Citation: Graham Blight v Inspector Barber [2007] NSWSC 448
Court: Supreme Court of New South Wales, Common Law Division
Date: 8 May 2007
Judge(s): Price J
Background
The plaintiff was facing prosecution in the Chief Industrial Magistrates Court for alleged breaches of the Occupational Health and Safety Act 2000, arising from an incident on 11 August 2003. The prosecutor was a WorkCover inspector. After pleas of not guilty were entered, the plaintiff challenged the jurisdiction of the Chief Industrial Magistrate before the hearing commenced.
The challenge centred on the two court attendance notices (CANs) filed to commence the proceedings. Neither CAN contained the statement required by section 175(3)(e) of the Criminal Procedure Act 1986 (CP Act), which obliges a CAN to warn the accused that failure to appear may result in arrest or the matter being dealt with in their absence.
The Chief Industrial Magistrate rejected that challenge and found the CANs were valid. The plaintiff then sought declarations from the Supreme Court that the proceedings had not been commenced within the statutory time limit and that the Chief Industrial Magistrate lacked jurisdiction to hear the matter.
Legal Issues
- Whether compliance with section 175(3)(e) of the CP Act, requiring a specific warning about failure to appear, is mandatory, such that omitting the statement invalidates the CAN and deprives the court of jurisdiction.
- Whether the reasoning in Sharman v Director of Public Prosecutions [2006] NSWSC 135, which held that section 177(4) requirements were mandatory, applied equally to section 175(3).
- Whether the CANs were filed in a prescribed form and whether there was a valid prescribed form at the relevant time.
- Whether the proceedings were validly commenced within the time prescribed by section 107 of the Occupational Health and Safety Act 2000.
- Whether the plaintiff was properly served with the defendant copies of the CANs.
Decision
Price J dismissed the plaintiff's amended summons and declined to grant the declarations sought. His Honour found that the proceedings against the plaintiff were validly commenced within time and that the Chief Industrial Magistrate has jurisdiction to hear them.
The court distinguished the present case from Sharman, where Bell J had found a jurisdictional defect arising from non-compliance with section 177(4), which directly governed the timing and manner of commencement of proceedings by requiring a copy CAN bearing a completed endorsement of service to be filed within the limitation period. By contrast, the omission here concerned the warning statement in section 175(3)(e), which is part of the form requirements for the CAN rather than a condition going to the filing and commencement of proceedings. The CANs in this case were served on 1 August 2005 and filed on 5 August 2005, well within the required seven-day period, and no issue arose under section 177.
On the question of form, the court found that rules 59(2) and 59(3) of the Local Courts (Criminal and Application Procedure) Rule 2003 established valid prescribed forms for CANs, and that the CANs filed complied with those requirements. His Honour also found that, on the evidence before the Chief Industrial Magistrate, it was open to conclude on the balance of probabilities that the plaintiff had been properly served with the defendant copies of the CANs.
No error by the Chief Industrial Magistrate was established that would entitle the plaintiff to declaratory relief. The proceedings were remitted for hearing.
Orders Made
- The Amended Summons be dismissed.
- The plaintiff is to pay the costs of the first defendant.
- The proceedings be remitted back to Chief Industrial Magistrate for hearing.
Key Takeaways
- A failure to include the section 175(3)(e) warning statement in a court attendance notice does not automatically deprive the court of jurisdiction to hear criminal proceedings under the CP Act.
- The Sharman decision, which found a jurisdictional defect from non-compliance with section 177(4), was confined to the specific requirement that a copy CAN bearing an endorsement of service be filed within the limitation period. That requirement is directly tied to the commencement of proceedings, whereas section 175(3)(e) concerns form only.
- Under the Local Courts (Criminal and Application Procedure) Rule 2003, prescribed forms for CANs existed and were operative at the relevant time, and CANs that complied with those rules satisfied the form requirements of the CP Act.
- No error was established in the Chief Industrial Magistrate's finding that the CANs were valid and that the court had jurisdiction, making declaratory relief in the Supreme Court unavailable on these facts.
- Where an accused challenges service, it remains open to the lower court to find on the balance of probabilities that service occurred, including where the accused does not give evidence, provided the court does not impermissibly draw adverse inferences from that silence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 3, 172, 173, 175, 175(2), 175(3), 175(3)(e), 177, 177(4), 178, 179
- Occupational Health and Safety Act 2000 (NSW), ss 8(1), 8(2), 26(1), 107, 107A
- Local Courts (Criminal and Application Procedure) Rule 2003, cl 59(1), cl 59(2), cl 59(3)
- Justices Act 1902 (NSW), ss 52 to 77
- Criminal Procedure Amendment (Justices and Local Courts) Bill
- Crimes (Local Courts Appeal and Review) Bill
- Justices Legislation Repeal and Amendment Bill
Cases:
- Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
- Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83
- Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
- Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355
- Sharman v Director of Public Prosecutions [2006] NSWSC 135