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Supreme Court 29 November 2007

Director of Public Prosecutions v Stevens

[2007] NSWSC 1350

Traffic & driving
CRIMINAL LAW PROCEDURE SUMMARY PROCEEDINGS BEFORE LOCAL COURT COURT ATTENDANCE NOTICE WHETHER MAGISTRATE ERRED ADMINISTRATIVE LAW

Citation: Director of Public Prosecutions v Stevens [2007] NSWSC 1350
Court: Supreme Court of New South Wales (Common Law Division)
Date: 29 November 2007
Judge(s): Walmsley AJ

Background

A police officer commenced three summary prosecutions against a driver (the first defendant) for negligent driving occasioning grievous bodily harm, arising from a motor vehicle accident in January 2005. The officer prepared Court Attendance Notices (CANs) in early June 2005 and posted copies to both the defendant and Sutherland Local Court, well within the six-month limitation period. The CANs were received at the Local Court on 9 June 2005, within the required time.

The problem arose because the only copies of the CANs actually present on the court file were reprints generated from electronic records on 3 August 2005, a date outside the statutory period. The original filed copies bearing a court stamp showing the timely filing date were not on the file. The prosecutor, however, held copies of the CANs bearing a court stamp confirming they had been filed within time.

When the matter came before the magistrate (the second defendant) in October 2005, the defendant's counsel submitted the court lacked jurisdiction because the documents on the court file showed filing outside the limitation period. The magistrate accepted that submission, marked the CANs "No jurisdiction," and did not dismiss the proceedings. Because no formal dismissal was entered, the Director of Public Prosecutions had no right of appeal under the standard statutory avenue and instead applied to the Supreme Court for prerogative relief.

  • Whether the magistrate erred in law by looking only at the court file, rather than at all available evidence, to determine whether the CANs had been filed within the statutory time limit.
  • Whether restricting that inquiry to the court file documents constituted a constructive failure to exercise jurisdiction.
  • Whether relief in the nature of mandamus was appropriate, having regard to discretionary considerations including delay and the nature of the charges.
  • Whether the police officer's endorsement on the CANs complied with the relevant procedural rules concerning service addresses.

Decision

Walmsley AJ found that the magistrate had committed jurisdictional error. The prosecutor had drawn the magistrate's attention to stamped copies of the CANs demonstrating timely filing, but the magistrate confined his inquiry to the documents physically present on the court file. By refusing to consider material that was relevant to the jurisdiction question, the magistrate constructively failed to exercise the court's jurisdiction.

The court emphasised that the filing question was a question of fact, and the stamped copies held by the prosecutor constituted relevant evidence bearing directly on that fact. Restricting the inquiry to the court file, while evidence to the contrary was being proffered, was not a lawful exercise of jurisdiction. The proper course was to consider all material placed before the court on the point.

On the question of mandamus, Walmsley AJ noted that relief may be granted where an inferior tribunal has constructively refused to exercise its jurisdiction. Here, the magistrate had not dismissed the proceedings, so no appeal was available, and mandamus was the appropriate remedy. The court was not persuaded to decline relief on discretionary grounds: the delay was explained, the injuries to victims were significant, and the first defendant had filed a submitting appearance and did not oppose the orders.

On the subsidiary endorsement issue, the court noted that the rule required the officer to endorse the manner in which the defendant was informed of the address used for service, and the officer's endorsement appeared to satisfy that requirement. Because the magistrate had not decided that question, the court observed only that it would be open to the prosecution to call evidence on the point if the matter proceeded.

Orders Made

  • Declaration that the second defendant (the magistrate) fell into jurisdictional error in determining he was without jurisdiction to hear and determine the proceedings.
  • Order that the proceedings be remitted to the Local Court to be determined according to law.

Key Takeaways

  • A magistrate determining whether a CAN was filed within the statutory limitation period must consider all relevant material placed before the court, not only documents physically present on the court file.
  • Confining a jurisdiction inquiry to the court file, while the prosecutor proffers stamped copies of CANs demonstrating timely filing, constitutes a constructive failure to exercise jurisdiction.
  • Where a magistrate finds "no jurisdiction" without formally dismissing proceedings, no right of appeal arises under the Crimes (Appeal and Review) Act 2001; mandamus to the Supreme Court is the available remedy.
  • Relief in the nature of mandamus is available to correct a constructive refusal to exercise jurisdiction by an inferior court, and delay alone will not necessarily be a bar to that relief where it is adequately explained.
  • Under amendments to the Criminal Procedure Act 1986 made after the events in this case, the nexus between service of a CAN and the court's jurisdiction was removed, meaning the precise filing-within-seven-days issue addressed here applies to the former legislative regime.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 172, 173, 177(4)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 5 Division 2
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1)(b)
- Supreme Court Act 1970 (NSW), s 69(1)(c)
- Director of Public Prosecutions Act 1986 (NSW), s 9(1)(c)
- Local Courts (Criminal and Applications Procedure) Rule 2003, Rule 37(2)(e)

Cases
- Barns v Edwards (1993) 31 NSWLR 714
- Brygel v Stewart-Thornton [1992] 2 VR 387
- Director of Public Prosecutions v Cakici & Anor [2006] NSWSC 454
- Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
- Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
- R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
- Sharman v Director of Public Prosecutions & Anor [2006] NSWSC 135; (2006) 161 A Crim R 1