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6
Court of Criminal Appeal 6 September 2006

Garrett v Freeman

[2006] NSWCCA 278

Also reported as (2006) 68 NSWLR 729
Other
CRIMINAL LAW PRACTICE AND PROCEDURE DEFECT IN SUBSTANCE OR FORM LOCAL GOVERNMENT S 731 LOCAL GOVERNMENT ACT 1993

Citation: Garrett v Freeman [2006] NSWCCA 278
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 2006
Judge(s): McColl JA, Grove J, James J

Background

The respondent, Stephen Garrett, was a solicitor employed by the Department of Environment and Conservation. He commenced criminal prosecutions in the Land and Environment Court for offences under the National Parks and Wildlife Act 1974 (the "Parks Act"). The summonses identified the prosecutor as "Stephen Garrett for and on behalf of the Director-General of the Department of the Environment and Conservation."

The defendant, Geoffrey Freeman, challenged the validity of those prosecutions. His central argument was that Garrett had not commenced proceedings in the correct capacity. Section 179 of the Parks Act required that proceedings for offences under the Act be taken either by a police officer or by a person "duly authorised by the Director-General in that behalf." Garrett had been individually authorised to prosecute, but the face of the summonses described him as acting as agent for the Director-General rather than in his own right.

Lloyd J in the Land and Environment Court ruled against the defendant on the commencement question, finding the "for and on behalf of" wording was mere surplusage. The matter came before the Court of Criminal Appeal by way of a stated case under s 5AE of the Criminal Appeal Act 1912, raising several discrete legal questions for determination.

  • Whether the prosecutions were commenced by a person "duly authorised by the Director-General in that behalf" within the meaning of s 179 of the Parks Act, given the "for and on behalf of" wording in the summonses
  • Whether the phrase "for and on behalf of" constituted mere surplusage or, instead, described the capacity in which Garrett acted
  • Whether any defect in the commencement of proceedings was capable of cure under s 16(2) of the Criminal Procedure Act 1986
  • Whether s 731 of the Local Government Act 1993, which protects council employees acting in good faith, applies to criminal prosecutions
  • Whether the amendments made to the summonses involved "a mistake in the name of a party" within Part 20 r 4(3) of the Supreme Court Rules 1970

Decision

Commencement of proceedings: The Court of Criminal Appeal held that Lloyd J erred in treating the words "for and on behalf of the Director-General" as mere surplusage. The phrase "for and on behalf of" carries the classic legal meaning of agency: Garrett was acting on the Director-General's behalf, not in his own right as an authorised person. Because s 179 required proceedings to be taken by an authorised person in their own capacity, commencing them as the Director-General's agent did not comply with the provision. The proceedings were therefore treated as having been brought by the Director-General rather than by Garrett personally.

Curability under the Criminal Procedure Act: Despite finding the defect, the Court agreed with Lloyd J that it was capable of cure under s 16(2) of the Criminal Procedure Act 1986. The Court distinguished the situation from R v Janceski [2005] NSWCCA 281, where the defect at issue fell outside both ss 16 and 17 of that Act entirely. The present defect did fall within s 16(2), and the historical purpose of that provision (traceable to Lord Jervis' Act, adopted in New South Wales in 1850) was precisely to prevent technical defects from defeating criminal proceedings. Spigelman CJ's statement in Janceski that "a technical point is still a good point" was taken to be subject to the operation of provisions such as s 16(2).

Mistake in name of party: Lloyd J had found that it was always intended that Garrett be the prosecutor. On that factual finding, the Court held there was indeed "a mistake in the name of a party" within Part 20 r 4(3) of the Supreme Court Rules, justifying the amendments made to the summonses, even if the effect was to substitute a new party. The conditions under the rule, that the mistake was not misleading and caused no reasonable doubt about identity, were satisfied.

Section 731 Local Government Act: The Court answered "no" to the question of whether s 731 of the Local Government Act 1993, which provides civil immunity to council employees acting in good faith, applies to criminal prosecutions. That protection does not extend to criminal proceedings.

Orders Made

The stated case questions were answered as follows:

  • Question 1: No
  • Question 2: Yes
  • Question 3: Yes
  • Question 4: Yes
  • Question 5: No
  • Question 6: No
  • Question 7: No

Key Takeaways

  • The phrase "for and on behalf of" in a summons is not mere surplusage. Under established principles of agency, it signifies that the named individual is acting as agent for the identified principal, not in their own right.
  • Where a statute requires proceedings to be taken by a specifically authorised person, that person must commence proceedings in their own capacity. Framing the summons as action taken on behalf of the authorising principal creates a capacity defect.
  • A defect of this kind, in the name or capacity of the prosecutor in a summons, is capable of cure under s 16(2) of the Criminal Procedure Act 1986, provided the defect falls within the scope of that provision. The Court of Criminal Appeal confirmed this is distinct from the situation in R v Janceski, where s 16 was simply unavailable.
  • Section 731 of the Local Government Act 1993, which shields council employees from liability for acts done in good faith, does not apply to criminal prosecutions.
  • Where it is established that a mistake in the name of a party was not misleading and caused no reasonable doubt about the intended party's identity, Part 20 r 4(3) of the Supreme Court Rules permits amendment to correct the mistake, even if the amendment substitutes a new party.

Legislation and Cases Referenced

Legislation:
- National Parks and Wildlife Act 1974 (NSW), ss 118D, 175B, 179
- Criminal Procedure Act 1986 (NSW), s 16(2)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Local Government Act 1993 (NSW), s 731
- Supreme Court Rules 1970 (NSW), Pt 20 r 4(3)
- Justices Act 1902 (NSW)
- Crimes Act 1900 (NSW)
- Clean Waters Act 1970 (NSW)
- Income Tax and Social Security Contribution Assessment Act 1936 (Cth)
- Workers Compensation Act 1987 (NSW)

Key Cases:
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- Stuckey v Iliff [1960] HCA 57; (1960) 105 CLR 164
- Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399
- London City Council v Agricultural Food Products Ltd [1955] 2 QB 218
- McRae v Coulton (1986) 7 NSWLR 644
- O'Reilly v Commissioners of State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1
- Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153
- Corporate Affairs Commission v Bain (1991) 55 A Crim R 73
- Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312