Citation: New South Wales Electoral Commission v Evers [2012] NSWLC 14
Court: Local Court of New South Wales
Date: 12 October 2012
Judge: Magistrate Bradd
Background
The NSW Electoral Commission commenced proceedings against a defendant for failing to vote at the Waverley Hunter Ward Local Government By-Election held on 4 June 2011. The court attendance notice (CAN) named section 120F of the Parliamentary Electorates and Elections Act 1912 as the statutory provision describing the offence.
At the hearing, the prosecutor's counsel clarified that the charge was actually intended to be brought under the Local Government Act 1993, not the Parliamentary Electorates and Elections Act 1912. The defendant contended that the CAN was defective and could not simply be corrected, and that the prosecution should withdraw and re-serve the notice.
The core dispute was whether the incorrect statutory reference in the CAN was a minor defect that could be ignored under section 16(2) of the Criminal Procedure Act 1986, or whether it represented something more fundamental that prevented the court from proceeding.
Legal Issues
- Whether an incorrect reference to the wrong Act in a court attendance notice constitutes a curable defect under section 16(2) of the Criminal Procedure Act 1986
- Whether the offence that could be established by the evidence (under the Local Government Act 1993) was the same as or different from the offence actually charged (under the Parliamentary Electorates and Elections Act 1912)
- What category of liability (strict or absolute) applied to the compulsory voting offence under the Local Government Act 1993
Decision
Magistrate Bradd accepted that section 16(2) of the Criminal Procedure Act 1986 can allow courts to disregard defects in a CAN, including incorrect references to the wrong legislation. This principle was confirmed in Wehebe v Voulgarakis, where an offence had been re-enacted from a repealed Act into a new Act in identical terms. The crucial limiting principle from that case, however, is that a court cannot convict a defendant of an offence established by the evidence if that offence is different from the one charged.
The Magistrate compared the elements of the offence under both Acts and found material differences. The Parliamentary Electorates and Elections Act 1912 creates a general obligation on electors to record their vote, whereas the Local Government Act 1993 imposes the obligation specifically on persons on the residential roll in respect of a ward or area at a contested election. The procedural requirements, evidentiary provisions, and penalty notice regimes also differed between the two Acts.
On the question of liability, the Magistrate found that the Local Government Act 1993 offence is one of strict (not absolute) liability. Citing the framework from Proudman v Dayman as applied in Hickling v Laneyrie, the Magistrate reasoned that an honest and reasonable mistake of fact could operate as a defence, and that the Act's structure, which allows a defendant to offer a sufficient reason for not voting, is consistent with strict liability. The comparable structure of the Commonwealth compulsory voting offence, which expressly attracts strict liability by statute, reinforced this conclusion.
The Magistrate concluded that the defect in the CAN could not be remedied under section 16(2), because the offence potentially established by the evidence (under the Local Government Act 1993) was a different offence from the one charged (under the Parliamentary Electorates and Elections Act 1912). Furthermore, by the time of the decision, the 12-month limitation period under section 693 of the Local Government Act 1993 had expired, barring any fresh prosecution.
Orders Made
• The defect in the court attendance notice cannot be dealt with in accordance with the Criminal Act 1986
• Prosecution under the Act is statute barred
Key Takeaways
- Section 16(2) of the Criminal Procedure Act 1986 permits a court to disregard defects in a court attendance notice, including references to the wrong legislation, but only where the offence established by the evidence is not different from the offence charged.
- Where the statutory provisions cited and the provisions actually applicable create offences with different elements, the defect is not merely formal: it is substantive and cannot be cured by section 16(2).
- The Local Government Act 1993 compulsory voting offence is one of strict liability, meaning an honest and reasonable belief in a mistaken fact may provide a defence, unlike an offence of absolute liability where no such defence is available.
- Prosecutors filing court attendance notices for election-related offences must identify the correct statutory provision from the outset, because the Local Government Act 1993 imposes a 12-month limitation period on prosecution, and an uncorrectable defective notice may leave no time to re-commence proceedings.
- The decision confirms the continuing relevance of Wehebe v Voulgarakis as the leading authority on when defects in charging documents can be treated as mere formalities and when they cannot.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 15(2), 16(2)
- Parliamentary Electorates and Elections Act 1912 (NSW), ss 120C, 120D, 120E, 120F
- Local Government Act 1993 (NSW), ss 312, 313, 314, 693
- Local Government Act 1919 (NSW)
- Commonwealth Electoral Act 1918 (Cth), s 245
- Fines Act 1996 (NSW)
Cases:
- Wehebe v Voulgarakis (NSWSC, Studdert J, 22 October 1991, unreported); (1991) 9 Petty SR 4363
- Hickling v Laneyrie (1991) 21 NSWLR 730
- CTM v R [2007] NSWCCA 131
- CTM v The Queen [2008] HCA 25