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Supreme Court 5 May 2006

Director of Public Prosecutions v Cakici and Anor

[2006] NSWSC 454

Traffic & driving
CRIMINAL LAW LOCAL COURT PRACTICE AND PROCEDURE ENDORSEMENT OF SERVICE OF NOTICE

Citation: Director of Public Prosecutions v Cakici and Anor [2006] NSWSC 454
Court: Supreme Court of New South Wales
Date: 5 May 2006
Judge(s): Johnson J

Background

The defendant was charged with unlicensed driving under the Road Transport (Driver Licensing) Act 1998. A Court Attendance Notice (CAN) was issued and served on him, and he appeared at Burwood Local Court on 15 July 2005, where he entered a guilty plea and was granted an adjournment.

On 14 October 2005, the matter returned to Burwood Local Court before a different magistrate. The defendant did not appear. The magistrate noticed the notation "SDG" on the bench sheet and, incorrectly, interpreted it to mean "Summons Defective." In fact, "SDG" stood for "Standard Directions Given," a notation made by the prior magistrate when granting the adjournment.

Acting on this misreading, the magistrate concluded that the CAN was defective because the endorsement of service did not record the place of service, and he dismissed the charge on jurisdictional grounds. The Director of Public Prosecutions appealed to the Supreme Court on a question of law under the Crimes (Local Courts Appeal and Review) Act 2001.

  • Whether clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003 required an endorsement of service on a CAN to include the place of service.
  • Whether the magistrate erred in law by dismissing the charge rather than recording a finding of "no jurisdiction," even if the CAN had in fact been defective.
  • Whether the declaration sought by the DPP was appropriate given the proceeding would not be remitted for rehearing.

Decision

Johnson J held that clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003 did not require the endorsement of service on a CAN to specify the place of service. The magistrate's conclusion that the absence of a place of service rendered the CAN defective was a clear error of law.

The Court also held that, even if the magistrate's view about the deficiency were correct, a further error of law arose from the order made. Where a magistrate finds there is no jurisdiction over a matter, the appropriate order is one of "no jurisdiction," not a dismissal of the charge. The distinction is legally significant because a dismissal carries different consequences, including, historically, the prospect of costs orders against a prosecutor under the Justices Act 1902 framework.

Johnson J noted that section 213(4) of the Criminal Procedure Act 1986 now expressly allows a costs order to be made against a prosecutor where proceedings are dismissed as invalid, which addressed an earlier practical difficulty that arose in cases such as Director of Public Prosecutions v Goben.

The DPP did not seek to have the matter remitted for rehearing, and no order setting aside the magistrate's dismissal was pursued. The proceedings were brought primarily to resolve a point of procedural law that had reportedly led to erroneous dismissals of other Local Court matters.

Orders Made

  • Declaration that the Second Defendant (the Magistrate) erred in law as to the proper construction and application of clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003.
  • The First Defendant (the accused) ordered to pay the Plaintiff's costs of the proceedings, with a certificate granted to the First Defendant under section 6 of the Suitors' Fund Act 1951. The DPP also undertook not to enforce costs against the First Defendant personally beyond the amount allowed under that Act.

Key Takeaways

  • Under clause 37 of the Local Courts (Criminal and Applications Procedure) Rule 2003, an endorsement of service on a Court Attendance Notice need not state the place of service. A CAN that omits the place of service is not defective on that basis.
  • Where a magistrate concludes that a CAN is fatally defective and that the court lacks jurisdiction, the correct order is "no jurisdiction," not a dismissal of the charge. These are legally distinct outcomes with different procedural consequences.
  • Section 213(4) of the Criminal Procedure Act 1986 permits a Local Court to order a prosecutor to pay costs even where proceedings are dismissed because they are invalid, addressing a gap that existed under the former Justices Act 1902 regime.
  • The Supreme Court retained jurisdiction to make a declaration on a question of law even where the DPP chose not to seek remittal of the underlying charge, on the basis that the procedural issue was of general importance to Local Court practice.
  • A Suitors' Fund certificate may be granted to a defendant who loses a DPP appeal on a question of law, particularly where the defendant participated in proceedings without legal representation and the DPP undertakes not to enforce costs beyond the statutory indemnity.

Legislation and Cases Referenced

Legislation:
- Crimes (Local Courts Appeal and Review) Act 2001
- Local Courts (Criminal and Applications Procedure) Rule 2003, clause 37
- Criminal Procedure Act 1986, ss 202, 213(4)
- Road Transport (Driver Licensing) Act 1998, s 25(2)
- Director of Public Prosecutions Act 1986, ss 9, 10
- Justices Act 1902, s 80 (repealed)
- Suitors' Fund Act 1951, s 6

Cases:
- Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343
- Director of Public Prosecutions v Goben [1999] NSWSC 696
- Roads and Traffic Authority v Wood (2005) 63 NSWLR 596
- Sharman v Director of Public Prosecutions [2006] NSWSC 135
- Barns v Edwards (1993) 31 NSWLR 714
- Director of Public Prosecutions v Belani [2005] NSWSC 1013