alleged offences under the Motor Vehicles Act. Section 144a of the MotorVehicles Act provides:
    "Notwithstanding anything contained in any other Act,
    proceedings for an offence against this Act may be brought
    at any time within one year from the date on which the
    alleged offence was committed."

22. Count 5 is an offence under the Road Traffic Act. That Act provides no time limit for the bringing of charges for summary offences and therefore the time limit for the bringing of a prosecution is governed by s52 of the Summary Procedure Act which provides:
    "Where no time is specially limited for making the complaint
    by any statute or law relating to the particular case, the
    complaint shall be made within six months from the time when
    the matter of the complaint arose."

23. The appellant's argument, put simply, is that whilst the police information was laid within time, the information was spent when the Magistrate made an order for committal pursuant to s107 of the Summary Procedure Act of the major indictable offence and the four summary offences. It was said that the information presented by the Director of Public Prosecutions on 20 May 1994 initiated fresh proceedings which, by then, were out of time in respect of counts 2-5 inclusive, because the fresh proceedings were initiated more than one year after the alleged offences were committed. Counts 2, 3 and 4 were therefore barred by the provisions of s144a of the Motor Vehicles Act and count 5 was barred by the provision of s52 of the Summary Procedure Act.

24. The argument was supported by two further propositions. First, that a committal hearing is administrative in nature, and secondly, that upon a determination that there was sufficient evidence to put the defendant on trial for the offences, the Magistrates Court became functus officio, therefore bringing the proceedings to an end. Therefore it follows, so the argument went, that the original proceedings had been determined and the proceedings brought by the Director were fresh proceedings which were statute barred.

25. I must say, I am not sure what the relevance of either of those propositions is to the matter to be determined. It does not seem to me to matter whether the proceedings before the summary court on committal proceedings is administrative, nor that the summary court is functus officio after it makes its order for committal to a superior court.

26. Inherent in the appellant's argument is the proposition that the proceedings before the Magistrate are different proceedings to those in the superior Court. In my opinion that is a misconception.

27. In my opinion, the information which is laid before the Magistrate commences the same proceedings which are in due course determined by a Judge or a Judge sitting with a jury. The information which is laid before the Magistrate generates a procedure which requires the Magistrates Court to determine whether there is sufficient evidence to put the defendant upon his trial. They are not separate proceedings, in my opinion, to those proceedings which are in due course heard in the superior court.

28. The proceedings are commenced by the filing of that information in the Magistrates Court and they are concluded either by the Magistrate determining that the defendant ought not to be committed to the superior court, and in circumstances where the Director does not present an ex officio information to the superior court consequent upon the refusal to commit, or in the alternative, if the Magistrate concludes the defendant ought to be committed to the superior court upon either the Director, giving a certificate under s276(2) or the entry of a verdict by a jury, or the entry of a verdict by a Judge sitting alone, or the filing of a nolle prosequi. They are one and the same proceedings, in my opinion, from start to finish.

29. That is consistent with the decision of this Court in R v Butler (1939) SASR 265 in which the Court said:
    "There is no doubt that the proceedings before a Magistrate
    are, for some purposes, the commencement of the prosecution,
    which ends in conviction or acquittal in the Supreme Court."

30. In my opinion, the filing of the information in the Magistrates Court was the commencement of proceedings for the purpose of s144a of the Motor VehiclesAct.

31. Counsel for the Director also argued that the effect of the legislative scheme, which was initiated on 6 July 1992, and which is more precisely set out in Adams v R (supra) allows, where there is a joinder of a summary offence with a major indictable offence, or indeed, the joinder of a summary offence with a minor indictable offence, for the summary proceedings to be brought without any regard to any time limit imposed by any special Act or by the Summary Procedure Act.

32. It was argued that ex officio proceedings could be brought at any time without regard to any time limits, and therefore if an ex officio information included in it a major indictable offence and a summary offence, which is permissible by virtue of s278 of the Criminal Law Consolidation Act, the summary offence thus joined was not subject to any statutory injunction preventing the bringing of proceedings for summary offences within a shorter time.

33. I understood the argument to be that the Director maintained that he could bring an ex officio information in circumstances where no information has been filed in the Magistrates Court, and where there has been no refusal to commit. I have already dealt with the situation where the Director files an ex officio information after a Magistrate has refused to commit upon an information filed in the Magistrates Court.

34. Whilst it is not strictly necessary to decide upon the correctness of the proposition advanced by counsel for the Director, because the circumstances of this case did not include an ex officio information where no information had been filed in the Magistrates Court, in my opinion that argument is not tenable. There is nothing in the legislative scheme, in my opinion, which supports the proposition that Parliament either intended that the time limits which apply to summary offences not apply in the circumstances predicated, or alternatively that Parliament overlooked that proposition and that the legislation has that effect.

35. It seems to me that if the Director was to lodge an ex officio information in circumstances where no information had been filed in the Magistrates Court, and the information included a major indictable offence and a summary offence under the Motor Vehicles Act, more than twelve months after the alleged summary offence occurred, there is no reason why the defendant, in those circumstances, could not claim the benefit of s144a, or if the summary offence arose under some other legislation which did not itself impose a time limit, the benefit of s52 of the Summary Procedure Act. When an ex officio information is laid in those circumstances, it is the initiating proceeding and must if it is to include an offence to which the Summary Procedure Act applies, comply with s52 of that Act or any special Act which provides a time limit.

36. I can find nothing in the legislation to support the submission that Parliament intended to allow, or that the legislation has the effect of allowing, the joinder of summary offences with major indictable offences when the time has expired for the laying of a complaint in relation to those summary offences.

37. In my opinion, for the reasons I have mentioned, the appeal ought to be dismissed.