Fell v Chenhall

To boil a complex dispute down to its essence, the question raised by this interlocutory appeal in summary criminal proceedings is: does a failure to obtain leave to file a document commencing those proceedings in a registry other than that of the court in which the proceedings are to be conducted invalidate that purported commencement? The answer to the question is important in the circumstances of this appeal, because of the effect of the well-known statute of limitations that applies to wholly summary offences. In my opinion, the question must be answered in the negative.

Mr Simon Mark Fell is the defendant in the Local Court, and the plaintiff (that is, the appellant) in this Court. Ms Jennifer Chenhall is the prosecutor in the Local Court, and the first defendant (that is, the first respondent) in this Court. The second defendant, the Local Court of New South Wales, has filed a submitting appearance. For ease of comprehension, I shall simply refer to Ms Chenhall as the prosecutor, and Mr Fell as the defendant.

By way of an Amended Summons, the defendant seeks leave to appeal against an order made by Magistrate Degnan in the Local Court at Campbelltown on 19 December 2017. That order dismissed a Notice of Motion of the defendant of 5 December 2017. The Notice of Motion had sought an order that the proceedings for two offences before the Local Court be dismissed for want of jurisdiction. That proposition was in turn based upon the following disrupted and complex procedural history of the commencement of the matter, which was not the subject of any dispute before me.

On 22 July 2016, Mr Wozniak, an employee of the solicitor for the prosecutor, delivered two Court Attendance Notices (CANs) to the registry of the Local Court at Mount Druitt.

The first CAN charged the defendant with the offence, alleged to have been committed on 27 January 2016, of breaching the conditions of his Vehicle Safety Compliance Certification licence. That is a wholly summary offence. The document was stamped as having been received at the Mount Druitt registry on 22 July 2016.

The second CAN charged the defendant with an offence, alleged to have been committed on that same date, of failing to maintain inspection records. Again, that is a wholly summary offence. The second document was not stamped, and one filing fee only was paid. I shall refer to these two documents as the “Mount Druitt CANs”.

The two Mount Druitt CANs recorded that proceedings were listed before the Local Court at Campbelltown. However, the representative of the solicitor for the prosecutor did not verbally obtain the leave of the Registrar at Mount Druitt to file those CANs at a registry (Mount Druitt) other than the registry of listing (Campbelltown), either from the Registrar himself or herself, or from the member of the counter staff who interacted with Mr Wozniak.

On 28 July 2016, copies of those two Mount Druitt CANs were served on the defendant.

On 24 November 2017, the solicitor for the defendant, when looking at the online registry page, discovered that the CANs seemingly commencing proceedings between the defendant and the prosecutor were said to have been filed on 4 August 2016 (which was beyond the statute of limitations).

On 27 November 2017, the solicitor for the defendant attended the registry at Campbelltown to view the filed CANs. The two CANs provided to the solicitor were not the CANs filed at Mount Druitt (and were therefore not the CANs served on the defendant), but instead were two different CANs mysteriously filed and stamped at Campbelltown, and issued on 4 August 2016.

These two “Campbelltown CANs” were not identical to the two Mount Druitt CANs, as different offences were charged, and furthermore the particulars of the alleged offending were different.

On 1 December 2017, Mr Wozniak attended the Local Court at Campbelltown to view the paper file for the proceedings. The stamped Mount Druitt CAN now displayed the stamp of the registry at Campbelltown, with the date of 27 July 2016. The unstamped Mount Druitt CAN remained unstamped by any registry. Mr Wozniak was informed by a member of the counter staff that the Campbelltown CANs related to a different file, and that the Mount Druitt CANs related to the proceedings in question.

On 4 December 2017, the solicitor for the defendant made further inquiries about the CANs, and was told that the Campbelltown CANs were “filed over the counter” and that “there was no activity on the file at Mount Druitt”.

On 5 December 2017, in that vexed context, the defendant filed the Notice of Motion seeking an order that the Local Court proceedings be dismissed for want of jurisdiction.

On 13 and 19 December 2017, the motion was heard by the learned Magistrate in the Local Court at Campbelltown.

On 19 December 2017, his Honour dismissed the Notice of Motion. In a nutshell, his Honour held that the defendant was aware up until November 2017 that he was answering charges based upon the two Mount Druitt CANs; that the Campbelltown CANs did not commence proceedings as they appeared to be some kind of clerical error; that proceedings were commenced by the Mount Druitt CANs; and that, as the Local Court at Campbelltown received both CANs by 27 July 2016 (one stamped by both registries, and one not stamped by any registry), the Local Court had jurisdiction to hear the matters, because the prosecution for each had been commenced within the period of six months after the commission of the alleged offences.

At the hearing before me, both counsel (each of whom is very experienced in criminal matters) agreed that the various grounds of appeal of the defendant mounting various attacks upon the judgment of the Magistrate could be appropriately synthesised into the following propositions.

The only effectual CANs are the Mount Druitt CANs. They were filed in the Mount Druitt registry within six months of the commission of the alleged offences. That filing, however, occurred in breach of rule 8.7(4) of the Local Court Rules 2009 (NSW). That is because leave was not obtained, either from the Registrar personally or from a member of the counter staff exercising his or her functions, to file the Mount Druitt CANs at Mount Druitt when the proceedings were to take place in the Local Court at Campbelltown. Properly construed, the intention of Parliament is that that failure to obtain leave to proceed in that way, in breach of the relevant rule, invalidates the commencement of the prosecution for the two offences. Because any subsequent CANs were filed out of time (quite apart from any other defect that they may possess), the proceedings must be dismissed.

Again, both counsel expressed their contentment with my judgment simply analysing whether that pathway of reasoning is correct.

Senior counsel for the defendant explained that he relies upon the following provisions in various statutory instruments.

First, he invited attention to Division 1 of Part 2 (Trial procedures in lower courts) of Chapter 4 (Summary procedure) of the Criminal Procedure Act 1986 (NSW).

I was then taken to s 4 of the Criminal Procedure Act, which was said to evidence that the “rules” referred to in s 177(4) are the “rules made for the purposes of a court to which the relevant provision applies”. That means, it was said, that the applicable rules are the Local Court Rules, made pursuant to the Local Court Act 2007 (NSW).

Section 26 of the Local Court Act is as follows:

Turning then to the Local Court Rules, the salient portions are as follows:

Finally, senior counsel returned to s 16 of the Criminal Procedure Act (within Part 2 – Indictments and other matters, and Chapter 2 – General provisons), which is as follows:

Before turning to recount the substantive submissions of the defendant, two ancillary questions should be dealt with shortly.

The first is whether leave should be granted to appeal at all. That question arises because, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), leave to appeal is required for an appeal to this Court from an interlocutory order in a summary prosecution.

As for that question, one appreciates that leave to appeal in matters such as these should not be automatic, and that there is a significant public interest against the fragmentation of criminal proceedings. In my opinion, however, because of the determinative nature of the appeal if the propositions recounted above are correct; the importance of the proceedings before me to the general development of the law with regard to the effect of failure to comply with statutory provisions upon the commencement of a prosecution when a statute of limitations is in play; and the depth of research that was entered into by each party, it is appropriate for leave to be granted in this matter. Counsel for the prosecutor did not contend to the contrary.

The second preliminary matter is whether, as counsel for the prosecutor submitted, it could be said that leave was implicitly or sub silentio granted to file the CANs in Mount Druitt with regard to a prosecution to be conducted in Campbelltown.

As I have indicated above, the defendant does not submit that the Registrar personally was required to be brought to the counter at Mount Druitt to grant the leave for which the Local Court Rules call. In other words, it was accepted that the question of the granting of leave by the Registrar could be delegated to a member of the counter staff of the registry. But the defendant did submit that there needed to be some application for leave, however informal, and some turning of the mind of the member of the counter staff to the question, however cursory, and perhaps some notation on the documents, however abbreviated.

On this preliminary point, I accept the submission of the defendant. Contrary to the submission of the prosecutor, I do not believe that the mere filing of the CANs at Mount Druitt of itself shows that minds must have been turned to the question. I think it quite possible that, by way of a combined slip, neither Mr Wozniak nor the member of the registry staff considered this aspect of the rules. In saying that, of course I am not making slightest personal criticism of either of them, in light of the busyness of criminal practitioners, and of staff of all registries of all courts in New South Wales.

In short, I am of the opinion that leave to appeal should be granted, and that I should resolve the substantive question on the basis that no leave was obtained to file the two CANs at Mount Druitt that pertained to a prosecution at Campbelltown.

I understood the written and oral submissions of learned senior counsel for the defendant to be able to be summarised as follows.

The fundamental question is whether it was a purpose of the legislation that an act done in breach of the provision in question should be invalid: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [93]. In support of answering that question in the affirmative, senior counsel made the following points.

First, the Criminal Procedure Act and the Local Court Rules speak in mandatory terms. There is nothing suggestive or advisory about the requirement that documents commencing prosecutions must be filed in accordance with the relevant rules.

Second, it may be accepted that the point is a technical one. But the criminal law, both historically and at the present time, is replete with technicalities. And compliance with them is important because of the nature of the proceedings, featuring as they do a controversy between the state and the citizen that can lead to diminution or deprivation of liberty.

Third, the importance of compliance with technicalities in criminal proceedings, and especially with regard to the initiation of criminal proceedings, has been demonstrated as relatively recently as in R v Janceski [2005] NSWCCA 281, (2005) 64 NSWLR 10, a well-known decision in which a conviction was quashed because counsel briefed to appear as a Crown prosecutor was not authorised to sign the initiating process in the form of an indictment.

Fourth, the rule is binary, and admits of no evaluative judgment: there is a requirement for leave, and here leave has not been obtained.

Fifth, although one can accept that, in this case, the distance between Mount Druitt and Campbelltown, two suburbs of Sydney, is not great, one can see a sound policy reason behind the rule: it would be oppressive upon citizens if prosecuting authorities were able (without leave) to file documents in, for example, the registry of the Local Court in Broken Hill, in order to commence proceedings in Tweed heads.

Sixth, here a significant “schmozzle” (to use the apposite description of senior counsel) developed with regard to precisely where and how and for what the defendant was being prosecuted. One can readily infer that that state of affairs developed because the rule in question was not the subject of compliance. And it was not just a matter of inconvenience or needless work; a citizen was being prosecuted, and yet he and his legal advisors were not really appraised of what was occurring.

Seventh, no other remedy with regard to the non-compliance with the rules is available to the defendant; for example, further and better particulars do not retrospectively solve the failing in the filing. That suggests that the only remedy is invalidation.

Eighth, neither the Criminal Procedure Act nor the Local Court Rules set out a penalty for non-compliance with themselves. The only remedy, in the form of a penalty against the “miscreant”, is invalidation, and the requirement that the prosecutor “start again” if she is able to do so.

Ninth, the failing does not pertain to trivial proceedings. They are criminal in nature, and it is well-known that wholly summary offences can lead to severe consequences, including incarceration.

Tenth, the failing is not to do with some interlocutory procedural step along the way within proceedings that have been uncontroversially correctly commenced. The failing goes to the root of the criminal proceedings, in that it goes to their initiation.

Eleventh, the decision of Bell J in Sharman v Director of Public Prosecutions (NSW) [2006] NSWSC 135; (2006) 161 A Crim R 1 is important. That was a case in which the failing was that no CAN, with an endorsement as to service, was filed in court within seven days after lawful service, in accordance with s 177(4) (as it then was) of the Criminal Procedure Act. There, her Honour held that the intention of Parliament was indeed that non-compliance led to invalidation, and as failure to comply with s 177(4) meant the proceedings were not validly commenced within the period of limitation, the Local Court was without jurisdiction.

Twelfth and finally, it was said that s 16 of the Criminal Procedure Act “fixes” some failings in initiating process in criminal prosecutions, and thereby protects such failings from invalidation. But that remedial exercise does not extend to the failing encountered here. One can infer from the fact that Parliament has “fixed” some failings but not others that Parliament intended that the latter, as here, lead to invalidation.

In short, the submission was that, thinking about the statutory structure as a whole, one can see that the objective intention of Parliament is that failure to comply with rule 8.7 of the Local Court Rules, as occurred here, results in invalidation of the prosecution.

Turning to my determination of this question of statutory interpretation, I respectfully agree that senior counsel for the defendant has stated the test correctly. I do not agree, however, that one can discern that the objective intention of Parliament is that failure to obtain leave in the circumstances that arise here leads to ab initio invalidation of the prosecution.

It is convenient first for me to respond to each of the points made on behalf of the defendant.

First, I respectfully consider that the use of mandatory language in the relevant statutory instruments is the context within which this question of statutory interpretation arises. In other words, to my mind the use of mandatory language raises the question; it does not provide its answer.

Second, it is true that the criminal law remains to a degree technical, although undoubtedly there has been a movement away from the ritualistic formality that bedevilled the 18th and 19th centuries in England and Wales and New South Wales. But even accepting that the criminal law has its technicalities, the question remains: can one be affirmatively satisfied that Parliament intended that failure to comply with rule 8.7 leads to complete invalidation of the prosecution?

Third, it is also true to say that the criminal law places particular emphasis on the valid commencement of proceedings, and the decision in R v Janceski is a good example of that. But in my opinion there are important differences between the position in that case and the position in this one.

First, that was a trial on indictment, and I believe that the criminal law has always approached the question of prosecution of felonies and misdemeanours on indictment in the superior courts with more technical rigour than it approaches wholly summary prosecutions in the Local Court or its predecessors.

Second, indictments themselves have always been the subject of particularly rigorous rules; to give but one example, the rule that there can only ever be one indictment in a criminal trial.

Third, there are powerful reasons of policy why only a person empowered to commence a prosecution in a superior court for an indictable offence by signing an indictment should have been permitted to do so, on pain of invalidation of the proceedings. And whilst it is true that there are reasons of policy for compliance with the rule under consideration here (as demonstrated by the confused and confusing situation that developed), I do not believe that they are as powerful. To express that another way: I believe that the failing here should be characterised as far more procedural than substantive, in contrast to the position in R v Janceski.

In short, I do not believe that the decision in R v Janceski compels, or strongly supports, the proposition of senior counsel for the defendant.

Returning to my analysis of the enumerated submissions of the defendant: fourth, it is true that the rule is binary, in the sense that one either obtains leave or one does not. But again, in my opinion the real question is whether a failure to obtain leave is invalidating.

Fifth, it is true that there are policy reasons for a rule such as this, and no doubt countless others to be found in criminal law and procedure. And it is also true that the defendant was, for a time, left in a state of uncertainty as to the precise basis upon which it was said against him that he was liable to be prosecuted. Still and all, it is not easy to accept that non-compliance with this rule must lead to invalidation in all cases; to give an example, it is hard to accept that a CAN filed without leave in the registry of Central Local Court for a prosecution to be conducted in the Downing Centre (as a matter of judicial notice, no more than 400 m away) must be irreparably invalid ab initio.

Sixth, I accept as a matter of inferential finding of fact that the “schmozzle” was the result of the failure to obtain the necessary leave. But the thesis of senior counsel is not that the failing leads to invalidation on the facts of this particular case; rather, it is that the failing will lead to invalidation in all cases, as a matter of statutory interpretation. In that sense, the “schmozzle”, whilst not irrelevant, is only relevant indirectly.

Seventh, it is true that there is no intermediate remedy available to the defendant. But in a sense, the practical remedy has already been obtained, in that the position has been clarified through the diligence of his own legal team. In other words, I do not consider that the binary nature of the ultimate question (intended invalidation, or absence of such intention) assists the argument of the defendant: that is always the question that will arise pursuant to the principle in Project Blue Sky.

Eighth, it is true that no explicit penalty for non-compliance is set out in the Local Court Rules or the Criminal Procedure Act. But that is common, and one does not usually find, in rules about curial procedures, penalties for non-compliance with them. Yet again, to my mind the question simply devolves to whether or not the intention of Parliament is that failure to comply with the particular rule in question leads to invalidation of the prosecution.

Ninth, it may be accepted that the rule pertains to proceedings that are criminal in nature and that can have significant adverse consequences to a defendant. Still and all, in the scheme of things I am of the opinion that the rule must be characterised as far more procedural than it is substantive, bearing in mind that it boils down to a question of physical geography within the multiple registries of the one Court.

Tenth, I accept that procedurally correct initiation of criminal proceedings has been, and is to be given, particular importance. To give an example that arises in this very case, the statute of limitations that applies is strict and clear, and a difference of 24 hours can make all the difference between conviction or otherwise. Nevertheless, even allowing for that emphasis, I do not accept that this failing to comply with this rule is to be inferred as attracting the intention of invalidation on the part of Parliament. Indeed, in my opinion the contrast between the explicitness of the statute of limitations to which I have referred and its well-known consequences, and the rule under consideration is itself instructive.

Eleventh, it is true that, in Sharman, Bell J found that non-compliance with s 177(4) (as it then was) of the Criminal Procedure Act led to invalidation of a criminal prosecution. But there is at least one decision of another judge of this Court in a broadly similar context that broadly point in the other direction: see Blight v Inspector Barber [2007] NSWSC 448, and a decision of the New South Wales Court of Appeal to like effect: Knaggs v Director of Public Prosecutions [2007] NSWCA 83, (2007) 170 A Crim R 366. And in any event, I respectfully think that the decision of Bell J can be distinguished on the basis that its focus is very largely on a failing to comply with an Act, as opposed to a rule, and in a context in which Parliament had evinced an intention to create a new and strict regime of criminal procedure. I shall return to that contrast shortly.

Twelfth and finally with regard to the submissions of the defendant, it is quite true that s 16 of the Criminal Procedure Act does not speak of “fixing” the failing that has arisen here. But in my opinion, whilst it is true that it is structurally directed to all originating processes in criminal proceedings by way of s 15(2) of the Criminal Procedure Act, s 16 is directed towards removing the effect of historical formalities that came to burden the law about indictments in the 19th century; accordingly, its failure to refer to the failing complained of here is of little moment. And in any event, as counsel for the prosecutor submitted, I think that s 16 of the Criminal Procedure Act is better understood as showing that Parliament never conceived that the failing relied upon here could lead to invalidation.

Turning now from my respectful response to the summary of points made by senior counsel for the defendant, there are two further aspects of my analysis that are important to my determination.

The first is that it is very difficult to accept that any and all concluded prosecutions in which this particular failing has occurred must, as a matter of statutory construction, be regarded as a nullity, whenever they concluded and whether they resulted in a verdict of guilty or not guilty. And that outcome could have a significant adverse outcome for very many persons accused and acquitted of offences, because the Division under consideration with regard to initiation of prosecutions by CAN is not limited to wholly summary offences: see s 170(1) of the Criminal Procedure Act. In other words, the statute of limitations would not protect a person whose acquittal on an indictable offence had been found to be a nullity because the proceedings ab initio were a nullity.

The second and final aspect of my analysis is, as I have foreshadowed, the simple proposition that the failing here is against a rule, to be found in a delegated statutory instrument, and not in an Act itself (in saying that, I appreciate that the rule is “picked up” in the relevant Division of the Criminal Procedure Act).

In other words, without meaning the slightest disrespect to the relevant rulemaking committee, I think it significant that the failing does not relate to a mandate of the repository of democratic power in New South Wales, in the form of an Act of Parliament. And it is not easy to accept that Parliament intended that failing to comply with this particular clause of such an instrument would lead to invalidation.

In short, reflecting on all of the submissions of senior counsel for the defendant, and more generally, I do not accept that it has been established that the failure by the prosecutor to obtain leave to file originating process in one registry with regard to a prosecution in another of the same Court invalidates the prosecution to which that originating process related.

For that reason, whilst leave to appeal should be granted, I consider that the appeal should be dismissed.

It was agreed at the hearing that costs should follow the event.

For the foregoing reasons, I make the following orders: