Victoria Police v Dale

Case •

[2016] VMC 28

•

1 APRIL 2016

IN THE MAGISTRATES’ COURT OF VICTORIA

AT SUNSHINE

CRIMINAL DIVISION

Case No. C13238618

MARK CADMAN Informant
v
MATTHEW DALE Accused
MAGISTRATE: MAGISTRATE MACCALLUM
WHERE HELD: SUNSHINE MAGISTRATES’ COURT
DATES OF HEARING: 20 OCTOBER 2015; 12 FEBRUARY 2016
DATE OF DECISION: 1 APRIL 2016
CASE MAY BE CITED AS: VICTORIA POLICE V DALE
MEDIUM NEUTRAL CITATION: [2016] VMC028

REASONS FOR DECISION

APPEARANCES:

 Counsel Solicitors
For the Prosecution LSC ANDREW DOBSON

SUNSHINE PROSECUTIONS UNIT
For the Accused S. HARDY N/A

HER HONOUR:

The Charges

  1. Matthew Dale, the Accused, is charged with the following charges.
  1. Charge one is that the Accused at Toolern Vale on 11 August 2011 drove a motor vehicle on a highway, Melton-Gisborne Road, carelessly, contrary to section 65 of the Road Safety Act 1986.
  1. Charge two is that the Accused at Toolern Vale on 11 August 2011 drove a motor vehicle while more than the prescribed concentration of drugs was present in his blood, contrary to section 49(1)(ba) of the Road Safety Act 1986.
  1. Charge three is that the Accused at Toolern Vale on 11 August 2011, being the driver of a vehicle on a road, Melton-Gisborne Road, failed to drive to the left of the dividing line, contrary to rule 132(2) of the Road Safety Road Rules 2009.
  1. Charge four is that the Accused at Toolern Vale on 11 August 2011 used a vehicle on a highway, Melton-Gisborne Road that was not in a safe and roadworthy condition contrary to regulation 259(1) of the Road Safety (Vehicles) Regulations 2009.
  1. The charges are all summary offences. Mr Hardy, Counsel for the Accused, submits that the Court has no jurisdiction to hear this proceeding. It is submitted by Defence that the Informant had until 24 September 2012 to apply for an extension of the return date in order to effect service within 14 days’ notice of the return date. No application for an extension of the return date was made and that the Charge-sheet and Warrant to Arrest issued on 17 September 2012 is a fresh proceeding that has been brought out of time and therefore the charges must be struck out. If Counsel for the Accused is correct in his submission, this Court will have no power to hear and determine the charges, and the proceeding must be dismissed. Counsel for the Accused did not submit that the charges themselves are defective. His submission is that the proceeding commenced at Bacchus Marsh on 29 June 2012 lapsed on 24 August 2012 when the summons was not served and no step was taken by the Prosecution to extend that proceeding within the time allowed by the legislation.

Question for determination and overview of findings

  1. The question for determination before the Court is this: is the criminal proceeding commenced by the Charge-sheet and Summons filed with the Bacchus Marsh Magistrates’ Court on 29 June 2012 invalid by virtue of the Prosecution’s failure to extend it pursuant to section 19 of the Criminal Procedure Act 2009?
  1. For the reasons I have set out below, I find that the proceeding is invalidated by the failure of the Prosecution to take this step, and therefore this Court does not have the power to hear and determine the charges. The charges are therefore dismissed.
  1. I find also that because of the failure by the Prosecution to extend the Charge-sheet and Summons issued at the Bacchus Marsh Magistrates’ Court within the relevant statutory time frames, the Charge-sheet and Warrant subsequently issued by the Sunshine Magistrates’ Court must be struck out as it was issued out of time. Those charges are therefore also dismissed.

Relevant legislative provisions

  1. The relevant provisions of the Criminal Procedure Act are set out below.
  1. Part 2.1 of the Act 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.

  1. Part 2.2 of the Act 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 as follows:

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.     

  1. No issue is taken by the Accused as to compliance with Schedule 1 of the Act.
  1. Section 7 of the Act sets the time limits for the filing of a criminal hearing. 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.

15.Part 2.3 of the Act, sets out the procedure for notifying accused of court appearance. It provides as follows.

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.

  1. Section 13 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.

  1. Section 15 of the Act sets out the contents of summons to answer a charge. It provides:

15       Contents of summons

(1)A summons to answer to a charge must direct the accused to appear at the venue of the Magistrates' Court referred to in section 11 on a specified date and at a specified time to answer the charge.

(2)A summons to answer to a charge for an indictable offence that is to be served on a corporate accused must state that, if the accused does not appear in answer to the summons, the Magistrates' Court may proceed—

(a)in the case of an indictable offence that may be heard and determined summarily, to hear and determine the charge in the absence of the accused in accordance with Division 10 of Part 3.3; or

(b)in any case, to conduct a committal proceeding in the absence of the accused in accordance with Chapter 4.

Notes

1See sections 80, 81 and 82 for consequences of failing to appear in answer to a summons.

2Section 28(1) sets out the indictable offences that may be heard and determined summarily.

  1. Section 16 of the Act 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.

  1. Section 17 provides for the manner of service on an accused:

17Summons for summary offence may be served by ordinary service

(1)A summons to answer to a charge for a summary offence (other than a traffic camera offence) must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.

Note

Section 394 provides for ordinary service.

(2)In considering whether to effect service of a summons by ordinary service, an informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including—

(a)the nature and gravity of the alleged offence;

(b)whether the accused has previously been found guilty or convicted of any similar offence;

(c)the period of time that has elapsed since the accused's address for service was ascertained.

(3)If a summons is served in accordance with section 394(1)(a), evidence of service must state—

(a)how the informant ascertained the address to which the summons was posted; and

(b)the time and place of posting; and

(c)whether the informant considered the matters referred to in subsection (2) before determining to effect service by post.

  1. Section 19 of the Act 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.

The history of this proceeding

  1. The procedural history of this matter is as follows. As stated above, the offences are alleged to have occurred on 11 August 2011.
  1. The Charge-sheet and Summons was signed by the Informant on 5 August 2012. It had been issued by the Bacchus Marsh Court on 29 June 2012. The Charge-sheet and Summons lists the four charges set out above. The Charge-sheet and Summons was issued by a Registrar, listing the case for hearing on 24 August 2012. The method of filing is specified to be by mail. The Informant responsible for filing the Charge-sheet and Summons is Leading Senior Constable Mark Cadman, hereafter referred to as `the Informant’.
  1. The proceeding was last listed for final hearing on 20 October 2015.  There have been multiple previous adjournments of the hearing for reasons that have no relevance to the current challenge by the Accused to the validity of the proceeding. The validity of the proceeding was raised by Counsel for the Accused as a preliminary matter prior to the commencement of the final hearing on 20 October 2015.
  1. At the hearing, the Informant gave evidence that following the initiation of the proceeding on 29 June 2012 at Bacchus Marsh, the Accused was unable to be served. The Informant said he attended the accident scene giving rise to the charges, which was a two vehicle collision involving the vehicle of the Accused. Following the completion of his investigation, he attended at the home address of the Accused on numerous occasions for the purpose of serving the Charge-sheet and Summons.
  1. According to section 16 of the Act, the Informant had up until 14 days prior to the first return date on 24 August 2012 to serve the Charge- Sheet and Summons, namely by 10 August 2012.
  1. The Charge-Sheet and summons were never served on the Accused. The Informant said that when he attended the Accused’s premises for the purposes of service, he left business cards with his contact details. No one answered the door and the Accused never returned his calls. The Informant said that the Accused’s usual place of residence is at 5 Dominic Parade, Melton which he ascertained from the Accused’s current licence and from enquiries made of staff at the Transport Accident Commission who told him that they were sending mail to the Accused at this address. The Informant said that he believed that the Accused was avoiding service.
  1. The Informant said that he was aware that the Charge-sheet and Summons needed to be served on the Accused within the statutory time limit. The Informant said that he applied to the Court, pursuant to section 19 of the Act for an extension of time within which to serve the charge sheet and summons on the Accused. The Informant was not sure on which date he requested the extension, but said that the extension was granted. As provided for in section 19(1) of the Criminal Procedure Act, where an informant has not served a summons to answer 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 either before the return date or within 28 days after the return date. Therefore, the Informant needed to make application before 21 September 2012 to the Court to extend the summons.
  1. The Informant said that following the successful application for an extension, he attended the Sunshine Magistrates’ Court to obtain a warrant to arrest the Accused, so that he could be served when he was apprehended.
  1. The Charge-sheet and Warrant to Arrest was signed by the Informant on 17 September 2012 and issued by the Sunshine Magistrates’ Court on 24 September 2012. This is more than 12 months after the date upon which the offences are alleged to have been committed. The Charge-sheet and Warrant to Arrest lists the same four charges listed in the original Charge-sheet and Summons. Further, the Charge-sheet and Summons has a hand written note on it stating that “Charge & warrant issued 24/9/12”. This is a manual notation which has the intention of linking the Charge-sheet and Warrant to Arrest with the Charge-sheet and Summons, however it is not known who has made that notation (and nothing turns on it.)
  1. The Informant told the Court that he was notified by email that the warrant had been executed. In this respect, the Charge-sheet and Warrant to Arrest on the Court file (‘Execution Copy’) is stamped that the warrant was executed and returned by M. Vetter at the St. Kilda Police station on 13 November 2012. That stamp also states that the Accused admitted his identity. The Court file indicates further that the Accused was granted bail on his own undertaking on 13 November 2012.
  1. The Informant said he had no choice but to pursue this course of action, as he believed the Accused was avoiding police and was inside the house each time he attended to attempt to serve him with the Charge-sheet and Summons. He said further that he did not serve the Charge-sheet and Summons by ordinary post because his supervisor had specifically requested that personal service be effected.

The submissions of the parties

  1. The parties were ordered to provide written submissions addressing the following questions.
    1. Is the proceeding commenced by Charge-sheet and Warrant on the 17th of September 2012 a fresh proceeding, or an extension of the proceeding initiated at Bacchus Marsh Magistrates’ Court on the 5th of August 2012?
    2. If the Court determines that the proceeding commenced by Charge-sheet and Warrant on the 17th of September 2012 is a fresh proceeding, is it statute barred pursuant to section 7 of the Criminal Procedure Act 2009?
    3. If the Court determines that the proceeding commenced by Charge-sheet and Warrant on the 17th of September 2012 is a fresh proceeding, and has been initiated out of time, what power does the Court have to give leave for the proceeding to be heard in circumstances where the 12 month limitation period has run?
    4. Liberty to apply.
  1. The Prosecution submissions are reproduced in Attachment A to these reasons.
  1. The submissions prepared on behalf of the Accused are reproduced in Attachment B to these reasons.
  1. The Prosecution submission initially was that the charges referred to in the Charge-sheet and Summons and the Charge-sheet and Warrant to Arrest are the same charges, and there has always only been one proceeding which was commenced on 29 June 2012 at Bacchus Marsh Magistrates’ Court. It was submitted in oral submissions that the Charge-sheet and Warrant to Arrest was an extension of the proceeding initiated at the Bacchus Marsh Magistrates’ Court on 29 June 2012. The Prosecution also refers to other powers in the Act to adjourn or abridge matters, for example the power to adjourn a proceeding pursuant to section 331, but in my view these provisions do not address the current issue.
  1. The Accused submits that upon the failure by the Prosecution to serve the Charge-sheet and Summons upon him, the 12 month time period for the bringing of summary proceedings lapsed, and the proceeding is statute barred. The Charge-sheet and Warrant to Arrest that were executed on the Accused is a fresh proceeding, and as it is out of time, the Court has no power to hear and determine the matter and the charges should be dismissed.
  1. The Defence submits that the Informant never applied to the Court for an extension of the Charge-sheet and Summons. It was submitted that if that step was taken it would reveal itself in the paper work, namely the court documents. The Defence further submits that the court documents do not evidence that the Court granted an extension of the application, as they would usually be stamped with a notation from the registry stating the extension date of the summons.
  1. At the further hearing of this matter on 12 February 2016, the Prosecution conceded that there is no evidence before the Court that the Informant extended the Charge-sheet and Summons, and it was submitted that the Informant may have been mistaken about his evidence.
  1. Given the concession made by the Prosecution and the absence of any notation on the Court documents that the Charge-sheet and Summons was extended, the Court cannot be satisfied on the balance of probabilities[1] that the Informant extended the Charge-sheet and Summons within the time required by the legislation.
    1. The Court of Appeal in Brereton v Sinclair [2000] VSCA 211 confirmed that the relevant standard of proof to be applied by the Court in determining proof of jurisdiction is the balance of probabilities (at paragraph 28).
  1. The next question is what is the effect of the Prosecution failure to extend the Charge-Sheet and summons on the validity of the proceeding? The Defence rely on the authority in Sinclair v Magistrates’ Court at Ringwood [1998] VSC 170, in which the Supreme Court held that a prosecution could not proceed in circumstances where the Magistrate could not be satisfied that the return date for the summons had been properly extended, and held that the summons had lapsed. In that case, the informant was unable to satisfy the court that the return date had been validly extended pursuant to section 33(2) of the Magistrates’ Court Act 1989.
  1. The Prosecutor informed the Court that he had not read Sinclair’s case and was ordered to provide further written submissions in response to the Defence submission by 26 February 2016. The proceeding was adjourned to 1 April 2016 for decision.
  1. On 26 February 2016, the Prosecution filed further submissions conceding the invalidity of the Charge-sheet and Warrant issued by the Sunshine Magistrates’ Court on 24 September 2012. These submissions are reproduced in Attachment C to these reasons. In summary they state that:

Prosecution concede that the charge and warrant issued at Sunshine were in fact issued outside the statutory provisions. Whilst they are exact in form as that contained on the original summons, they are separate entities. Whilst the accused is on bail in relation to the subsequent warrant, that warrant and the subsequent fail to appear on bail charges ought to be dismissed upon HH ruling.

  1. The Prosecution submits nevertheless that the Court may hear the original charges issued at the Bacchus Marsh Magistrates’ Court as these charges were brought pursuant to the Criminal Procedure Act, as opposed to the Magistrates Court Act 1989, which governed the court’s decision in Sinclair’s case. It is submitted that the original charges were issued within the statutory period as that charge-sheet was signed within 12 months from the date of the alleged offences. The Prosecution submit that these charges have not been dealt with and are still alive. It is submitted that Sinclair’s case is not binding on this Court as it was decided prior to the enactment of the Criminal Procedure Act. For the reasons set out below, I disagree with the Prosecution.

Findings

  1. I have considered all of the evidence before the Court, the submissions of the parties, the relevant sections of the Criminal Procedure Act, the Magistrates’ Court Act and the Magistrates’ Court Criminal Procedure Rules 2009, the second reading speech to the Criminal Procedure Bill which introduced the Act in the Legislative Assembly (4, December 2008), and the Criminal Procedure Act 2009 `Legislative Guide’ published by the Department of Justice.
  1. I have reviewed Sinclair’s case and various Supreme Court authorities both before and after that decision that deal with the legal effect of a failure by the Prosecution to extend a summons within the time limits provided by the legislation.

Sinclair’s case

  1. In Sinclair’s case, the Informant gave evidence that he attended the Registry to extend the summons, but could not remember when. The Supreme Court found that there was no satisfactory evidence that the informant had extended the summons. 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 and ordered that the Magistrate be restrained from further hearing the summons.
  2.  The Court of Appeal in Brereton v Sinclair (2000) VSCA 211 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 (paragraph 31).
  1. In Sinclair’s case 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” (paragraph 12) 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” (paragraph 12).  
  1. Her Honour states that the whole procedural scheme enshrined in the relevant division of the Magistrates’ Court Act “is to ensure that proceedings are commenced in a precise and formal way and that the defendant to a summons has reasonable notice of the return date of the mention hearing specified in the summons” (paragraph 12). A full extract of the relevant portion from Her Honour’s reasons follows:

[12] The principle to be extracted from each of these cases is 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. S33 and s34 of the Magistrates' Court Act are interrelated in that s34 provides that every summons to answer a charge must be served at least 14 days before the mention date and must be served on the defendant by defined means. It is this provision that Hayne J in Nitz considered to be mandatory and must be strictly complied with. S26 of the Act sets out the way in which a criminal proceeding is commenced and provides in subs(4) that a proceeding for a summary offence must be commenced not later than 12 months after the date on which the offence is alleged to have been committed except where otherwise provided by or under any other Act. The latter is the equivalent provision of s165 of the previous Magistrates' (Summary Proceedings) Act considered by Nathan J in Kerr. Similarly, the learned judge held that the provision must be strictly complied with. The authorities and the circumstances of this matter lead me to conclude that there can be no certainty that the requirements of s33 were strictly complied with by the informant in the course of attempting to extend the time of the summons. The requirements of s33 are couched in mandatory terms. The whole procedural scheme enshrined in Division 2 of Pt4 of the Act is to ensure that proceedings are commenced in a precise and formal way and that the defendant to a summons has reasonable notice of the return date of the mention hearing specified in the summons. Furthermore, s33 of the Act is couched in terms so that the life of a summons can be extended within certain time constraints. 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. The entire circumstances surrounding the issue and extension of time of this summons and the previous summons are far from satisfactory.

  1. In Smith v Chalmers, Ashley J upon review of Sinclair’s case and Nitz v Evans (1993) 19 MVR 55 (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” (paragraph 23, footnotes omitted).
  1. See also Dawson v Magistrates’ Court of Victoria [2003] VSC 336 at paragraph 9 in which Warren J affirmed the position her Honour had taken in Sinclair’s case.

Comparison of sections 33 and 34 of the Magistrates’ Court Act and the Criminal Procedure Act provisions

  1. Sections 33 and 34 of Magistrates Court Act 1989 previously set out the procedure to be followed in relation to charges and summons concerning criminal matters. At the time that Sinclair’s case was decided, those provisions stated:

33. Summons to answer to a charge

(1) A summons to answer to a charge must direct the defendant to attend at the proper venue on a certain date and at a certain time to answer the charge.

(2) On the application of the informant at any time before the service of a summons to answer to a charge, the mention date specified in the summons may be extended without cause -

(a) before the mention date; or

(b) within one month after the mention date -

by the appropriate registrar on one occasion and thereafter may be extended -

(c) before the current mention date; or

(d) within one month after the current mention date -

by the appropriate registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the summons."

  1. Section 34(1) of the Act provided:

34. Service of summons to answer to a charge

(1) Every summons to answer to a charge, except where otherwise expressly enacted -

(a) must be served at least 14 days before the mention date; and

(b) must be served on the defendant by -

(i) delivering a true copy of the summons to the defendant personally; or

(ii) leaving a true copy of the summons for the defendant at the defendant's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

54.Those provisions have been repealed and are now replaced by sections 15 and 16 of the Criminal Procedure Act, which are set out above. The Criminal Procedure Legislative Guide 2009 states that section 15 of the Criminal Procedure Act `is based on section 33(1) and (1A) of the Magistrates’ Court Act and that section 16(1) is `based on parts of section 34 of the Magistrates’ Court Act. However the section has been modified to reflect the new service regime in Part 8.3 of the Act’ (page 51).

55.The language of these new provisions is very similar to sections 33 and 34 of the Magistrates’ Court Act. Section 15(1) of the Act is cast in mandatory terms, by stating that a summons to answer a charge must direct the Accused to appear at the relevant venue of the court on a specified date and time to answer the charge. Sub-section 33(2) is now contained in section 19 of the Act and is to a similar effect. Section 34 is now contained in section 16 of the Act, and is cast in mandatory terms, stating that every summons to answer a charge must be served personally in accordance with section 391 at least 14 days before the return date.

Decisions following Sinclair’s case

56.The Prosecution has submitted broadly that this Court is not bound by Sinclair’s case, but did not refer the Court to any relevant authorities.

57.Sinclair’s case has been considered in subsequent Supreme Court decisions which have held that it is a matter of statutory construction as to whether it was Parliament’s intention that a procedural step not taken will fundamentally affect the jurisdiction of the court to hear the charge.

58.In Salt v Godenzi [2010] VSC 259 the question before the Court was whether a summons which did not direct a defendant to appear at a proper venue was invalid. His Honour Beach J held:

15 It can be accepted that s 33(1) makes it mandatory for a summons to direct a defendant to attend at the proper venue[10] on a certain date and at a certain time.[11] However, that is far from the end of the analysis. The starting point is the approach described in Project Blue Sky& Ors v Australian Broadcasting Authority,[12] where McHugh, Gummow, Kirby and Hayne JJ said:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”[13]

16 Their Honours went on to say:

“... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors, if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”[14] (footnotes omitted).

59.Justice Beach noted (see paragraph 17, and footnote 16) that some of the authorities relied on by the plaintiff had either pre-dated Project Blue Sky or were decided without reference to it. His Honour further noted that Project Blue Sky was not cited to the Court in Sinclair’s case. His Honour was also clear in his comments that although the Court of Appeal in Brereton’s case had declined leave, that did not result in Sinclair’s case acquiring the precedential status of that court.

’17. It should immediately be noted that some of the authorities relied upon by the plaintiff either predate Project Blue Sky[15] or were decided without reference to Project Blue Sky. As a result, care needs to be taken in relation to the application and consideration of those authorities in the present case.[16]

……

20 Whilst s 33 of the Magistrates’ Court Act deals with requirements as to the content of a summons, s 34 deals with the requirements as to service. Sections 33 and 34 have been the subject of a number of decisions of this Court: see for example Sinclair v Magistrates’ Court of Victoria at Ringwood& Anor,[17] Brereton v Sinclair,[18] Sammassimo v Franich,[19] Gahan v Frahm[20] and Guss v The Magistrates’ Court of Victoria & Anor.[21] The effect of these decisions was summarised by Cavanough J in Murdoch v Smith.[22] In that case, his Honour said:[23]

“Mr Hardy points to four cases, including Sinclair v Magistrates’ Court at Ringwood, in which this Court has held that the provisions of ss 33 and 34 of the Act impose mandatory requirements, non-compliance with which may result in orders prohibiting the continuation of proceedings or quashing convictions. On the other hand, in the two cases cited by Ms Judd, Sammassimo v Franich and Gahan v Frahm, non-compliance with aspects of those provisions was held not to be fatal to the relevant prosecutions. It is true that in Brereton v Sinclair, the Court of Appeal held that the decision in Sinclair was not attended with sufficient doubt to warrant the grant of leave to appeal. However, as the Court of Appeal itself noted in that case, this does not mean that the Court of Appeal affirmed the decision, nor that the decision acquired the precedential status of that Court. I note that neither Sammassimo v Franich nor Gahan v Frahm was cited by the Court of Appeal in Brereton v Sinclair. In Guss v The Magistrates’ Court at Victoria, Osborn J held, obiter, that ‘short service would in my view result in no more than an irregularity for the reasons stated by O’Bryan J in the case of Sammassimo v Franich’.”[24]

21 In Guss v The Magistrates’ Court at Victoria,[25] Osborn J stated that it was apparent that almost 100 years ago, this Court recognised that the underlying question raised by the application of provisions such as s 34 of the Magistrates’ Court Act is “whether an accused person received procedural fairness in accordance with the intention of the legislature”.[26] There is no suggestion that the plaintiff did not receive procedural fairness in this case.”(emphasis added, footnotes omitted)

60.Whereas Sinclair’s case is similar factually to the present case, it is based on a prior legislative regime which the Prosecution submits renders it inapplicable to the current facts. Further, Project Blue Sky was not argued before the Supreme Court on that occasion. On the other hand, Project Blue Sky is High Court authority, and has been applied by the Supreme Court more recently in statutory construction of the Magistrates’ Court Act, but in relation to different factual situations. I consider that I am bound to follow the line of authority as set out in Sinclair’s case even though it was determined by the Supreme Court under the previous legislative regime. Further, for the reasons set out below, I am of the view that Salt v Godenzi can be distinguished from the present case and that applying the analysis in Project Blue Sky to the current facts results in an outcome that is consistent with the approach taken by the Supreme Court in Sinclair’s case.

Project Blue Sky

61.Following the authority in Project Blue Sky[2], the appropriate inquiry is whether there can be discerned a legislative purpose to invalidate the jurisdiction of this Court upon failure by the Prosecution to comply with section 19 of the Criminal Procedure Act. The existence of that purpose is to be ascertained by reference to:

[2] (1998) 194 CLR 355 at [69]-[78].

    1. the language of the statute;
    2. its subject matter and objects;
    3. and the consequences for the parties of holding void every act done in breach of the condition.

The language of the statute, subject matter and objects

  1. The High Court of Australia in Project Blue Sky established that 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. 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, that is, `by reference to the language of the instrument viewed as a whole’.[3]

    [3] Ibid, p. 381, [69]

63.The Criminal Procedure Act itself is silent on the issue. Section 19 itself does not set any limits, conditions or qualifications on the jurisdiction of the court to hear and determine a charge. The Act does not expressly provide that a summons lapses upon failure to serve or extend it. This is unlike the situation under the Magistrates’ Court General Civil Procedure Rules 2010 where the rule 5.12 specifically provides that a complaint, summons or subpoena is valid for service for one year after the day it is filed. Rule 5.12(2) provides that if a complaint or summons has not been served on the defendant, or a subpoena has not been served on a witness, the Court may from time to time extend the validity of the complaint, summons or subpoena for such period as the Court directs, provided that it is not more than one year from that day.

  1. The purpose of Part 2.1 of the Criminal Procedure Act, is to set out the ways in which criminal proceedings may be commenced. The purpose of Part 2.2 of the Act is to set out the preliminary steps in commencing the criminal proceeding and listing the matter. The purpose of Part 2.3 is to specify how an accused person must be notified of their court appearance.
  1. In my view, the purpose of these parts when read together is twofold:
    1. To direct persons to answer charges against them, or to compel their attendance if required; and
    2. To afford an accused person procedural fairness, that is, an awareness at the earliest opportunity the nature of the charges that he or she faces.
  1. Section 6(1)(a) of the Act, contained in Part 2.2, provides that criminal proceeding is commenced by filing a charge-sheet containing a charge with the registrar of the Court. The function of filing the charge is to found the jurisdiction of the Court. The function of the summons, as set out in section 12(1) of the Act contained in Part 2.3, is to direct an accused to answer the charge or to compel his or her attendance by warrant.

67.The purpose section 19 of the Act is to permit the Court to extend the return date of the summons where the Informant has been unable to serve it, once without cause, and a second time where the registrar is satisfied by sworn evidence, whether oral or by affidavit, that reasonable efforts have been made to serve the summons.

68.Section 19 is intended to work in tandem with the service provision in section 16 which requires personal service of the summons at least 14 days before the return date. As stated above by Obsorn J in Guss’ case (cited in Salt v Godenzi, see paragraph 61 above), the Supreme Court has previously held that short service of a summons may amount only to a procedural irregularity. The primary consideration is whether an Accused has been afforded procedural fairness. I note also the comments of his Honour Kaye J in Onus v Sealey (2004) 149 A Crim R 277 (paragraph 25):

Thus the Magistrates' Court Act does not contain any express requirement for the actual service of a charge. It is sufficient the charge be brought to the notice of the accused person. Further, the authorities suggest that statutory provisions such as s.34 of the Act, which require the service of a summons more than a prescribed time before its return, do not exclude the operation of the principle that, however a person has been brought before a court, that person is liable to answer any charge or information then and there brought against him; see R v Hughes[4]; Kingston Tyre Agency Pty Ltd v Blackmore[5]. Of course the operation of that principle is subject to the right of the accused person to ask for and obtain an adjournment if the accused is taken by surprise; see for example McManamny v Fleming[6].”(footnotes omitted)

69.I note also the statement of Cavanough J in Guss v Commissioner of Taxation [2015] VSC 259 (at paragraph 38) that:

Generally speaking, illegality attaching to the process by which the accused comes before the Court does not have any effect on the jurisdiction of the Court to deal with the matter. This principle is well exemplified in the extradition cases. In Truong v R, Kirby J observed that whatever the prerequisites to the exercise of the power to stay proceedings for abuse of process, it is clearly established by the cases that it is not available to cure some “venial irregularity”. His Honour continued (omitting footnotes):

‘Thus, where a "technical” breach of extradition law and procedure is later found to have occurred, in circumstances where the relevant officials were determined to have held the affirmative belief that they were acting appropriately, a stay has been refused, rightly in my view. At the very least, therefore, the departure complained of must be very serious, such that in the circumstances, for the court to continue with the proceedings would offend the very integrity and functions of the court, as such’ (footnotes omitted).

70.It is my view, however, that the failure of the Prosecution to extend a summons within the time provided for by the legislation is not a mere `technical breach’ of the legislation. Salt v Godenzi concerned circumstances in which there was a mere slip in the form of a document, being the failure to enter the correct venue of the relevant court. The present case concerns the failure by the Prosecution to precisely comply with the process for the laying charges and directing an accused person as to how he or she must answer those charges. In Salt v Godenzi, his Honour Beach J was careful to distinguish the failure to nominate the correct venue from the circumstances in Sinclair’s case where the Supreme Court found that the entire circumstances surrounding the issue and extension of the summons to be far from satisfactory (paragraph 22).

The subject matter and purpose of the legislation

  1. This analysis is supported by other provisions in the Act which make it clear that it was not the intention of Parliament that criminal proceedings be rendered invalid due to mere technical defects in process. Failure to extend a summons within the required time frames is not included amongst those provisions which are clearly designed to prevent the failure of prosecutions on mere technical grounds.
  1. For example, section 11(3) provides that a criminal proceeding in the Magistrates’ Court is not invalid only because it was conducted at a venue of the court other than the venue referred to in subsection (1) or nominated under subsection (2). Section 9(1) provides that a charge-sheet is not invalid by reason only of a failure to comply with Schedule 1 and (in subsection (2)) by reason of omissions to state the time at which offence was committed (unless time is an essential element of the offence) or incorrectly stating the time at which the offence was committed, or stating the offence to have been committed on an impossible day or a day that never happened.
  1. By contrast, the present matter is not concerned with mere defects with the charges or the form of the summons. The overriding purpose of section 19 and surrounding provisions is to ensure the timely initiation of proceedings, and procedural fairness to an Accused. The comments made by the Supreme Court in Sinclair’s case remain directly applicable to the issue at hand. It is appropriate that there be strict adherence by the Prosecution to the process of obtaining an extension of a summons, with the effect that if not complied with by the Prosecution within the stipulated time frames, the summons will lapse and the proceedings will be rendered invalid.

The consequences for the parties

  1. Finally, it is necessary to address the consequences for the parties of the chosen construction. Does this construction enable persons who are charged with summary offences to avoid prosecution by evading service until the relevant time limits have expired? The Court of Appeal concluded in Brereton that no substantial injustice would result from the decision if it were to stand because the informant had to option to bring the change anew at common law, that offence being an indictable offence triable summarily. In the case of summary offences, there is no such alternative open to the Prosecution.
  1. A review of the other provisions of the legislation draws me away from this conclusion, as the legislation provides other mechanisms to avoid this outcome. First, if the Prosecution cannot effect service of a summons upon the accused, it may seek an extension of time without cause pursuant to section 19. If it is still unable to serve the accused, it may again seek an extension of time upon providing sworn evidence that reasonable attempts at service have been made, pursuant to section 19.
  1. Alternatively, the Prosecution may within 12 months of the alleged offence being committed, where it is satisfied that the Accused is evading service, seek that the Court issue a Charge-sheet and Warrant, pursuant to sections 12 and 13 of the Act.
  1. The Prosecution may have elected to effect service in this case by ordinary post pursuant to sections 16 and 17, and if the accused failed to appear, apply for a warrant to arrest upon the accused’s non-appearance.
  1. For these reasons, I conclude that the proceeding in this Court lapsed upon the failure by the Informant to extend the Charge-Sheet and Summons issued by the Bacchus Marsh Court within the relevant time frames. The Court has no jurisdiction to hear the charges, which are dismissed.
  1. The Charge-Sheet and Warrant issued at the Sunshine Magistrates’ Court is also struck out as it has been issued out of time.
  1. I will now hear the parties on costs.

MAGISTRATE MACCALLUM

ATTACHMENT A – PROSECUTION SUBMISSIONS FILED 27 NOVEMBER 2016

Prosecution response to order of the Sunshine Magistrates Court by HH MACCALLUM dated 20 October 2015.    Submission to be filed by 27th November 2015.

Background

The issue before the court relates to the prosecution of Matthew DALE where the informant is LSC Mark CADMAN of Melton HWP.  

The allegations concerning the charges against Matthew DALE occurred on the 11/08/2011.  The charges are all summary in nature.

A charge and summons was initiated at the Bacchus Marsh MC on 29/06/12 and the charge was filed and the date for the hearing was set for the 24/08/12.  The informant could not locate the accused to serve that summons personally.

A charge and warrant was issued by the Sunshine MC on the 17/09/12.  It was subsequently filed and when the accused was located, the warrant was executed and the accused was bailed to appear at the Sunshine MC.

Issue

HH has asked for written responses to be made in regards to the following three points.

a.    Is the proceeding commenced by charge sheet and warrant on the 17th of September 2012 a fresh proceeding, or an extension of the proceeding initiated at the Bacchus March MC on the 5th of August 2012?

b.    If the Court determines that the proceeding commenced by charge sheet and warrant on the 17th of September is a fresh proceeding, is it statute barred pursuant to the section 7 of the Criminal Procedure Act 2008?

c.    If the Court determines that the proceeding commenced by charge sheet and warrant on the 17th of September 2012 is a fresh proceeding, and has been initiated out of time, what power does the Court have to give leave for the proceeding to be heard in circumstances where the 12 month limitation period has run?

Response a)

a.Is the proceeding commenced by charge sheet and warrant on the 17th of September 2012 a fresh proceeding, or an extension of the proceeding initiated at the Bacchus March MC on the 5th of August 2012

Pursuant to sect 5 of the CPA

5)        How a criminal proceeding is commenced

           A criminal proceeding is commenced by-

a)        filing or signing a charge-sheet in accordance with section 6.

Pursuant to sect 6 of the CPA,

1)        A criminal proceeding is commenced-

a)        By filing a charge sheet containing a charge with the register of the Magistrates Court.

The original charge was signed by the informant on the 05/06/12 and the summons was issued by the Bacchus Marsh MC on the 29/06/12. The first function of the charge sheet is to found jurisdiction, whereas a summons is no more than a mechanism to compel attendance of the accused at a court.

Pursuant to sect 10 of the CPA,

10        Listing of matter for mention hearing or filing hearing in the Magistrates Court,

1)        If a charge-sheet contains a charge for a summary offence, the proceeding must be listed for a mention hearing.

The original charge and summons when issued by the Bacchus March MC, listed the first mention hearing as the 24/08/2012.

The charge and summons issued at the Bacchus Marsh MC on 29/06/12 listed four charges. 

The charge and warrant was signed by the informant on the 17/09/12 and issued at the Sunshine MC on 24/09/12 and the four charges were exactly the same as for the charge and summons. 

Pursuant to sect 12 of the CPA

           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.

The original charge and summons was issued on the 29/06/12.   That is within the 12 months statute.    The court has the ability to hear that matter in its normal dealings.  The issue with this matter is that the original appearance date has passed as the summons could not be served.  In effect then the matter was not listed for hearing.

When the informant made the request for issue of a warrant to arrest, he listed the application by writing “The accused is avoiding interview and the service of the blood certificate and summons.  Summons date has now lapsed and no prospect of a further summons of being able to be served”.  Further the informant ticked the box for “The person is avoiding service of the summons.    The court issued this warrant based on those comments.

In the normal running of court hearings there are occasions when matters are not listed.  In the County Court where a trial occurs involving indictable offences coupled with summary offences, the County Court can remit the summary matters Sine Die.

The court also has occasions when matters need to be adjourned or abridged.  This can occur at the hearing date or alternatively at a non- hearing date.   

The power to adjourn proceeding is found at sect 331 of the CPA

331     Power to adjourn proceeding

(1)      A court may adjourn the hearing of a criminal proceeding before the court—

           (a)      to any time and place; and

           (b)      for any purpose; and

           (c)       on any terms as to costs or otherwise—

that it considers appropriate.

(2)      If at any time a court adjourns the hearing of a criminal proceeding, the court may—

           (a)      allow the accused to go at large; or

           (b)      remand the accused in custody; or

(c)       grant the accused bail or extend his or her bail.

Note

See section 333 of this Act and section 5A of the Bail Act 1977 where accused is undergoing a sentence of detention in a youth justice centre.

(3)      If a court has adjourned the hearing of a criminal proceeding to a particular time, it may order that the hearing be held or resumed before that time.

(4)      A court may only make an order under subsection (3)—

           (a)      with the consent of all the parties; or

           (b)      on the application of a party who has given reasonable notice of the application to the other parties.

(5)      If a court adjourns a criminal proceeding in which a jury has been sworn, whether or not the accused is present, the court may discharge the jury from giving a verdict and order a new trial.

(6)      If a court has adjourned the hearing of a criminal proceeding to a particular time and has remanded the accused in custody, the court may order that the accused be brought at any time before then—

           (a)      before the court; or

S. 331(6)(b) amended by No. 69/2009 s. 54(Sch. Pt 2 item 18.1).

(b) to another place specified in the order where facilities exist to enable the accused to appear before the court by audio visual link (within the meaning of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958)—

in order that the hearing may be held or continued.

(7)      The officer in charge of the prison or youth justice centre or other officer who has custody of the accused must obey an order under subsection (6).

The procedural direction of the court is for a party who wishes to adjourn or abridge a matter, to file written forms.   In the abridgement the form used is Form 15.   When a matter needs to be adjourned the procedure is via a Notice To Accused re Adjournment/Notice of Intention to Proceed.

In the case of a County Court remitted matter, the matter will be re-listed in the summary stream by  serving a Notice To Accused re Adjournment/Notice of Intention to Proceed.    The part of the form that is filled in is the Notice of Intention to Proceed. 

The informant for the matter of Matthew DALE has served a Notice To Accused re Adjournment/Notice of Intention to Proceed (VP 416) on the 04/11/2015 with the intention for the original charge and summons to be re-listed for the purpose of a hearing on the agreed special mention date of 12/02/16.

It is not conceded by the prosecution that the charge and warrant is a fresh proceeding.   The prosecution submit the change and warrant document consists of a copy of the charge sheet commenced within time on 29/06/12 and the warrant issued 24/09/12.

Response b)

b.        If the Court determines that the proceeding commenced by charge sheet and warrant on the 17th of September is a fresh proceeding, is it statute barred pursuant to the section 7 of the Criminal Procedure Act 2008?

Pursuant to sect 7 of the CPA,

  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 has given written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

    Prosecution concede that the charge and warrant was issued post the 12 month limit as stipulated by Sect 7.   Prosecution concede that the accused has not provided written contest.  

    Your honour is open to find that the Court is statute barred from hearing the proceeding,  however,  a charge sheet was commenced within time and will be still in existence and not affected by the order.

    Response c)

    c.        If the Court determines that the proceeding commenced by charge sheet and warrant on the 17th of September 2012 is a fresh proceeding, and has been initiated out of time, what power does the Court have to give leave for the proceeding to be heard in circumstances where the 12 month limitation period has run?

    The prosecution concede that if the court makes the above determination then the court has no power to give leave for the proceeding to be heard as per sect 7 (1)(b) of the CPA.

    Conclusion

    It is the prosecution submission that HH can give leave to hear the matter of Matthew DALE if the court is satisfied that the correct procedure has been applied to in listing the Charge and Summons dated 29/06/12.

    Submission prepared and filed by

    …………………………

    Andrew Dobson

    Leading Senior Constable 26708

    Sunshine Prosecutions Unit.

    9313 3334

    ATTACHMENT B – SUBMISSIONS ON BEHALF OF THE ACCUSED

    DEFENCE REPLY

    TO PROSECUTION OUTLINE ON JURISDICTION

    1.On 29 June 2012, pursuant to s. 6(1)(c) Criminal Procedure Act 2010 (“the Act”), the informant commenced a proceeding by filing a charge and summons at Bacchus Marsh Magistrates Court.

    2.Pursuant to s.12 of the Act, on the filing of the charge the informant applied to the court for the issue of the summons. Section 12(1) of the Act requires the application for a summons to be made on the filing of the charge. As an alternative to applying for a summons, the informant could have applied to the registrar for the issue of a warrant pursuant to s.12(2) of the Act, but he did not do so.

    3.Sections 12(1) and 12(4) of the Act make it clear that the registrar may issue either a summons or a warrant to arrest to compel attendance in the proceeding.

    4.The date of the alleged offences was 11 August 2011. A proceeding commenced upon the filing of the charge sheet on 29 June 2012, which is within the 12 month limitation period set by s.7 of the Act.

    5.The first return date on the summons was 24 August 2012. Pursuant to s.16 of the Act, the charge and summons had to be served on the accused at least 14 days prior to the first return date.

    6.The charge and summons was never served on the accused. No attempt was made to serve the charge and summons by posting it to the accused’s last known place of residence in accordance with s.394 of the Act.  The informant could have served the charge and summons by post and then applied for a bench warrant if the accused failed to appear at the first return date. Alternatively, the informant could have filed charges and applied for a warrant on 10 August 2012, which was both the last date for serving the summons and also the last date for commencing a summary proceeding against the accused.

    7.When service had not been effected by end of 10 August 2012, the informant could have applied for an extension of the return date in order to effect service with 14 days notice of the return date. Pursuant to s.19 of the Act, the informant had up until 21 September 2012 to apply for an extension of the return date. No application for an extension of the return date was made.

    8.On 17 September 2012 the informant attended at Sunshine Magistrates Court and commenced a fresh proceeding by filing charges pursuant to s.6 of the Act and applying for a warrant to arrest pursuant to s.12(1) and 12(5) of the Act. It is this proceeding that is before the court in case C13238618. Those charges were filed more than 12 months after the date of the alleged offences. The commencement of that proceeding was out of time and invalid. If the filing of the charges was invalid, then the issuing of the warrant of arrest was also invalid.

    9.The prosecutor suggests that the warrant issued on 17 September 2012 was issued in the Bacchus March proceeding, but it clearly was not. The only reason the warrant to arrest was issued at Sunshine Magistrates Court on 17 September 2012 was because a charge sheet and warrant was filed at Sunshine court on that date. Had the registrar looked more carefully at the documents she would have discovered that the charge was for a summary offence that was more than 12 months old and she should have refused to issue the warrant on that basis.  There was no reference to the Bacchus Marsh proceeding when the warrant was issued. If the proper course on 17 September 2012 was for the registrar to refuse to issue the warrant, the court should set aside the warrant on the basis that it was issued in error, or recall and cancel it pursuant to s.58 Magistrates Court Act.

    10.The prosecution submissions rely on the fact that the four charges filed at Sunshine are exactly the same as the four charges that were filed at Bacchus Marsh – as if that is a solution. Even if the charges are the same the informant has commenced a fresh proceeding by filing charges at Sunshine on 17 September 2012. Even if the charges are the same as in the earlier proceeding and the informant is the same as in the earlier proceeding, those facts are not a pre-conditions to issuing the warrant. The registrar who issued the warrant paid no regard at all to whether the charges filed at Sunshine where identical to those filed at Bacchus Marsh.  If they are the same it should be treated as nothing more than coincidental.

    11.The proceeding that had been commenced at Bacchus Marsh on 29 June 2012 lapsed on 24 August 2012 when no step had been taken to serve the summons and no step was taken to extend that proceeding within the time allowed. On 17 September 2012 the only option available to the informant was to apply for an extension of the return date in the Bacchus March proceedings.

    12.Section 6 of the Act states that the warrant can be applied for “on the filing of the charge sheet”. The Act does not state that the warrant can be applied for 3 months after filing the charge sheet. If parliament had intended to give the court power to issue a warrant of arrest at any time after a charge was filed then it could have easily and clearly said so. Rather, parliament has very clearly spelt out powers to issue warrants at s.12 and s.

    13.The power to adjourn in s.331 of the Act is irrelevant because the Bacchus Marsh case was never listed on 24 August 2012 and no application for an adjournment was made by the prosecution. It is not possible to avoid the requirements of s.19 of the Act by serving a notice of intention to proceed which is nothing more than a letter requesting the accused to come to court. A notice of intention to proceed with a case only makes sense when it is served in respect of a case that is already properly before the court. It is not a mechanism capable of bringing before the court a case that is not already properly before the court. The police notice of intention to proceed has no legislative foundation and is not capable of compelling an accused to attend court to answer a charge. Further, the notice states that the case was listed at court on 24 September 2012 when it was not listed at court on that date. Cases are not listed unless an affidavit of service is filed with the court.

    14.The case of Sinclair v. Magistrates Court of Victoria at Ringwood [1998] VSC 170 the Supreme Court held that a prosecution could not proceed in circumstances where the Magistrate could not be satisfied that the return date had been properly extended.

    15.The Bacchus Marsh proceeding was commenced by way of charge and summons, whereas the Sunshine proceeding was commenced (out of time) by way of charge and warrant. It is not correct that only one proceeding was commenced. Theoretically, an application for an extension of the return date in the Bacchus Marsh proceeding could have been made on 17 September 2012 on the same date that the warrant was issued, and later that week the accused could have been served with the charge and summons and required to appear in the Bacchus Marsh proceeding. At the same time the accused could have been arrested and bailed in respect of the Sunshine proceeding and required to appear at the hearing of those charges.  The two proceedings are quite distinct and it is not proper for the prosecution to claim that a warrant issued in one proceeding can be founded on charges filed in a different proceeding.

    16.Because the charge and warrant was issued out of time, this proceeding should be dismissed with costs. The informant can then make application to the Bacchus Marsh Magistrates Court to list the Bacchus Marsh proceeding if he believes it is capable of being listed. It is not appropriate for the informant to try to merge the Bacchus Marsh proceeding into this proceeding.

    Sean Hardy

    Counsel for the accused.

    5 February 2016


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Cases Citing This Decision

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Brereton v Sinclair [2000] VSCA 211
Sinclair v Magistrates' Court of Victoria at Ringwood [1998] VSC 170
Dawson v Magistrates' Court of Victoria [2003] VSC 336