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District Court 28 August 2013

Milson v R (No 4)

[2013] NSWDC 270

Fraud & dishonesty
CRIMINAL LAW PROCEDURE COURT ATTENDANCE NOTICE VOID DIFFERENT OFFENCE NOT AN AMENDMENT

Citation: Milson v R (No 4) [2013] NSWDC 270
Court: District Court of New South Wales
Date: 28 August 2013
Judge(s): Cogswell SC DCJ

Background

The appellant had been charged with a series of offences in April 2011. One of those charges alleged that he had dealt with property suspected of being proceeds of crime, contrary to section 193C(1) of the Crimes Act 1900 (NSW).

In December 2011, purportedly by consent, the prosecution filed an amended court attendance notice for that charge. This amended notice introduced new items of property, including a boat, a bike, and a television. It was filed after the relevant limitation period had expired.

The appellant was convicted but appealed, arguing that the December 2011 notice was not a valid amendment at all. He contended it was a fresh charge filed out of time, and that the earlier notice had itself been void for misstating the offence.

  • Whether the court attendance notice filed on 7 December 2011 was a valid amendment to the original charge, or a fresh charge for a different offence.
  • Whether the original charge was void as filed due to a misstatement of an element of the offence.
  • Whether section 21 of the Criminal Procedure Act 1986 (NSW) permitted the prosecution to amend a void court attendance notice.
  • Whether section 16(1)(b) of the Criminal Procedure Act assisted the prosecution by implying the particulars in the short form of the offence.

Decision

Cogswell SC DCJ held that the December 2011 court attendance notice was not an amendment to the original charge but a fresh charge entirely. The original charge under section 193C had concerned only toy cars. The new notice introduced a boat, a bike, and a television, none of which had previously been alleged as proceeds of crime under section 193C. Introducing entirely new items of property constituted a new charge, not merely an expanded particularisation of an existing one.

The original court attendance notice was also found to be void as filed. It had misstated the offence by including the element "knowing that it was the proceeds of crime," which is an element of a different offence (section 193B), rather than the correct element for section 193C: "being property that there are reasonable grounds to suspect is proceeds of crime." The only way to correct the notice was to delete the incorrect element and substitute the right one, which takes it beyond the reach of permissible amendment.

Relying on Mahoney JA's analysis in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, the court concluded that section 21 of the Criminal Procedure Act does not permit the amendment of a notice that is void for misstating the offence in this way. A notice that omits or misstates a statutory element cannot be saved by the amendment power.

The prosecution's alternative argument, that section 16(1)(b) implied the necessary particulars in the short form of the offence, also failed. The December 2011 notice did not briefly state the particulars of the original alleged offence as required by section 175(3) of the Criminal Procedure Act. It alleged a materially different offence. As the fresh charge was filed outside the limitation period, it could not stand.

Orders Made

  • The appeal was allowed.
  • The conviction was set aside.

Key Takeaways

  • A court attendance notice that introduces new items of property and different allegations under a distinct statutory offence constitutes a fresh charge, not an amendment to an existing charge.
  • Where an original notice misstates the offence by including an incorrect statutory element, it is void as filed and cannot be salvaged through the amendment power under section 21 of the Criminal Procedure Act 1986 (NSW).
  • Under the principle affirmed in Boral Gas, the amendment power does not apply where the defect requires deleting an incorrect statement of the offence and substituting a corrected one.
  • A fresh charge filed after the limitation period has expired is out of time and cannot be rescued by reference to an earlier, void court attendance notice.
  • The District Court confirmed that section 175(3) of the Criminal Procedure Act requires a court attendance notice to briefly state the particulars of the alleged offence. A notice that alleges a different offence does not satisfy that requirement.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 193B, 193C(1)
- Criminal Procedure Act 1986 (NSW), ss 16(1)(b), 20(1)(b), 21, 175(3)

Cases:
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 158