Citation: Di Natale & Anor v Kelly (An Officer of the RSPCA, NSW) [2006] NSWCCA 201
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2006
Judge(s): Grove J, Hall J, Smart AJ
Background
A father and son were each charged with four offences of alleged animal cruelty under the Prevention of Cruelty to Animals Act 1979, arising from events at rural premises in 2002. The proceedings were summary in nature and were commenced in the Local Court. Summonses were required to be served by post under the Justices Act 1902, with s 63(2) of that Act requiring service at least 28 days before the return date.
The summonses were posted on or about 25 May 2003, with a return date of 10 June 2003. That gap was less than 28 days, placing the service squarely outside the statutory timeframe. Both appellants received the summonses and each signed and lodged a written notice of pleading indicating an intention to plead not guilty, without raising any objection to the late service. Neither appeared at the hearing on 26 September 2003 and both were convicted in their absence.
On appeal to the District Court, the appellants raised the defective service for the first time. The District Court judge held that non-compliance with s 63(2) was merely a procedural irregularity and did not prevent the Magistrate from proceeding. The appellants then sought a case stated to the Court of Criminal Appeal on two questions of law.
Legal Issues
- Whether the 28-day service requirement in s 63(2) of the Justices Act 1902 was a mandatory requirement or merely a procedural one.
- Whether non-compliance with s 63(2) constituted a condition precedent to the Magistrate's jurisdiction to hear and determine the charges.
- Whether the appellants' lodging of written notices of pleading without objection amounted to a waiver of the service defect.
- What effect non-compliance had on the convictions recorded against the appellants.
Decision
The Court of Criminal Appeal answered both questions in the case stated in the affirmative, agreeing with the District Court that the 28-day posting rule was not a mandatory requirement and that non-compliance did not oust the Magistrate's jurisdiction. The laying of the informations was what vested jurisdiction in the Magistrate. Failure to observe the 28-day period was characterised as an irregularity, not a jurisdictional defect.
The Court noted that the Justices Act 1902 was not cast in mandatory terms, and that ss 75 and 75A of that Act required proof of "due service … a reasonable time before" the hearing rather than strict compliance with the 28-day period. That "reasonable time" language made it difficult to treat the 28-day requirement as an absolute condition. The Court also distinguished Victorian authority that had reached a different conclusion, noting that the Victorian legislation used explicitly mandatory language absent from the NSW Act.
However, the Court also found that the District Court judge, despite correctly characterising the non-compliance as an irregularity, had nonetheless erred in not recognising that the objectives of proper service had not been met on the facts. The convictions should not have been recorded in those circumstances, and the penalties imposed were wrongly imposed. Accordingly, the matter was remitted to the District Court for further hearing.
Orders Made
- Both questions of law in the case stated were answered "yes."
- The proceedings were remitted to the District Court of New South Wales for further hearing in accordance with the Court's answers to the questions stated, pursuant to s 5B(1) of the Criminal Appeal Act 1912.
- Costs of the appeal by way of case stated were awarded in favour of the appellants against the respondent.
Key Takeaways
- Non-compliance with the 28-day posting requirement in s 63(2) of the Justices Act 1902 was held to be a procedural irregularity, not a condition precedent to the jurisdiction of a Magistrate to hear and determine a summary matter.
- Jurisdiction in summary proceedings under the Justices Act 1902 was vested by the laying of the information, not by service of the summons within the prescribed period.
- The Court of Criminal Appeal drew a distinction between the NSW statutory language and Victorian provisions that used expressly mandatory terms, declining to follow Victorian decisions that had treated equivalent time requirements as jurisdictional.
- Where the objectives of proper service have not been achieved in fact, it does not follow that a Magistrate should simply proceed to conviction in the defendant's absence. The Court found the convictions should not have been recorded even though the service defect was not jurisdictional in character.
- A defendant's lodging of a notice of pleading without raising a service objection does not necessarily waive all consequences of defective service where the core purpose of giving adequate notice has not been fulfilled.
Legislation and Cases Referenced
Legislation
- Prevention of Cruelty to Animals Act 1979 (NSW)
- Justices Act 1902 (NSW), including s 63(2), ss 75 and 75A
- Justices (Amendment) Act 1967 (NSW)
- Justices (Amendment) Act 1970 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 18 and 19
Cases
- Camilleri's Stock Feeds Pty Ltd (1993) 32 NSWLR 683
- Turnbull v NSW Medical Board (1976) 2 NSWLR 281
- Park Gate Iron Co v Coates (1870) LR 5 Crown 634
- Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27
- Brown v The Queen (1985-86) 160 CLR 171
- Sandringham CC v Rayment (1928) 40 CLR 510
- Davies v Davies (1919) 26 CLR 348
- Ex parte Gobbert; re Wilkes & Anor (1941) 58 WN(NSW) 113
- Nitz v Evans (1993) 19 MVR 55
- Platz v Barmby [2002] VSC 531