Citation: Director of Public Prosecutions (NSW) v Sinton [2000] NSWSC 473
Court: Supreme Court of New South Wales, Common Law Division
Date: 31 May 2000
Judge(s): O'Keefe J
Background
The defendant was involved in a fatal motor vehicle accident in November 1997. He was charged with two indictable offences under the Crimes Act 1900 (driving in a manner dangerous, occasioning death and grievous bodily harm respectively) and one summary offence of negligent driving under the Traffic Act 1909. The negligent driving charge was intended to operate as a "back-up charge," meaning a lesser summary offence arising from the same facts as the indictable charges.
At the committal hearing in September 1998, the prosecutor verbally indicated that the negligent driving charge was a back-up charge but failed to produce the certificate required by the Criminal Procedure Act 1986 formally designating it as such. The court accepted this occurred because the provisions were relatively new and the prosecutor was unaware of them.
Following a District Court trial in July 1999, the jury returned directed verdicts of not guilty on both indictable charges. No application was made in the District Court to deal with the negligent driving charge at that point. When the summary charge was subsequently re-listed in the Local Court, the Magistrate permanently stayed the prosecution. The DPP appealed to the Supreme Court seeking to have that stay set aside and the matter remitted.
Legal Issues
- Whether the failure to produce the required certificate under s 34A(1)(b) (later renumbered s 36(1)(b)) of the Criminal Procedure Act 1986 at the time of committal was a breach of a mandatory or merely directory provision, and what consequences flowed from that failure.
- Whether non-compliance with the statutory certification requirement deprived the Local Court of jurisdiction to hear the negligent driving charge, or otherwise provided a ground for a permanent stay.
- Whether the Magistrate's decision to permanently stay the prosecution was a proper exercise of discretion that the Supreme Court was entitled to review and overturn.
Decision
O'Keefe J examined the legislative history of Part 10 of the Criminal Procedure Act 1986, which was inserted in 1990 to address a recognised gap in procedure. Before 1990, back-up summary charges had to return to the Local Court after acquittal on indictable charges, creating inefficiency and potential unfairness. The 1990 amendments gave the Supreme Court and District Court a discretionary power to deal with related summary offences at the conclusion of a trial, provided both the prosecution and the defendant consented.
His Honour considered whether the obligation to produce the certificate was mandatory (meaning non-compliance would invalidate subsequent proceedings) or merely directory (meaning non-compliance would not automatically render proceedings void). Applying the approach from Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355, the court assessed the purpose of the legislation. O'Keefe J concluded that the certification requirement was designed to protect defendants by ensuring they were on notice that a summary charge would be dealt with in the higher court. Because the protective purpose of the provision existed for the benefit of the defendant, the defendant could waive its benefit under the maxim quilibet potest renunciare juri pro se introducto (a person may renounce a right introduced for their own benefit). Non-compliance did not deprive the Local Court of jurisdiction.
On the question of the permanent stay, O'Keefe J found that the Magistrate had properly exercised his discretion. Applying the principles in House v The King (1936) 65 CLR 499, an appellate court may only interfere with a discretionary decision where error is established, such as acting on a wrong principle, being influenced by irrelevant matters, mistaking the facts, or failing to consider a material factor. The court found no such error in the Magistrate's reasoning. Accordingly, there was no proper basis to disturb the stay, and the DPP's summons was dismissed.
Orders Made
- The summons was dismissed.
- The plaintiff (the DPP) was ordered to pay the defendant's costs.
Key Takeaways
- A statutory requirement that the prosecution produce a certificate designating a summary charge as a back-up charge was held to be a directory rather than mandatory provision, meaning failure to comply did not void subsequent proceedings or deprive the Local Court of jurisdiction.
- Where a procedural requirement exists for the benefit of a defendant, the defendant may waive compliance with it under the principle expressed in the maxim quilibet potest renunciare juri pro se introducto.
- Under the Project Blue Sky approach, the consequences of non-compliance with a statutory requirement are determined by the purpose of the legislation and the legislative scheme as a whole, not simply by whether the provision uses imperative language.
- In reviewing a discretionary decision to permanently stay proceedings, an appellate court must identify a recognised category of error before substituting its own view; disagreement with the outcome alone is insufficient.
- No error was established in the Magistrate's exercise of discretion to permanently stay the negligent driving prosecution, and the Supreme Court declined to interfere.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), Part 10, ss 34, 34A, 35, 36
- Criminal Procedure Legislation (Amendment) Act 1990 (NSW)
- Crimes Legislation Amendment Act 1998 (NSW), Schedule 1
- Crimes Act 1900 (NSW), s 52A(1), (3)
- Traffic Act 1909 (NSW), s 4(1)
- Constitution Act 1902 (NSW)
Cases
- Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355
- House v The King (1936) 65 CLR 499
- Jago v District Court (NSW) (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Dietrich v The Queen (1992) 177 CLR 292
- Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
- Tasker v Fullwood (1978) 1 NSWLR 20
- Clayton v Heffron (1960) 105 CLR 214
- Barwick v Law Society of NSW (2000) 169 ALR 236
- James v Ronald (1958) 75 WN (NSW) 473
- Barron v Attorney General (NSW) (1987) 10 NSWLR 215