SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital TerritoryCitation: / [2016] ACTSC332
Hearing Date: / 10 November 2015
Date last submissions received: / 24 November 2015
DecisionDate: / 18 November 2016
Before: / Mossop AsJ
Decision: / See [114]
Catchwords: / CRIMINAL LAW – JURISDICTION – Application for prohibition directed to magistrate – Jurisdiction of Magistrates Court to hear charge – Whether charge may be formulated in short form authorised by statute – Whether defects in summons affect jurisdiction of magistrate when defendant has appeared
CRIMINAL LAW – CRIMINAL PROCEDURE – Speeding offence - Short form of offences specified by regulation – Whether information in short form sufficient – Whether information must also specify length of road where driver was driving – Short form sufficient – Whether particulars may be provided orally in court after plea has been entered
Legislation Cited: / Australian Road Rules, r 20
Court of Petty Sessions Ordinance (No 2) 1930(ACT), ss 12, 26-31, 30, 32-36, 38, 46, 50, 207, 228
Court Procedures Act 2004 (ACT), s 8
Director of Public Prosecutions Act 1990 (ACT), ss 6
Justices Act 1902 (NSW)
Legislation Act 2001 (ACT), ss 13,14, 40, 94, 185, 255
Magistrates Court Act 1930 (ACT), ss 9, 10M, 12, 19, 25, 26, 27, 27(2), 28, 30, 37, 38, 41, 116A, 116B, 228
Road Transport (General) Act 1999 (ACT), ss53, 54,60(1)(a), 75
Road Transport (General) Chief Police Officer Delegation 2006 (No 2)
Road Transport (Offences) Regulation 2005 (ACT), ss 5, 8, sch 1 pt 1.2
Seat of Government Supreme Court Act 1933 (Cth)
Statute Law Amendment Act 2005 (ACT)
Summary Jurisdiction Act 1848 (UK)
Summary Jurisdiction Act 1879(UK)
Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 6
Cases Cited: / Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Burnett v Brown (1929) 24 Tas LR 23
Businessworld Computers Pty Ltd v Telecom (1988) 82 ALR 499
Clayton v John L Pty Ltd(1984) 1 NSWLR 344
Cornwell v Curran [2006] ACTSC 119
Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379
Day v Rugala (1978) 20 ACTR 3
Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Ex parte Walker; Re Goodfellow (1944) 45 SR (NSW) 103
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Knaggs v Director of Public Prosecutions [2007] NSWCA 83
Lillyman v Pinkerton(1982) 45 ALR 543
Lillyman v Pinkerton (1982) 63 FLR 93
Martin v Shakespeare [1920] SALR 257
Oates v Williams (1998) 84 FCR 348
Peterson & Magistrate Soames; Ex parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291
Smith v Moody (1903) 1 KB 56
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
Re Reference under Ombudsman Act s11 (1979) 2 ALD 86
Texts cited: / Thomson Reuters, The Laws of Australia, vol 25
Parties: / Lindsay John Burridge (Plaintiff)
Chief Magistrates of the Magistrates Court of the Australian Capital Territory (First Defendant)
James McCue (Second Defendant)
Representation: / Counsel
Self-represented (Plaintiff)
J White SC (Second Defendant)
Solicitors
Self-represented (Plaintiff)
ACT Director of Public Prosecutions(Second Defendant)
File Number: / SC255 of 2015
MOSSOP AsJ:
Introduction
1.This is an application for an order to the same effect as a writ of prohibition to restrain the Chief Magistrate from proceeding to hear a speeding charge and a related charge of failing to provide information as to the identity of the driver of a vehicle. The application is based on a number of grounds, each of which asserts that her Honour would exceed her jurisdiction if, in the circumstances, she proceeded to hear the proceedings.
Proceedings in this court
2.The plaintiff, a retired legal practitioner, commenced these proceedings by originating application filed on 15 July 2015. The only defendant named in the proceedings was the Chief Magistrate of the ACT Magistrates Court.
3.The proceedings were first before me on 31 July 2015. I ordered at this point that the informant in the proceedings, James McCue, be included as the second defendant in the proceedings. At that stage it was anticipated that the plaintiff would also be commencing proceedings in relation to other proceedings in Magistrates Court. He did not ultimately do so. The proceedings were listed for hearing and were heard on 10November 2015.
4.In advance of the hearing, in accordance with the directions of the Court, the following written submissions were filed:
(a)the second defendant’s submissions filed 17 September 2015;
(b)the plaintiff’s submissions in reply filed 23 October 2015;
(c)the plaintiff’s further submissions in reply filed 26 October 2015.
5.At the hearing on 10 November 2015 the plaintiff relied upon his own affidavits dated 15 July 2015 and 31 August 2015, which contained a mixture of evidence and submissions.
6.The defendant relied upon the affidavits of Diana Likeman dated 30 July and 17 September 2015.
7.Neither deponent was required for cross-examination.
8.At the conclusion of the hearing on 10 November 2015 directions were made relating to the filing and service of written submissions relating to certain provisions of the Magistrates Court Act 1930 (ACT) (MC Act) and the decision otherwise reserved. Written submissions were filed on 17 November 2015 (plaintiff), 23 November 2015 (second defendant) and 24 November 2015 (plaintiff).
9.The evidence was inadequate to the extent that it did not include the transcript of proceedings on 13 May 2015 and, more importantly, did not include the transcript of the reasons for decision given by the Chief Magistrate on 10 June 2015. The significance of these dates will become apparent in the light of the chronology of proceedings in the Magistrates Court.
Chronology of the proceedings in the Magistrates Court
10.In order to understand the nature of the application and the grounds set out in the originating application it is necessary to set out a chronology of events surrounding the proceedings in the Magistrates Court. The proceedings in the Magistrates Court involved two charges against the plaintiff, a speeding charge (CC2014/5882) and a charge of failing to provide a written statement about the name and address of the driver of a vehicle (CC2014/10654).
25 March 2014
/Date of alleged breach of r20 of the Australian Road Rules
13 June 2014
/Date of summons in relation to charge CC 2014/5882.
That he in the Australian Capital Territory on 25 March, 2014, in a non-school zone, did exceed the speed limit by greater than 15 km/h but equal to or less than 30 km/h15 June 2014
/The summons was served on Mr Burridge at his home.
8 August 2014
/The proceedings were first before the Magistrates Court and the plaintiff entered a plea of not guilty.
15 August 2014
/Unsigned letter from the informant to Mr Burridge including demand under s60(1)(a) of the Road Transport General Act 1999 (ACT) that he identify the driver of his motor vehicle at “6.53pm on Thursday 25 March 2014” and provide a written statement to the informant within 14 days.
14 November 2014
/Date of charge CC 2014/10654:
That he in the in the [sic] Australian Capital Territory on 28 August, 2014, the responsible person for a vehicle, did not give a written statement about the driver to a police officer when required.23 April 2015
/Hearing before Chief Magistrate (described in more detail below). Applications by Mr Burridge to dismiss the proceedings dismissed. Application by Mr Burridge to discharge subpoena to his wife Sina Burridge dismissed. Proceedings adjourned to permit further argument as to the validity of the summons. Written admission given by Mr Burridge in the following terms:
Further to my agreement with the DPP today for the subpoena of Sina Burridge to be discharged, I acknowledge that vehicle YEY40N driven on Thursday 25th of March 2014 was driven by me.13 May 2015
/Further oral submissions by Mr Burridge. The transcript of these submissions is not in evidence. The prosecution was permitted to file written submissions in reply.
10 June 2015
/Chief Magistrate gives her decision on the validity of the summons. A transcript of her Honour’s reasons is not in evidence in these proceedings. The submissions filed by the respondent say: “10 June 2015 Her Honour found that the presumption of regularity applies, the summons was validly issued and served in time and there had been no abuse of process. She stated that the subpoena of Sina Burridge had not been discharged.”
15 July 2015
/Originating application filed.
30 July 2015
/Date upon which Magistrates Court proceedings had been listed for hearing, but which was vacated due to the filing of the originating application in this Court.
The proceedings on 23 April 2015
11.The only transcript of the proceedings before the Chief Magistrate that was in evidence in this Court was the transcript of the proceedings on 23 April 2015 when the proceedings had been listed for hearing. Mr Burridge appeared in person. MsLikeman appeared to prosecute. Mr Burridge made two applications:
(a)first, that both informationsbe dismissed because they involved an abuse of process; and
(b)second, that a subpoena to his wife, Sina Burridge, be set aside.
12.So far as the second of these was concerned, the application appears to have been based on the proposition that Mrs Burridge was not a compellable witness in the case against Mr Burridge. Her Honour declined to hear Mr Burridge in support of the application as the application had been made by his wife and she was not present. So far as the application based upon the submission that the proceedings involve an abuse of process was concerned, her Honour rejected that application for three reasons.
13.First, the Director of Public Prosecutions was properly entitled to take over the proceedings commenced by an informant pursuant to s6 of the Director of Public Prosecutions Act 1990 (ACT).
14.Second, the use of the power under s60 of the Road Transport (General) Act 1999 (ACT) (RTG Act) was part of the investigative process and there was no impropriety in terms of the timing of the making of the request.
15.Third, there was no abuse of process involved in the Australian Federal Police (AFP)running an adjudication system in relation to the traffic infringement notice as well as the availability of the judicial process.
16.Mr Burridge then applied for an adjournment of the proceedings. The Chief Magistrate heard submissions from Mr Burridge and the prosecutor. Her Honour granted an adjournment until 2.15 pm.
17.At 2.15pm the prosecutor indicated that she would commence her case without a formal opening. The Chief Magistrate explained to Mr Burridge the way the proceeding wouldwork and, in particular, the burden on the prosecution to prove the matter beyond reasonable doubt. At that point Mr Burridge said that there were some legal points he wished to raise. He then proceeded to raise a number of legal points.
18.He contended that he had not been properly served pursuant to pt 3.7 of the MC Act. This is a part of the Act (ss 116A – 116I) which provides for “Service and pleading by post for certain offences”. In relation to the submission that he had not been properly served, her Honour asked “What does it matter; you’re here.” Mr Burridge made submissions as to why pt 3.7 was not complied with. Her Honour, in the course of argument, expressed the view that the procedure that Mr Burridge relied upon was an optional procedure, not a mandatory form of service. Mr Burridge treated that as a ruling and moved onto his next point.
19.The next point was based on the decision of the High Court in John L Pty LtdvAttorney-General (NSW)[1987] HCA 42; (1987) 163 CLR 508 (John L). At that point the prosecutor applied, as she had earlier foreshadowed, to amend CC 2014/10654 so that it identified the date of the offence as “between 20 August 2014 and 3 September 2014”. Mr Burridge opposed that amendment and submitted that the amendment represented an injustice to him because the information was now different to that which it had been for more than a year and it was being changed at the last moment. Her Honour allowed the amendment.
20.Mr Burridge then submitted in relation to CC 2014/5882:
(a)The information was not properly sworn because there was no signature by the informant, the identity of the deputy-registrar signing it was not disclosed and s30 of the MC Act required that it be in writing and on oath. He submitted that the face of the document needed to show that it had been sworn.
(b)The information was defective because the charge of a contravention of r20 of the Australian Road Rulesdid not identify “the length of road” where the driver was driving. He developed that submission by reference to the decision in John L.
21.When hearing the submissions in reply from the prosecutor the Chief Magistrate asked about provisions in the road transport legislation that permitted the charging of offences under the Australian Road Rules in abbreviated form. Reference was then made to s75 of the RTG Actand the provisions of pt 1.2 of the Road Transport (Offences) Regulation 2005(ACT).
22.Mr Burridge submitted that the provisions of that regulation only related to the element of speed and did not have the effect that it was possible to omit one of the basic elements of an offence. He submitted that it was the element that was being abbreviated rather than the whole charge.
23.Her Honour ruled that she was bound by the provision that permitted charges to be made in an abbreviated form. However, she asked the prosecutor to particularise the stretch of road upon which the offence was alleged to occur. The prosecutor did that, identifying Clift Crescent in Richardson between Ashley Drive and Johnson Drive.
24.HerHonour then turned to the information in CC2014/10654 and whether or not that charge had been adequately particularised. As a result of a discussion with her Honour,Mr Burridge indicated that he wished to preserve his position in relation to that argument and did not wish for it to be dealt with as a preliminary point.
25.Her Honour then returned to the final matter, namely, whether or not the summons and information were “properly either sworn or affirmed, such that they can be proceeded with”. The prosecutor submitted that the summons in CC 2014/5882was based on information sworn on 13 June 2014. She submitted that there was no need to go behind the signed summons. It appears from the interchange between her Honour, MrBurridge and the prosecutor that the issues that were identified were whether or not there was a requirement that the signature of the police officer appear on the document and whether or not it was necessary that the identity of the deputyregistrar be disclosed on the document.
26.At that point her Honour raised the possibility that Mr Burridge may wish to give further consideration to the statutory provisions that may be relevant and Mr Burridge raised the fact that he was feeling unwell. Her Honour made it clear that the one issue that she was satisfied still remained undetermined was whether the summons and information were defective. Arrangements were then made to have the preliminary issue further heard prior to commencement of the hearing proper. The proceedings were adjourned until 13 May 2015 part heard before the Chief Magistrate. Just before the conclusion of the proceedings Mr Burridge’s admission that he was the driver of the vehicle was tendered and became Exhibit 1.
27.As pointed out above, there is no transcript of the submissions made by Mr Burridge on 13 May 2015. The written submissions of the prosecution in reply to those submissions were in evidence. There is no transcript of the reasons of the Chief Magistrate for her decision rejecting Mr Burridge’s application in relation to the form of the summons.
Grounds for judicial review
28.The originating application filed 15 July 2015 sought an order in the nature of and to the same effect as awrit of prohibition directed to the Chief Magistrate of the Magistrates Court of the Australian Capital Territory prohibiting her from hearing two criminal charges CC 2014/5882 and CC 2014/10654.
29.The grounds of the application are set out in the originating application as follows.
1.1 In respect of CC 2014/5882 (attached marked “A”) jurisdiction has not been founded or vested in the Magistrates Court.
1.2 The information does not provide me with the substance of the charge which I am called upon to meet, including identification of the essential factual ingredients. An essential factual ingredient in Australian Road Rule 20 is “the length of road where the driver is driving”. Besides not specifying the length of road, the information did not even include the above words so as to give at least a clue as to the existence of that ingredient. The words “In the Australian Capital Territory” are otiose; the matter could not but be in the A.C.T.
1.3 The information is technically and formally defective. It has not been duly sworn or even signed, or dated undermentioned or otherwise (since any recital of a fact is dependent upon the manifest existence of that fact), all without identified hand as to its attestation. The copy of CC 2014/5882 served on me is the same as the court copy.
1.4 Further, the information has not been laid pursuant to Road Transport (General) Act 1999 subs 53(2). S. 54 provides for delegation and sub delegation. An act done in purported exercise of a statutory power is valid if it falls within the statutory [sic] which confers the power; validity is thus dependent upon the identity of the authority and the doer of the act. Identity in this sense means the quality or condition of being the same: SOED 1. Any power derived through S. 54 must be precisely expressed in and at the purported exercise of that power for it to be valid; and thus the information does not so express.
1.5 Notwithstanding submission to the defendant as set out above, she decided on 10.6.15 to set both matters down for evidentiary hearing on 30.7.15, so in effect determining that jurisdiction had been founded or vested in the court.
1.6 The defendant in that decision confirmed a ruling she had made on 23.4.15 that so-called particulars that she had irregularly elicited from the prosecutor sufficed to overcome objections that I had made. Attached marked “B” to “G” are the relevant pages of the transcript on 23.4.15 setting out that ruling and its circumstances. The defendant erred in allowing any particularisation where the res to which this can attach does not exist. That this error effectively constituted ignoring a High Court of Australia decision will be addressed in my affidavit.
1.7 Another readily identifiable major error of the defendant is as to so misinterpret that decision and other precedent as is evident from the transcript of 23.4.15. This is shown by the attachments marked above where in irregular and partisan manner the defendant invokes S. 75 of the Road Transport (General) Act 1999 together with Schedule 1, Part 1.2 of the Road Transport (Offences) Regulation 2005 so as to amount to statutory supplanting of the principles of that High Court case: John L Pty Ltd v Attorney-General (NSW) 163 CLR 508.Apart from standard canons of statutory interpretation, the principle of proportionality in relation to delegated legislation renders this construction untenable. The defendant has conflated the function required to found or invest jurisdiction of informing a court of the precise identity of the offence with which it is required to deal with the function of requiring identification of the essential factual ingredients.