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Tuesday, 6 October 2009

Are you being served?

A charge is the foundation for a summary court's jurisdiction to try an accused person.

The charge must be brought to the accused's notice, by either serving a summons or executing a warrant (or a notice to appear).

Usually, a summons must be served personally as required, though it may be posted in some cases.

But a person who lays a charge always has the option to apply for substituted service when appropriate, under Magistrates' Court Act 1989 s 34(2), or soon, Criminal Procedure Act 2009 s 345, which provides:

345. Order for substituted service

If it appears to a court by sworn evidence, whether oral or by affidavit, that service cannot be promptly effected, the court may make an order for substituted service.

For whatever reason, it's pretty unusual to see substituted service in summary criminal cases. (Well, in my experience anyway.) Part of it might be the general conservatism of the law and prosecuting agencies cautious not to jeopardise prosecutions — especially those that are subject to strict time-limits.

It might also be partly due to the lack of viable alternatives. It's been possible for a decade in Victoria to serve criminal process electronically, under the Electronic Transactions (Victoria) Act 2000 s 8, but validity required consent of the recipient. But, the internet is providing some new options.

Last year Master Harper of the ACT Supreme Court ordered substituted service of a default judgment by Facebook. (But see the comments by Peter Black — from the blog Freedom to differ — and Nick Abrahams.)

In March this year, the New Zealand High Court also permitted service of process using Facebook.

In Help Asteron Life Ltd v Franck [2009] NZHC 450 the NZ High Court granted substituted service on a gmail email address.

And last month slaw.ca reported a Facebook-service order granted by an Alberta court.

(If you've checked the hyperlinks above, you're probably wondering why I'm linking to the web articles and not primary sources: because decisions about service are interlocutory, it's rare to see them dealt with in judgments.)

And The Times Online reports on 1 October 2009 the UK High Court ordered service of an injunction by Twitter!

Will we see criminal courts accept these alternative forms of service in suitable cases?

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