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Supreme Court 27 June 2007

Wallace & Anor v Director General - NSW Department of Primary Industries & Anor

[2007] NSWSC 654

Other
JUDICIAL REVIEW DECISION OF LOCAL COURT MAGISTRATE S 175(3)(C), CRIMINAL PROCEDURE ACT NAME OF PROSECUTOR

Citation: Wallace & Anor v Director General - NSW Department of Primary Industries & Anor [2007] NSWSC 654
Court: Supreme Court of New South Wales, Common Law Division
Date: 27 June 2007
Judge(s): Associate Justice Harrison

Background

Two commercial fishers were convicted in the Local Court at Taree in March 2005 of multiple offences under the Fisheries Management Act 1994 (NSW) and related regulations, including contraventions involving rock lobster tagging, storage, daily log sheets, and plan endorsements. Before entering their guilty pleas, both men formally objected to the Court Attendance Notices (CANs) issued against them. The Magistrate rejected the objection and proceeded to conviction.

The two men then sought judicial review in the Supreme Court. Their central argument was that the CANs were defective because they identified the prosecutor by title ("Director-General, NSW Department of Primary Industries") rather than by an individual's proper name, and that this failure to comply with the Criminal Procedure Act 1986 (NSW) stripped the Local Court of jurisdiction.

  • Whether a Court Attendance Notice must identify the prosecutor by personal name (as a natural person) to satisfy s 175(3)(c) of the Criminal Procedure Act 1986 (NSW).
  • Whether a failure to comply with s 175(3)(c), if established, renders a CAN invalid and any resulting convictions null and void.
  • Whether s 16(1)(f) of the Criminal Procedure Act, which permits persons to be designated by office or title rather than proper name, applied to cure any deficiency in the CANs.

Decision

Associate Justice Harrison dismissed the summons, rejecting all three grounds on which the plaintiffs might have succeeded. The court found that describing the prosecutor as "Director-General, NSW Department of Primary Industries" was sufficient identification. The Director-General is a statutory officeholder, and only one person occupies that position at any time, meaning the identity of the prosecutor responsible for the prosecution was not in doubt.

Even if that description had been insufficient, s 16(1)(f) of the Criminal Procedure Act provides that an indictment is not void, erroneous, or defective merely because a person is designated by the name of their office or a descriptive title rather than their proper name. Her Honour held that this provision applied and would cure any such deficiency.

On the broader question of whether non-compliance with s 175(3) automatically invalidates a CAN, the court applied reasoning from recent authorities, particularly the Court of Appeal's decision in Knaggs v Director of Public Prosecutions [2007] NSWCA 83 and Graham Blight v Inspector Barber [2007] NSWSC 448. Although s 175(3) uses the word "must," neither an express provision nor a necessary implication of invalidity exists in the Act. The court found that a failure to comply with s 175(3) does not, of itself, deprive the Local Court of jurisdiction.

The Magistrate had therefore acted within jurisdiction throughout, and no error warranting the declarations sought was established.

Orders Made

  • The summons filed 16 August 2006 was dismissed.
  • The plaintiffs are to pay the defendants' costs as agreed or assessed.

Key Takeaways

  • Identifying a prosecutor by statutory title or office in a Court Attendance Notice satisfies s 175(3)(c) of the Criminal Procedure Act 1986 (NSW), at least where only one person occupies that office.
  • Section 16(1)(f) of the Criminal Procedure Act provides that designating a person by office or descriptive title, rather than proper name, does not render an indictment (or by extension a CAN) void or defective.
  • Although s 175(3) uses mandatory language ("must"), the Supreme Court confirmed that non-compliance does not automatically invalidate a CAN or deprive the Local Court of jurisdiction, following the approach taken in Knaggs and Blight.
  • The transition from the information-and-summons regime under the Justices Act 1902 to the CAN regime under the Criminal Procedure Act consolidated two documents into one, but did not fundamentally alter the substantive requirements for a valid initiating process.
  • No error was established sufficient to warrant declarations that the convictions were null and void.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 16, 172, 175
- Fisheries Management Act 1994 (NSW), ss 3, 289
- Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW), ss 65, cll 22, 42, 48
- Courts Legislation Miscellaneous Amendments Act 2002 (NSW)
- Justices Act 1902 (NSW)

Cases:
- Knaggs v Director of Public Prosecutions [2007] NSWCA 83
- Graham Blight v Inspector Barber [2007] NSWSC 448
- John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508