Whyte v Di Tomaso

[2014] VMC 24

IN THE MAGISTRATES’ COURT  Case No: E11572687
OF VICTORIA
AT MELBOURNE   

CRIMINAL DIVISION

BETWEEN:

CONSTABLE SALLY WHYTE  INFORMANT

-and-

DIANA DI TOMASO   ACCUSED

MAGISTRATE:  F J HOLZER SCM
PLACE HEARD:  MELBOURNE
DATE OF HEARING:  29 OCTOBER 2014
DATE OF DECISION:  29 OCTOBER 2014
CASE MAY BE CITED AS:            WHYTE v DI TOMASO

REASONS FOR DECISION
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CATCHWORDS: Summary offences; Charge and Summons issued within time; not served; Charge and Warrant issued subsequently; s7 Criminal Procedure Act 2009; r11 Magistrates’ Court Criminal Procedure Rules 2009; whether new charge; whether charge re-enlivened; whether proceedings are statute-barred; whether charge should be dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Informant	Victoria Police
For the Accused	Victoria Legal Aid

HIS HONOUR:

Introduction and History:

The accused is charged of allegedly driving in excess of the prescribed concentration of alcohol, of unlicensed driving, and reversing a vehicle when unsafe at Southbank on 3 July 2011.

A Charge-Sheet and Summons was filed on 28 December 2011. A first mention date of 23 March 2012 was fixed.

The Summons was never served.

The Charge and Summons was extended on 13 March 2012, ostensibly on the basis that the accused had provided a false address for service. The date for attendance for first mention was extended to 24 May 2014

It is then said that a further false address for service was provided by the accused, which led on 27 July 2012 to the issue by the Informant of a Charge and Warrant to Arrest in respect to the same alleged offences.

The original Summons was never served. No further extension of time was sought, and an alternate mode of service was never sought.

The proceeding was first listed in Court on 14 May 2014 before His Honour Magistrate Lethbridge, who remanded the accused to appear at Melbourne Magistrates’ Court on 8 July 2014 and extended her bail to that date.

The accused in fact appeared before me on 8 July 2014, on which date Ms Gear raised with me a concern that the charge might be invalid. L/S/C Gunn rejected any such concern.

I agreed on that day to entertain written submissions on her concern, and for that purpose, remanded the accused to again appear before me on 2 September 2014 and further extended her bail.

Written submissions were filed and served on behalf of the accused dated 30 August 2014.

The accused appeared on 2 September 2014.

L/S/C Gunn informed me that the prosecution also wished to file written submissions in opposition to those of the accused, and might appeal any decision adverse to them, as there was said to be a lack of judicial authority on the point.

I accordingly gave directions for the filing and service of any submissions by the Prosecution by 20 October 2014, with any responding submissions by the accused by 23 October 2014, and listed a Special Mention to hear detailed argument on 29 October 2014.

I excused the accused and the Informant from further appearance on 29 October 2014.

The Prosecution filed and served written submissions, as referred to below; while the accused’s lawyers by email dated 23 October 2014 indicated that she would rely upon her original written submissions.

The issues:

The issue is firstly whether the prosecution is capable of proceeding on the charges against the accused in circumstances where the original Summons was never served and the statute of limitations had expired by 3 July 2012.

A second issue is whether the Charge and Warrant to Arrest constitutes a new charge, or whether it is a duplicate of the original charge.

The legal framework:

Pursuant to s12 of the Criminal Procedure Act 2009 (“the CPA”), a registrar of the Magistrates’ Court may only issue a warrant to arrest to compel the attendance of the accused on the filing of a charge sheet under s6. Pursuant to s12(1)(a), an application may also be made for the issue of a summons to answer to the charge directed to the accused.

Section 6(1)(a) of the CPA provides that a criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court. Section 6(3) sets out the requirements of the charge-sheet, while s15 sets out the requirements of the contents of a summons to answer to a charge.

Section 7 of the CPA prescribes the time limits for filing a charge-sheet. Section 7(1)(a) directs that 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. It is not in issue that the offences in this instance are of a summary nature, nor are either of the exceptions to this requirement relevant.

An amendment to a charge-sheet cannot be made if it has the effect of charging a new offence after the expiry of the period within which a proceeding for the offence may be commenced: s8(3) of the CPA.

Rule 11 of the Magistrates’ Court Criminal Procedure Rules 2009 sets out the prescribed forms for commencement of a criminal proceeding, and includes both Form 3 and Form 5.

Other relevant materials:

The Prosecution also relied upon an Affidavit of the Informant sworn 27 July 2012, which was created for the purpose of issuing a Charge and Warrant to Arrest.

I note that that Affidavit, on its face, purported to be relied upon in the first instance to compel the attendance of the accused pursuant to s28 of the Magistrates’ Court Act 1989 (“the MCA”). Paragraph 6 alleges that the accused could not be located for the purpose of serving a summons on her to commence proceedings for the offences set out in the Charge and Warrant to Arrest form, and the terms of paragraph 7 supports the principal purpose of the Charge and Warrant. The general foundation of that purpose was said to be that the accused was consistently providing false address details to Police, however I note that the Informant did not further extend the Charge and Summons beyond March 2012, nor was there any application to serve the process by substituted or alternate service.

It is further noted that s28 of the MCA specifically refers to the filing of a charge under s26 of the MCA, suggesting that the procedures are separate and are directed towards fundamentally different purposes.

Section 26(4) of the MCA is in substantially similar terms to s7(1)(a) of the CPA, precluding the commencement of a summary proceeding more than 12 months after the date on which the offence is alleged to have been committed.

The Submissions of the Accused:

Ms Gear prepared a carefully drafted set of written submissions dated 30 August 2014.  

The submissions are predicated on the assertion that the 12 month statute of limitations expired on 3 July 2012. A summary of those submissions appears on the second page of the written document, and include the critical proposition that a charge may be brought before the Court by having a warrant issued under s12(5) of the CPA.

A review of a number of authorities was set out, all of which concern legislative provisions which precede the current CPA provisions.

A number of principles may however be extracted, as follows:

• A failure to comply with service requirements relating to summonses precludes a magistrate from proceeding to hear and lawfully determine the charge;

• The effect of failing to comply with the service requirements for a summons is fatal to the charge being later revived;

• It may reasonably be assumed that the legislature intended that strict compliance is required to serve summonses within time, or to extend time for service of a summons within time;

• The legislature intended that the mandatory statutory provisions place a burden upon an informant to ensure that a charge and summons proceeds to hearing before the Magistrates’ Court expeditiously;

• In a criminal proceeding, there must be strict compliance with the requirements of the legislation governing both the laying of charges and the service of summons;

• If these requirements are not met, the Magistrates’ Court is precluded from proceeding to hear and determine the charge.   

The Submissions of the Prosecution:

L/S/C Gunn prepared an equally thoughtful and thorough set of submissions under cover of a Memorandum dated 20 October 2014.

The Prosecution case is that the warrant is simply a mechanism to bring the accused before the Court for a correctly filed charge, and that the charge filed with the Warrant merely creates a “duplicate” of the existing charge, which should be struck out.

A significant element of the submissions appeared to be that there was no binding authority on the point under the CPA.

That may be correct; however, the legislative scheme under which earlier authorities were decided was in very similar terms to those contained within the CPA.

There is nothing to suggest that the principles that I have extracted from the earlier authorities are incorrect or should not be applied. Indeed, this conclusion is consistent with one of the stated purposes of the CPA being the clarification, simplification and consolidation of the laws of criminal procedure in the Magistrates’ Court: s1(a).

Reliance upon dicta of Cavanough J in Murdoch v Smith & Anor [2006] VSC 468 is misconceived. That case was one where the summons was served within time but the wrong Magistrates’ Court was named in the summons. The case is distinguishable, as it was a case of a defective summons as opposed to defective service of a summons.

Analysis:

It is plain that the application for a warrant may only relevantly occur “on the filing of a charge-sheet under s6”. This strongly suggests that they are different procedural steps, and that the only proper means of commencing a summary criminal proceeding is pursuant to s6(1)(a) of the CPA.

If I were to accept the Prosecution submissions, that would render nugatory the express statutory provisions of s6 of the CPA, and would result in a situation where the warrant procedure could be adopted to commence or revive proceedings albeit after the ordinary time limitations had expired.

At the heart of the Prosecution case is the submission that a “paradox” is created by the charge-sheet and summons being two separate and distinct legal creatures.

The reliance by the Prosecution upon Murdoch v Smith & Anor (2006) 15 VR 186 is in my opinion misconceived.

Critically, the summons in that case was never served, and the case concerned a defective summons rather than one of non-service, and I therefore regard it’s reasoning as distinguishable. There is 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. It therefore seems to me that the warrant does not in truth simply create a duplicate of the existing charge, but is rather a process to revive a proceeding in which there was no work to do, given that the initial summons was then statute barred. 

Further, such a conclusion is inconsistent with the procedures for extending return dates on an issued summons.

In this case, the Informant did not apply to extend time after the time for attendance for the first mention had expired on 24 May 2012, nor was any alternate means of service explored.

There is no reference to the charge being a duplicate and no reference made to the original charge filed on 28 December 2011.
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 one not open to her, to purportedly make legitimate something which was impermissible.

There is no merit to the Prosecution argument that the defence failed to specifically announce that they were appearing “under protest”, as Ms Gear had consistently indicated that the issue of the validity of the charge was a live issue.

I see no legitimate reason to decline to follow the judicial approaches of cases such as Nitz v Evans (1993) 19 MVR 55 and Dawson v Magistrates’ Court of Victoria [2003] VSC 336. Public policy and statutory intention require strict compliance with procedural requirements and expeditious hearing of summary offences.

I do not accept that the mechanism by which an accused is brought before the Court is an answer to the argument that the Charge and Warrant constitutes the commencement of a fresh proceeding.

During the course of initial argument, my attention was drawn to a decision of this Court that is not binding upon me, but highly persuasive. On facts remarkably similar to the present facts, His Honour Magistrate Lethbridge on 17 December 2012 concluded that the filing of a Charge Sheet and Warrant to Arrest amounted to the commencement of a new proceeding, not the continuation of an expired Charge Sheet and Summons. Victoria Police were accordingly statute barred from proceeding on the Charge Sheet and Warrant to Arrest (Karen McCulloch v Andrew Johnson, C11200674).

I come to the same conclusion in this proceeding.

The charges must accordingly be dismissed.

I will hear the parties on the question of costs.