Marium v Van Zuylen

1. [1]

   The plaintiff was charged by a future Court Attendance Notice (“CAN”) with two counts as follows:

2. [2]

   On 19 December 2022, the plaintiff sought a stay of the proceedings in the Local Court seemingly on the basis that the proceedings were an abuse of process. On that day, the first defendant, Magistrate Van Zuylen, dismissed the plaintiff’s application.

3. [3]

   By a summons filed 7 March 2023, the plaintiff seeks prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of the Magistrate’s dismissal of her application. The plaintiff, who acts for herself, named four defendants to the summons being the Magistrate as the first defendant, Mark Darley, the police officer who commenced the proceedings against her as the second defendant, the Local Court at Blacktown as the third defendant, and Michael Tidball, (Secretary Department of Community and Justice) as the fourth defendant.

4. [4]

   The orders sought in the summons were these:

5. [5]

   The grounds of appeal were these:

6. [6]

   The summons described the Details of Decision in this way:

7. [7]

   The only defendants who should have been joined to the proceedings were Mr Darley and the Magistrate although, in accordance with r 59.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the Magistrate should have been named as the second defendant and not the first.

8. [8]

   It appears that there was some problem in obtaining a transcript, or a full transcript, of the proceedings before the Magistrate on 19 December 2022. It appears to be the case, from submissions filed by the plaintiff on 22 March 2023, that Mr Tidball was joined because the plaintiff took the view that he was ultimately responsible for the actions taken by the Department of Community and Justice and its employees, since the only way that Department was arguably involved was in relation to the provision of transcript through the Reporting Services Branch.

9. [9]

   Since the summons was filed, a complete copy of the transcript has been provided, and the plaintiff no longer seeks the orders set out in prayers 1 and 2 of the summons. An order will be made pursuant to r 6.29 UCPR removing the third and fourth defendants as parties to the proceedings.

10. [10]

    The second defendant filed a motion on 16 June 2023 seeking that the plaintiff’s claim be dismissed pursuant to r 13.4 UCPR, in the alternative that the summons be struck out pursuant to r 14.28 UCPR. Both the plaintiff’s summons and the second defendant’s notice of motion have come before me for hearing at the same time.

11. [11]

    At the outset, the plaintiff indicated also that she no longer sought the orders in prayers 5, 6 and 7 of the summons. During the hearing, the second defendant indicated that he no longer sought to move on its motion, but he continued to oppose the orders in prayers 3 and 4.

The collision and the charges

1. [12]

   On 25 October 2020, the plaintiff was involved in a motor vehicle accident at the intersection of Windsor Road and White Hart Drive, Rouse Hill. The plaintiff was driving south on Windsor Road, and her motor vehicle struck a motor vehicle that was travelling north on Windsor Road and turning right into White Hart Drive. The allegation is that the plaintiff drove her motor vehicle contrary to a red traffic light for traffic travelling south on Windsor Road, and that the driver of the other vehicle had a green arrow permitting her to turn right into White Hart Drive.

2. [13]

   The driver of the other vehicle suffered a broken right clavicle in her shoulder. She subsequently underwent an open reduction internal fixation of the right clavicle. A statement from her treating orthopaedic surgeon said that the surgery involved fixation of her right clavicle with plates and screws which were permanent. He considered she was unlikely to have significant deformity or dysfunction of the shoulder as a result of the fracture and/or the operation.

3. [14]

   On 12 April 2021, the plaintiff was served with a future CAN to attend court on 13 September 2021. The offence charged was negligent driving occasioning grievous bodily harm. On about 29 October 2021 the plaintiff appears to have been served with two further CANs. One of them added a second count of dangerous driving occasioning grievous bodily harm, and the second one combined the two offences charged into one CAN.

4. [15]

   At some time around the end of 2021 or early 2022 the plaintiff was served with a further CAN charging the two offences but adding some further information in the section headed “Details of Offences”.

5. [16]

   Finally, at some time prior to 29 April 2022, the plaintiff was served with a further CAN which again expanded on the information contained within it. Because one of the issues before the Magistrate concerned deficiency of particulars, it is necessary to set out the full text of that section of the final CAN headed “Details of Offences”. It reads:

The first Supreme Court proceedings

1. [17]

   On 28 October 2021, the plaintiff attempted to file a notice of motion in the Local Court which sought particulars of the negligence involved in her driving and particulars of the injury sustained by Ms Galbraith. The Local Court registry refused to accept the notice of motion on the basis that the plaintiff was employing a civil procedure in a criminal matter. The plaintiff brought proceedings in this Court seeking prerogative relief requiring the Registrar of the Local Court to reconsider the Court’s refusal to list her notice of motion.

2. [18]

   In this Court on 17 October 2022, Harrison J (as his Honour then was) upheld the plaintiff’s claim that the notice of motion had been wrongly refused, but held that the grant of relief lacked utility because the matters which the plaintiff wished to have heard were to be heard in due course: Marium v Registrar Local Court Blacktown [2022] NSWSC 1401.

3. [19]

   In the meantime, the prosecution’s brief of evidence was served sometime in February 2022. The plaintiff said in her submissions that two briefs were served, one on 25 February 2022 and one on 25 March 2022. The important thing for the present proceedings is that the brief had been served a considerable time before the hearing before the Magistrate in December 2022.

The application for a permanent stay

1. [20]

   While the proceedings in this Court were pending, at a date only discernible for an annexure note to an affidavit sworn by the plaintiff, the plaintiff filed an application in the Local Court on 27 June 2022 seeking a permanent stay of the proceedings. It seems that that application was stood over until 5 October 2022. On that date the stay application was then said to be stood over part heard to 19 December 2022. The evidence before me does not suggest that the hearing of the application actually commenced before the Magistrate on 5 October 2022, and the parties do not suggest that it did, despite the order made on 5 October 2022.

2. [21]

   The plaintiff swore an affidavit in support of the application and provided a Summary of Argument in writing. It is apparent from the affidavit and the Summary of Argument that there were two substantive bases upon which the application was brought. The first concerned the fact that there were five CANs in total served on the plaintiff, with the plaintiff maintaining that only the first was a valid one, because no leave had been obtained by the prosecutor to amend the first CAN or, thereafter, the succeeding CANs.

3. [22]

   The second basis was said to be the failure to provide particulars of the offence or offences charged. That second basis was taking up what the plaintiff had sought to agitate in the notice of motion of 28 October 2021, which she had not been permitted to file. Indeed, in her written submissions to the Magistrate, the plaintiff said:

4. [23]

   It seems likely that, when Harrison J said in his judgment at [31] that he was operating on the reasonable expectation that the plaintiff would be able to ventilate her concerns about the criminal process in the Local Court, his Honour was referring to the plaintiff’s application for a permanent stay of the proceedings.

Multiple CANs

1. [24]

   The plaintiff’s argument in relation to what she described as “multiple indictments” was that s 15 of the Criminal Procedure Act 1986 (NSW) (“the Act”) defined “indictment” to include a CAN. She drew attention to s 20 of that Act which relevantly provides:

2. [25]

   The plaintiff submitted that no leave had been obtained by the prosecutor to amend the CAN, with the result that the only CAN which had the force of law was the first one served upon her charging her with negligent driving occasioning grievous bodily harm. She further submitted that the prosecutor was declining to indicate which of the five CANs was being pursued.

3. [26]

   The only reference made to this submission in the Magistrate’s judgment is found in the following passage where his Honour said:

4. [27]

   Although the Magistrate was correct in determining that there were only two charges preferred against the plaintiff, his Honour’s judgment did not deal with the submission that the plaintiff was making. Her point was not that there were only two charges, but that five CANs had been issued and that, on her construction of s 20 of the Act, no leave had been obtained by the prosecutor to amend the first CAN served.

5. [28]

   Part of the problem seems to have emerged because, during oral submissions, the plaintiff appeared to alternate between whether there were two or five indictments. She was referring to them as indictments because of the definition in s 15 of the Act.

6. [29]

   The transcript reads in that regard as follows:

7. [30]

   The other likely reason for the plaintiff and the Magistrate being at cross-purposes was her belief, which the Magistrate was unlikely to have held, that CANs needed to be amended. A great deal of the difficulty about this aspect of the plaintiff’s case arises from the fact that s 15 of the Act provides:

8. [31]

   The terms of s 20 of the Act raise the question whether that section was intended to apply other than to indictments per se, by reason of the expansive definition in s 15. In the first place, it can be accepted that s 20 falls within “this Part”, that is, Part 2 of Chapter 2 of the Act. However, the term “court attendance notice” appears in other parts of the Act where the expanded definition of “indictment” does not apply. Both Committal proceedings (s 47 in Chapter 3 dealing with Indictable procedure) and Summary proceedings (s 172 in Chapter 4) commence by a CAN. There is nothing in those parts of the Act which prevents further CANs being issued after the first one. Indeed, what in fact happened in the present case is that a second criminal proceeding was commenced by the issuing of the second CAN which charged a separate, albeit, related offence, namely, dangerous driving occasioning grievous bodily harm.

9. [32]

   Nor is there any limitation in those parts of the Act (Chapter 3 being the relevant one here) about issuing further CANs which have the effect of amending or replacing a CAN already issued and served.

10. [33]

    Despite s 15, the provisions of s 20 are inapt to be referring to other than an indictment in the true sense of the term. That is because CANs are never “presented” as true indictments are, and as s 20 envisages. There is a further indication within Part 2 of Chapter 2 that where the term “indictment” is used, it must be referring only to a true indictment, despite s 15. Section 17 provides:

11. [34]

    The procedure described in s 17 (and s 18 which is related) is one that only concerns an indictment, the presentment of which commences a trial. Such a procedure does not apply to CANs.

12. [35]

    In Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240, Basten JA (Allsop P and Macfarlan JA agreeing) said at [40]:

13. [36]

    As a matter of general criminal practice, a CAN may be “amended” or replaced at any time before a trial by the issue of a new CAN without any leave being needed. Section 20 does not provide otherwise, nor does it prevent that occurring. As I have noted earlier, nothing in Chapters 3 and 4 dealing with CANs provides otherwise nor prevents that occurring.

14. [37]

    The Magistrate did not deal with the plaintiff’s argument, probably for the reasons I have given. However, nothing flows from that, because the plaintiff’s argument is misconceived. No leave was necessary.

15. [38]

    If I am in error in holding that the prosecutor was entitled to issue further CANs, whether by way of amendment, or in substitution for earlier CANs, what must be determined is the effect of such a failure on the part of the prosecutor to seek leave to amend. Part of that consideration would be whether, if leave was now sought to amend them, leave would be granted. Ultimately, the question on this issue is whether the proceedings should be permanently stayed because leave had not been obtained.

16. [39]

    In Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83, the question for determination was the adequacy of a CAN used to initiate summary criminal proceedings in the Local Court, and the effect of an inadequacy in that CAN upon the validity of a conviction in the proceedings. What was contended was that the CAN did not “briefly state the particulars of the alleged offence” as s 175(3)(b) of the Act required.

17. [40]

    Campbell JA (with whom Mason P and Tobias JA agreed) said:

18. [41]

    It is clear that the plaintiff is in no doubt about the case she has to meet. As she said to the Magistrate:

19. [42]

    The plaintiff also submitted that seeking a plea for multiple offences is an abuse of process when it originates from a single event such as in her case. The prosecutor made clear at the hearing before the Magistrate, if it had not been made clear earlier, that the charge of negligent driving was a back-up charge to the count of dangerous driving. The preferment of two charges in that manner does not constitute an abuse of process. The plaintiff accepted in her written submissions that sequence 2 was the principal offence and sequence 1 was the back-up offence. Hence, she abandoned prayer 5 in the summons.

20. [43]

    Although the first CAN charged her only with negligent driving causing grievous bodily harm, it has been clear from the time of service of the second CAN, and certainly from the brief that was served in February or March 2022, that she was facing those two charges. The different wording in the CANs only arises because a greater degree of particularity has been included in the successive CANs. There could be no basis for a refusal to amend the first CAN to the last form of the CAN if such an application was necessary and was made. Until it was made (if it was so required), the proceedings are not defective or a nullity. Nor are they are an abuse of process.

21. [44]

    In Belkheir v Director of Public Prosecutions (NSW) [2023] NSWSC 1233, Wilson J said:

22. [45]

    There was no abuse of process constituted by the service of five successive CANs which had the effect of adding one charge which arose from identical facts to the first charge preferred, and thereafter from clarifying and adding to the particulars contained in the CAN. It does not constitute a fundamental defect going to the root of the trial. This first basis upon which the application for permanent stay was brought should be rejected.

Lack of particulars

1. [46]

   The second basis upon which a permanent stay was sought was said to be the inadequacy of the particulars. A related argument concerned the question of whether the injury sustained by Ms Galbraith was capable of amounting to grievous bodily harm. The plaintiff submitted that:

2. [47]

   Although the complaint about inadequate particulars appeared under a heading in the plaintiff’s Summary of Argument before the Local Court “Executive abuse of power”, and despite the Details of the Decision section in the summons identifying the prosecutor as the decision maker to prosecute with inadequate particulars, I shall regard the submission as being directed to the alleged failure of the Magistrate to stay the proceedings when the particulars were inadequate. In the summons, the plaintiff challenges the second defendant’s “decision to prosecute”, but such a decision is not amenable to judicial review: Maxwell v The Queen (1996) 284 CLR 501; [1996] HCA 46 at 534; Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [37].

3. [48]

   Further, the complaint about the inadequacy of particulars appears to have been connected by the plaintiff to her submission that the only CAN which was before the Court was the first. In the details of offence in the first CAN the following appeared (omitting the statutory provision):

4. [49]

   The portion of the Magistrate’s judgment that made the determination concerning particulars was this:

5. [50]

   The plaintiff submitted that the Magistrate improperly endorsed the Fact Sheet as an acceptable alternative to providing particulars of the offence. She submitted that it was crucial to distinguish between facts and particulars. The plaintiff submitted, without a shred of evidence, that she suspected racial bias might have been at play in what the Magistrate did.

6. [51]

   The plaintiff submitted that there were no particulars establishing that Ms Galbraith had suffered from grievous bodily harm. She drew attention to what was contained in the expert’s certificate of Ms Galbraith’s treating doctor, Dr Mohammed Baba, that she was unlikely to have significant deformity or dysfunction of the shoulder as a result of the fracture and/or the procedure.

7. [52]

   Section 50 of the Act stipulates the form of a CAN. That section provides:

8. [53]

   Section 175 is in relevantly similar terms.

9. [54]

   Section 3 of the Act provides that rules means rules made for the purposes of a court to which the relevant provision applies. The only relevant rule in the Local Court is r 3.11 of the Local Court Rules 2009 (NSW) which provides:

10. [55]

    All that ss 50 and 175 of the Act require is that the CAN “briefly state the particulars of the alleged offence”. In Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, Dixon J said at 486 that it was necessary to specify “the time, place and manner of the defendant’s acts or omissions”. What is contained in the latest CAN does all of that and more. It identifies precisely the time and date, precisely the location being the intersection of the two streets, what the plaintiff was alleged to have done that constituted the offence, and the identification of the harm suffered by the victim. All of those matters were evident, in any event, from the Facts Sheet, in the brief of evidence that had been served long before the proceedings before the Magistrate. Although the Magistrate relied upon the Facts Sheet to set out what the defendant was informed of, he was not thereby confusing facts and particulars. Particulars, in any event, are facts themselves. The plaintiff may be confusing the issue of where evidence is pleaded in lieu of material facts and/or particulars in civil matters.

11. [56]

    Contrary to the plaintiff’s submission, the particulars provided in the CAN entirely comply with the principles and matters discussed in Johnson v Miller.

12. [57]

    What is contained in the CAN provides adequate particulars of grievous bodily harm. Grievous bodily harm is defined in s 4 of the Crimes Act 1900 (NSW) as follows:

13. [58]

    The question of whether a victim in a criminal trial has suffered grievous bodily harm is a factual determination for the jury to make. It is not something for a court to decide in advance of a trial. If the injuries suffered by Ms Galbraith in the present case are found by the tribunal of fact (here, a magistrate determining the offences summarily), the prosecution will fail to establish that the offences as charged have been committed. The decision by the magistrate can only be made when all of the evidence has been heard, and not in advance of the trial, based on the words in a medical certificate or report.

14. [59]

    No error of law has been demonstrated in relation to the Magistrate’s determination that adequate particulars have been provided. The plaintiff demonstrated no basis for a permanent stay of the proceedings before the Magistrate and there was no error in the Magistrate’s determination that such a stay should not be granted. The present summons should be dismissed.

15. [60]

    The accident that led to the charges occurred in October 2020. The plaintiff was first served with a CAN in April 2021. It is entirely unsatisfactory that the offences charged have not been heard. They have been delayed by two applications to this Court by the plaintiff with substantial delays occurring.

16. [61]

    In Belkheir, Wilson J said:

17. [62]

    It is highly desirable that the charges be fixed for hearing in the Local Court at the earliest opportunity.

Conclusion

1. [63]

   I make the following orders: