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Court of Criminal Appeal 6 February 2008

Warringah Council v Kazi

[2008] NSWCCA 6

Other
CRIMINAL LAW CASE STATED PROSECUTION BY PUBLIC BODY USE OF COURT ATTENDANCE NOTICE MEANING OF "PUBLIC OFFICER"

Citation: Warringah Council v Kazi [2008] NSWCCA 6
Court: Court of Criminal Appeal, New South Wales
Date: 6 February 2008
Judge(s): McClellan CJ at CL, Hall J, Price J

Background

The appellant, Warringah Council, prosecuted two respondents in the Local Court for 26 offences under the Food Act 2003, arising from alleged breaches of the Food Standards Code in the operation of a restaurant. The respondents were convicted. They then appealed to the District Court under the Crimes (Appeal and Review) Act 2001.

The District Court judge upheld the appeal on the basis that the Council had commenced proceedings invalidly. The judge found that because the Council issued court attendance notices (CANs) in its corporate name without first obtaining the signature of the Local Court registrar, the Local Court's jurisdiction had never been properly enlivened. The Council sought to have a case stated for the Court of Criminal Appeal to consider whether that finding was correct in law.

The stated question was whether the District Court judge erred in finding that the commencement of proceedings by the Council in its own name was invalid and of no effect.

  • Whether a local council, when issuing court attendance notices, is a "public officer" within the meaning of s 173 of the Criminal Procedure Act 1986, such that it may commence proceedings without first obtaining a registrar's signature.
  • Alternatively, whether the Council was required to comply with s 174, which applies to private prosecutors and mandates a registrar's signature before a CAN is filed.
  • Whether, if a registrar's signature was required but not obtained, that defect was capable of being cured under s 16 of the Criminal Procedure Act, so as to preserve the validity of the proceedings.

Decision

McClellan CJ at CL (with Hall J and Price J agreeing) concluded that the District Court judge had erred. The court answered the stated question "yes," meaning the commencement of proceedings by the Council was valid and effective.

The court's first finding concerned which provision governed the Council's conduct. Under s 173, a "public officer" may issue a CAN and commence proceedings without obtaining a registrar's signature. Section 3(1) of the Criminal Procedure Act defines "public officer" to include "an employee of a council." However, the Council itself, as a corporate entity, is not the same as an employee of a council. On that analysis, the Council as a body corporate did not fall squarely within the s 173 definition of "public officer."

Nonetheless, the court looked to the Local Government Act 1993, particularly s 684, which expressly permits proceedings to be brought in the name of the council. Read alongside the transitional provisions updating references from "laying an information" to "issuing and filing a court attendance notice," s 684(a) authorised the Council to issue a CAN in its corporate name. The court held that, given this specific statutory authority, the Council was not in the position of a purely private prosecutor required to obtain a registrar's signature under s 174. The purpose of s 174 is to impose a discipline on private prosecutions, not to restrict bodies expressly authorised by statute to prosecute in their own name.

Finally, the court addressed the curative provision in s 16 of the Criminal Procedure Act. Even if the absence of a registrar's signature constituted a defect, the court found it was procedural in nature, had occasioned no injustice to the respondents (who did not raise it until the District Court appeal), and did not affect the merits or the Council's underlying authority to prosecute. Applying the reasoning in Garrett v Freeman and Rockdale Beef Pty Ltd v Industrial Relations Commission, s 16(2) operated to preserve the validity of the proceedings.

Orders Made

  • The stated question was answered "yes" (the District Court judge had erred in finding the proceedings invalid).
  • The respondents were ordered to pay the appellant's costs of the stated case.

Key Takeaways

  • A local council bringing prosecutions in its corporate name is not a "public officer" as defined in s 3(1) of the Criminal Procedure Act 1986, because that definition refers to employees of a council, not the council itself as a body corporate.
  • Under s 684 of the Local Government Act 1993 (read with transitional provisions), a council has express statutory authority to issue and file court attendance notices in its own name, placing it in a different category from a purely private prosecutor.
  • Section 174 of the Criminal Procedure Act, which requires a registrar's signature before a CAN is filed, is directed at private prosecutors and does not apply to bodies with specific statutory authority to prosecute in their own name.
  • Where a registrar's signature was absent but the prosecuting body had lawful authority to bring proceedings, any defect was procedural rather than going to jurisdiction, and could be cured by s 16(2) of the Criminal Procedure Act provided no injustice resulted.
  • In assessing whether a defect is curable, courts consider the purpose of the requirement not complied with and whether the non-compliance caused substantive unfairness to the accused.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 3(1), 14, 16, 172, 173, 174, 177, 178
- Criminal Procedure Regulation 2005 (NSW)
- Local Government Act 1993 (NSW), s 684
- Food Act 2003 (NSW), s 21(1)
- Food Standards Code
- Crimes (Appeal and Review) Act 2001 (NSW), s 11(1)
- Environmental Planning and Assessment Act 1979 (NSW)
- Local Court (Criminal and Applications Procedures) Rule 2003

Cases
- Garrett v Freeman (2006) 147 LGERA 96; [2006] NSWCCA 278
- R v Janceski (2005) 64 NSWLR 10
- Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2007] NSWCA 128
- Knaggs v Director of Public Prosecutions [2007] NSWCA 83
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Corporate Affairs Commission v Bain (1991) 55 A Crim R 73
- Gardner v R [2003] NSWCCA 199
- Potier v Huber (2004) 148 A Crim R 399
- Sasterawan v Morris [2007] NSWCCA 185
- Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394
- Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441