Terence Amador v Minh Tran
[2017] VMC 11
•4 APRIL 2017
| IN THE MAGISTRATES’ COURT OF VICTORIA AT SUNSHINE |
| CRIMINAL DIVISION |
Case No. G11368999
| TERENCE AMADOR | Informant |
| v | |
| TRAN, MINH | Accused |
| MAGISTRATE: | MAGISTRATE MACCALLUM |
| WHERE HELD: | SUNSHINE MAGISTRATES’ COURT |
| DATES OF HEARING: | 15 FEBRUARY 2017 |
| DATE OF DECISION: | 4 APRIL 2017 |
| CASE MAY BE CITED AS: | TERENCE AMADOR V MINH TRAN |
| MEDIUM NEUTRAL CITATION: | [2017] VMC011 |
REASONS FOR DECISION
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | N/A | LUCY KIRKLAND, SUNSHINE PROSECUTIONS |
| For the Accused | N/A | JOSEPHINE MCCOLL VICTORIA LEGAL AID |
HER HONOUR:
This is a dispute about the validity of the charge brought against the Accused, Minh Tran.
The Defence has brought an application for dismissal of the charge.
THE CHARGE
The Accused is charged with one charge of, at Albion on 20 October 2014, breaching an intervention order to which he was subject, by committing prohibited behaviour towards the protected person, contrary to section 100(2) of the Personal Safety Intervention Orders Act 2010. This is a summary offence. Pursuant to section 7 of the Criminal Procedure Act 2010 (`the CPA’), a proceeding for a summary offence must be commenced within 12 months after the date upon which the offence is alleged to have been committed.
ISSUES FOR DETERMINATION
There are four principal issues to be determined by the Court:
a.Does the proceeding commenced by the filing by the Informant of the Charge – Sheet and Summons on 19 October 2015 continue, in circumstances where the summons was extended once but never served?
b.If the answer to question (a) is `no’, does the Court have jurisdiction to hear the matter?
c.Does the `Charge - Sheet and Warrant to Arrest’ filed with the Court on 8 January 2016 constitute a new proceeding that has been commenced out of time?
d.If the answer to question (c) is yes, does the Court have jurisdiction to hear the matter?
The answer to these questions involves an inquiry as to the legal meaning of the relevant provisions of the CPA.
AGREED FACTS
The following facts are agreed.
The Accused is alleged to have committed the offence on 20 October 2014.
The expiry period for the initiation of a criminal proceeding was 20 October 2015.
On 19 October 2015, one day before the expiry of the statutory limitation period, the Informant filed a charge at the Sunshine Magistrates’ Court. The charge appears on the prescribed form, the `Charge-Sheet and Summons’, and is dated 19 October 2015. It is conceded by the Accused that the proceeding was validly commenced.
10.A first mention date of 21 December 2015 was set by the Registrar who issued the Charge-Sheet and Summons.
11.The Charge-Sheet and Summons were never served.
12.On 8 January 2016, the Registrar of the Magistrates’ Court extended the time appointed in the summons for attendance to 15 March 2016.
13.On 8 January 2016, the Informant sought a warrant to arrest the Accused, pursuant to section 12(5) of the CPA. The prescribed form issued by the Court is entitled `Charge – Sheet and Warrant to Arrest’. It states that the Informant sought the warrant on grounds that he had been unable to serve the Accused. On 11 January 2016, the Charge – Sheet and Warrant to Arrest was issued by the Registrar having been satisfied by evidence on oath that the Accused was avoiding service. Like the Charge – Sheet and Summons, the Charge- Sheet and Warrant to Arrest combines the charge and the warrant to arrest. The charge as it appears on the Charge- Sheet and Warrant to Arrest is identical to the original charge.
14.The Informant did not attempt to serve the charge and summons again.
15.The Accused was arrested on the basis of the warrant and was bailed to appear at the Sunshine Magistrates’ Court on 28 July 2016.
16.On 28 July 2016, Mr Tran was remanded to appear on 24 August 2016 for a summary case conference, and bail was extended.
17.On 24 August 2016, Mr Tran was remanded to appear on 11 November 2016 for the purpose of a contest mention, and bail was extended.
18.On 11 November 2016, Mr Tran was remanded to appear on 15 February 2016 for the purpose of legal argument on the question of whether the proceeding was commenced out of time, and bail was extended.
RELEVANT PROVISIONS OF THE CPA
19.The parties referred the Court to various sections of the CPA which govern the commencement of summary criminal proceedings.
20.Part 2.1 of the CPA sets out the ways in which a criminal proceeding is commenced. It provides:
Part 2.1 – Ways in which a criminal proceeding is commenced
5 How a criminal proceeding is commenced by –
(a) filing or signing a charge-sheet in accordance with section 6; or
(b) filing a direct indictment in accordance with section 159; or
(c) a direction under section 415 that a person be tried for perjury.Note
A proceeding may also be commenced under section 83AL of the Sentencing Act 1991. (Emphasis added).
21.Part 2.2 of the CPA is headed `Charge-sheet and listing of matter’. It sets out the procedure by which a criminal proceeding is commenced in the Magistrates’ Court. It provides:
Part 2.2 – Charge-sheet and listing of matter
6Commencement of a criminal proceeding in the Magistrates’ Court
(1) A criminal proceeding is commenced –
(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or
(b) if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
(c) if a summons is issued under section 14, at the time the charge-sheet is signed.
Note
A criminal proceeding against a child is commenced in the same manner in the Children’s Court: section 528 of the Children, Youth and Families Act 2005(2)If a charge-sheet is filed in accordance with the method prescribed by the rules of the court for electronic filing, the requirements of sections 8(1) and 9(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.
(3) A charge-sheet must –
(a)be in writing; and
(b)be signed by the informant personally; and
(c)comply with Schedule 1.
Note
Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.(4)The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily. (Emphasis added).
22.Section 7 of the CPA sets the time limit for the filing of a charge-sheet. It provides:
7 Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a) otherwise provided by or under any other Act; or
(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
23.Part 2.3 of the CPA, sets out the procedure for notifying an accused of the court appearance. It provides:
Part 2.3—Notifying accused of court appearance
Division 1—Summons or warrant to arrest
12 Court may issue summons or warrant to arrest
(1)On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates’ Court for the issue of –
(a) a summons to answer to the charge directed to the accused; or
(b) a warrant to arrest in order to compel the attendance of the accused –
unless a notice to appear has been served on the accused under Division 2.
(2)An application under subsection (1)(b) must be made by the informant personally but an application under subsection (1)(a) may be made by the informant or a person on behalf of the informant.
(3) An application under subsection (1) may be made by the applicant in person or by post.
(4)On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue –
(a) a summons to answer to the charge; or
(b) subject to subsection (5), a warrant to arrest.
(5)A registrar of the Magistrates’ Court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that –
(a) it is probable that the accused will not answer a summons; or
(b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or
(c) a warrant is required or authorised by any other Act or for other good cause.
24.Section 13 of the CPA sets out the procedure to be followed where a summons to answer a charge is issued under section 12 or 14, or a warrant to arrest is issued under section 12. It provides:
13 Summons or warrant to be accompanied by charge-sheet and notice when served
A summons to answer to a charge issued under section 12 or 14 or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied by—
(a)a copy of the charge-sheet; and
(b)a notice, in the form prescribed by the rules of court, containing—
(i)if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and
(ii)if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and
(iii)advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv)details of how to contact Victoria Legal Aid.
25.Section 14 of the CPA sets out a process for police or public officials to issue a summons, and is not presently relevant.
26.Section 15 of the CPA sets out the contents of summons to answer a charge.
27.Section 16 of the CPA provides the mechanism for service of the summons on the Accused.
16Personal service of summons
Except where otherwise expressly enacted, every summons to answer to a charge must be served personally on the accused in accordance with section 391—
(a)subject to paragraph (b), at least 14 days before the return date;
(b)in the case of a charge for an indictable offence in respect of which a registrar of the Magistrates' Court has fixed a date for a filing hearing, at least 7 days before that date or any other time before that date that is prescribed by the rules of court.
Note
See section 399(4) for filing in court of affidavit or declaration of service.
28.Section 19 of the CPA sets out the procedure for extension of the return date of a summons, where a summons is not served.
19 Extension of return date if summons not served
(1) If the informant has not served a summons to answer to a charge, the appropriate registrar may extend a return date specified in the summons without cause on one occasion on the application of the informant –
(a) before the return date; or
(b) within 28 days after the return date.
(2)The appropriate registrar may extend a return date on a subsequent occasion on the application of the informant –
(a) before the current return date; or
(b) within 28 days after the current return date –
if the registrar is satisfied by sworn evidence, whether oral or by affidavit, that reasonable efforts have been made to serve the summons.
Note
See also section 331 as to the court's general power of adjournment.
29.As stated above, it is conceded that the summons was validly extended once by the Informant.
SUBMISSIONS OF THE PARTIES
30.The parties informed that Court that there is no Supreme Court authority that has considered these questions.
Defence submissions
31.The Defence submit that the proceeding commenced on 19 October 2015 by Charge – Sheet and Summons did not continue as the summons was never served. It submitted that this proceeding is not on foot, effectively having lapsed.
32.It was submitted that the Registrar’s power to extend the return date, contained in section 19 of the CPA, is only a power to extend time for service of a summons. The Registrar does not have the power under section 19 of the CPA, or any other statutory provision, to extend the time to file a charge. The extension of the return date on 8 January 2016 allowed the Informant further time to attempt to serve the summons, but he did not attempt to do so. Instead, the Informant relied on the Charge – Sheet and Warrant to Arrest. The Defence submit that for the Charge – Sheet and Warrant to Arrest to have initiated a valid proceeding, it would need to have been filed within the 12 month statutory period which ended on 20 October 2015.
33.The Defence submit that the Charge – Sheet and Warrant to Arrest does not contain a duplicate charge, but rather a new charge. Thus, it is submitted that the proceeding currently on foot was commenced out of time, and the Court has no jurisdiction to hear it.
34.The Defence submitted that for the proceeding commenced by Charge-Sheet and Summons on 19 October 2015 to be validly commenced and to continue, the Informant would need to have served the summons 14 days prior to the extended return date (by 1 March 2016), or to have filed the Charge-Sheet and Warrant to Arrest on or before 20 October 2015.
35.The Defence rely on a decision in the Magistrates’ Court, Constable Sally Whyte v Diana Di Tomaso.[1] That decision refers to another decision of the Magistrates’ Court which has not been published, and to which the parties did not have access, where the Magistrate came to the same conclusion. In Di Tomaso’s case the summons had not been extended, it was a case of the summons not being served. The Defence have submitted that the factual difference is immaterial. The Magistrate concluded that the use by the Informant of the warrant process where a summons had not been served, was “a process to revive a proceeding in which there was no work to do, given that the initial summons was then statute barred”[2].
[1] [2014] VMC 24.
[2] Ibid, page 8, paragraph 3.
36.The Defence submit that the language of the CPA, particularly sections 6 and 12, supports their position. The reasoning is as follows. Section 6 requires an Informant to first file a charge sheet, before making application for a warrant under section 12. Section 12(1) states that `[o]n the filing of a charge-sheet under section 6” an application may be made for the issue by the Court of a summons or a warrant. Therefore, upon each application for a warrant pursuant to section 12, a new charge sheet must be filed. It is submitted that the two sections read together in this way means that each time the warrant procedure is used by the Prosecution, a new proceeding is commenced.
37.The Defence submits that public policy supports the above interpretation. The reasoning is as follows. Section 7 intends that summary offences are to be dealt with expeditiously, and therefore sets a limitation period of 12 months. Section 12 sets a deadline for the summons procedure, and that deadline is contained in section 16 which provides that a summons to answer a charge must be served 14 days before the return date. There is no statutory deadline set for the warrant procedure. The Defence submits that if the Prosecution is correct, provided that a charge sheet is filed within 12 months, where a summons lapses, a warrant could be applied for at any time, for example 20 years later, and that would give rise to a `ridiculous outcome’. It is submitted that the legislation should be interpreted in a manner that requires a Charge-Sheet and Warrant to Arrest to be filed within the 12 month statutory limitation period.
38.The Defence also rely on the Supreme Court decision of Sinclair v Magistrates’ Court at Ringwood[3], in which Her Honour Warren J (as she then was) declared that a summons for an offence under the Summary Offences Act 1966 had lapsed on the ground that the mention date had not been validly extended. Warren J stated that section 33 of the Magistrates’ Court Act was couched in mandatory terms so that the life of a summons could be extended within certain time constraints. Her Honour states further that: “It can be reasonably assumed that the legislature intended that the provisions place a burden upon an informant to ensure that a charge and summons proceeds to hearing before the Magistrates’ Court expeditiously”[4] and that the “procedural requirements of the legislation governing the laying of charges and the service of summons must be strictly complied with, indeed, such provisions are mandatory”.[5]
[3] [1998] VSC 170.
[4] Paragraph 12.
[5] Paragraph 12.
39.In Smith v Chalmers[6], Ashley J upon review of Sinclair’s case and Nitz v Evans[7] (which was a case that considered whether there had been service of a true copy of the summons in conformity with the requirements of section 34(1)), stated that: “What comes out of those decisions…. is the insistence that, in a criminal proceeding, there be strict compliance with the requirements of the legislation governing the laying of charges and the service of summons. What further comes out of those decisions is the principle that, in the absence of such compliance, the Magistrates' Court is precluded from proceeding to hear and determine the charge”.[8]
[6] [2003] VSC 236.
[7] (1993) 19 MVR 55.
[8] paragraph 23, footnotes omitted.
40.See also Dawson v Magistrates’ Court of Victoria[9] in which Warren J affirmed the position her Honour had taken in Sinclair’s case.
[9] [2003] VSC 336 at paragraph 9.
41.Although the factual situation in Sinclair’s case is different to the facts presently before the Court, the Defence rely on it for the purposes of the settled principles relating to strict compliance with the laws concerning the commencement of criminal proceedings.
Prosecution submissions
42.The Prosecution submit that the Charge – Sheet and Summons issued on 19 October 2015 remains alive and was validly extended by the Registrar. It was submitted that the legislation does not state that a charge expires at any time and that as a consequence, this proceeding has never lapsed.
43.The Prosecution submit further that the charge filed on 8 January 2016 is not a new charge, but simply a duplicate of the charge filed on 19 October 2015. It is submitted that the charge is, in substance, identical and that `the paperwork required to be prepared by the Informant in these circumstances does not constitute the commencement of new proceedings due to the original charge being `live’.[10]
[10] Written submissions, paragraph 15.
44.The Prosecution submit that a proceeding may be commenced by the filing of a charge sheet pursuant to section 6. The commencement of the proceeding is based on this step alone. In the absence of any statutory provision stating when or how a charge expires, it remains live. The Informant is not accused of any inaction or impropriety. He took two steps – one was to extend the summons, and the other for an issue of the Charge-Sheet and Warrant to Arrest given that he was of the view that the Accused was avoiding service. Section 12 allows for either a summons or warrant to be issued. Section 12(5) contemplates that the warrant procedure may be used by the Prosecution in circumstances where the pre-conditions of the section are met, and this is the step that the Informant chose to take.
45.The Prosecution submits that the Informant was acting in fairness to the Accused by first issuing a summons, but then being unable to serve it, making application for a warrant. The warrant procedure is an `escalation’ of the summons procedure. The Informant made no application to the Registrar for extension of time in which to bring the charge, and conceded that the CPA does not permit any such application to be made. The paperwork shows that the charge is identical in every way and the Informant was attempting to employ an escalated mechanism to bring the Accused before the Court.
46.The Prosecution submit finally that section 331 of the CPA permits the court to `adjourn the proceeding and bail the accused on his own undertaking to appear at court on the next occasion.’ I do not agree that this provision may be used to cure defects in the Court’s jurisdiction to hear a matter. The provision itself requires there to be a valid proceeding in existence, and I do not consider that section 331 supports the Prosecution in its arguments.
PROJECT BLUE SKY
47.Following the authority of the High Court of Australia in Project Blue Sky[11], the function of the Court is to discern the legislative purpose of the statutory provisions. The correct approach to statutory construction is to construe legislation in a manner that is consistent with the language and the purpose of all of the provisions in the statute, and which presumes that provisions are intended to give rise to harmonious goals.[12]
[11] (1998) 194 CLR 355.
[12] Paragraphs 69 -71.
48.The first step is to begin with the text of the provision by focussing on the plain meaning of the words. Second, those words should be read in their context, which is, `by reference to the language of the instrument viewed as a whole’.[13] Third, meaning must be attributed to all words.[14]
[13] Ibid, p. 381
[14] Ibid, paragraph 71.
49.The relevant purpose of the CPA is set out in section 1(a), as follows:
1Purposes
The purposes of this Act are—
(a) to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court.
ANALYSIS AND FINDINGS
50.I have considered the submissions of the parties, as well as the applicable legislative provisions, and the case law that they have referred to as well as the other Supreme Court decisions that I have referred to below.
51.For the reasons given below, I agree with the Prosecution that the proceeding was validly commenced on 19 October 2015 by the filing of the charge-sheet by the Informant, that the charge remains live, and that the Court has the jurisdiction to hear the matter. I find further that the warrant that was filed with the Court on 8 January 2016 did not commence a new proceeding, and that the charge referred to in the Charge-Sheet and Warrant to Arrest is the same charge as the one initially brought by the Informant on 19 October 2015. My reasons are as follows.
52.Sections 5 and 6 of the CPA state that the criminal proceeding is commenced by the filing of a charge sheet containing a charge. It is not disputed that the criminal proceeding was commenced at the time the charge sheet was filed (19 October 2015). In this instance, the Informant has elected to bring the charge by the filing of a summons (section 6(1)(a)).
53.The following legal principles as to the function of the charge, as well as the requirements for bringing a valid charge, have been recently restated by the Court of Appeal:
“(a) at common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence;
(b) in more recent times, the charge is also to inform the defendant of the substance of the offence which he is called on to meet;
(c) schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge;
(d) a valid charge must specify all the elements of the offence that the defendant is alleged to have committed;
(e) the charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge;
(f) an invalid charge should be quashed by the Court unless validly amended;
(g) information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge.” 4 (authorities omitted.)[15][15] Baiada Poultry v VWA [2015] VSCA 344, paragraph 157, per Robson AJA, Ferguson and McLeish JA concurring (paragraph 5).
54.The Defence has not suggested that the charge is defective in any technical sense.
What is relevant for present purposes is the principle that the bringing of a valid charge founds and enlivens the jurisdiction of the Court.[16] The proceeding is not commenced, or the jurisdiction of the court is not founded by either the summons or warrant procedures referred to in section 12 of the CPA. The language of section 12(1) supports this interpretation, commencing with the words `On the filing of a charge-sheet’. As noted by Cavanough J in Guss v Commissioner of Taxation[17], the court forms have been prescribed, pursuant to the Magistrates’ Court Criminal Procedure Rules 2009, to combine the charge sheet and warrant to arrest and the charge-sheet and summons, whereas “[s]ections 5, 6, 12 and 13 seem to envisage that each charge-sheet will be a stand-alone document.’[18]
[16] Ibid, paragraph 56.
[17] [2015] VSC 259, paragraph 13.
[18] Ibid.
55.The language of the CPA expressly contemplates the procedure which was undertaken by the Informant. Sections 5, 6 and 12 of the CPA separate the process of laying the charge, which must occur within the statutory period of 12 months, and the processes that may be used by the Prosecution pursuant to section 12, to notify the accused of the court appearance. Those steps are as follows.
56.First, section 7 of the CPA states that a proceeding for a summary offence must be commenced within 12 months after the date upon which the offence is alleged to have been committed. The heading of section 7 states that the time limit is for the filing of the charge-sheet.
57.Once filed, an application may be made to a Registrar of the Magistrates’ Court for the issue of –
a.a summons to answer to the charge directed to the accused; or
b.a warrant to arrest in order to compel the attendance of the accused (the notice to appear procedure is not presently relevant).
58.Section 19 of the CPA sets out the procedure for extension of the return date of a summons, where a summons is not served. Sinclair’s case has clarified that in circumstances where a summons has not been extended within the statutory timeframes, the summons lapses and so does the jurisdiction of the Court to hear the matter. That case concerned circumstances where the Prosecution was unable to satisfy the Court that the Informant had validly extended the summons. That is not the case here. The CPA is silent on the effect on the Court’s jurisdiction where the summons is validly extended and not served. It is reasonable to conclude that in such circumstances, the summons lapses. The purpose of the summons is, to use the language of the CPA, to direct the accused to answer the charge. It lapses because it has been unable to fulfil its statutory purpose within the mandated time frame. However, that does not mean that the charge lapses or expires, depriving the Court of the jurisdiction to hear and determine the criminal proceeding. The function of the summons is not, for the reasons set out above, to ground the jurisdiction of the court. That is the role of the charge both at common law and under the CPA.
59.The language of section 12(5) of the CPA supports this interpretation. Section 12(5) expressly permits the issue by the court of a warrant prior to service of a summons, in circumstances where the statutory pre-conditions have been met. The Court must not issue a warrant to arrest in the first instance unless satisfied by sworn evidence that it is probable that the accused will not answer a summons, has absconded, is likely to abscond or is avoiding service of a summons that has been issued (emphasis added). The language `in the first instance’ suggests that the Prosecution must attempt to engage with the summons procedure first, and only where the pre-conditions of section 12(5) exist, apply for a warrant. In my view, there is a clear statutory intent to provide to the Prosecution with a method to compel the attendance of the accused, where any of the pre-conditions of section 12(5) have been met.
60.The fact that the Charge-Sheet and Warrant to Arrest combines the charge and the warrant, two entirely separate processes, does not mean that the charge is brought again. This form is the expression of the warrant procedure referred to in section 12. The charge, identical in content, was brought within the statutory period, and has merely been restated on the form. In circumstances where it could not be known when an Accused will be located and brought to Court, the charge remains live and the warrant outstanding until he or she is apprehended and brought before the Court. In conceptual terms, the “Charge-Sheet and Warrant to Arrest” procedure is the vehicle to carry the charge forward, it is not the process which founds the jurisdiction of the Court. The Defence submission about the construction of sections 6 and 12 referred to in paragraph 36 above, that each time a Charge-Sheet and Warrant to Arrest is applied for amounts to the initiation of a new criminal proceeding for the purposes of section 6, is a conflation of the two distinct processes. I do not agree that the text of the relevant legislative provisions supports this interpretation.
61.The interpretation of these provisions in the manner contended for by the Defence would give rise to an outcome that an Accused may avoid service beyond the statutory limitation period, and in doing so defeat the prosecution of his offence. Sinclair’s case was appealed. The Court of Appeal in Brereton v Sinclair[19] held that the decision was not attended with sufficient doubt to warrant it being reconsidered on appeal notwithstanding that it raised important legal issues. The Court of Appeal held further that no substantial injustice would result from the decision if it were to stand, at most there could be some procedural disadvantage to the informant in having to bring the charge of assault again at common law. As this crime is a statutory summary offence, this option is not available to the Prosecution.
[19] (2000) VSCA 211.
62.As stated above, the Defence rely on Di Tomaso’s case, to support their submissions. The Magistrate held that there was `no basis to conclude that the charge remains alive, and can accordingly be the basis upon which the time in which a criminal proceeding may be commenced can be enlarged.’ His Honour stated that to find otherwise would be `inconsistent with the procedures for extending return dates on an issued summons’, and although the summons had been extended once `the Informant did not apply to extend time after the time for attendance for the first mention had expired…nor was any alternative means of service explored.’ His Honour further stated that: `If the Informant is correct in her view that the accused had a history of consistently providing false address details to Police, the Informant could have taken a different course other than the one not open to her, to purportedly make legitimate something which was impermissible.’
63.In my view, the Informant, in not exploring other methods of service that were available to him has not acted outside the parameters of the CPA. The warrant procedure in section 12 is plainly intended by Parliament to be used by the Prosecution as a method of bringing accused persons before the Court where it is not possible to serve them with a summons. The fact that an informant does not explore other means of service available to him or her is not the same as failing to comply with the legislation. There has been no such failure in this case.
64.For all of these reasons, the Defence arguments as to the validity of the charge are dismissed. It is therefore not necessary for the Court to consider the second question (see paragraphs 4(b) and (d) above) as to the effect of any invalidity on the jurisdiction of the Court to hear and determine the charge.
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