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Saturday, 24 April 2010

DPP v Twigg & Anor [2010] VSC 145: ticking the boxes

The Supreme Court recently ruled in DPP v Twigg & Anor that the failure of a police informant to tick a box on the charge and summons document did not lead to the invalidity of process, and remitted the matter to the Magistrates' Court to be dealt with according to law.



Barrister Warwick Walsh-Buckley had argued before a magistrate that the failure of the informant to tick a box marked 'police informant' meant that a true copy of the summons had not been served pursuant to the Magistrates' Court Act 1989. The magistrate did not decide that question but instead struck the matter out on the basis that the summons had not been validly issued.



Bell J rejected both propositions.



7 In Director of Public Prosecutions v Diamond, Kaye J decided that, under reg 302 of the Magistrates’ Court General Regulations 2000, as long as the summons had been signed, failing to tick the officer designation box did not mean the summons was invalid.



8 I would follow this decision unless it was clearly wrong. Far from that, I respectfully agree with Kaye J. The present case is covered by r 2.02(a) of the Magistrates’ Court (Criminal Procedure) Rules 2006. That is not a distinguishing feature. The rule is in the same terms as the regulation considered by his Honour.



9 Under r 2.02(a), a summons signed by an authorised officer, and otherwise in proper form, is validly issued even if the officer designation box is not ticked. The process for commencing a prosecution is not invalid because a summons in such a form is served on the defendant. The summons served on Mr Twigg in the present case falls into this category. It, and the process of commencing the prosecution, was valid.

and



11 I will determine this issue because, if the summons has not been properly served, I would exercise my discretion to decline to grant judicial review. The prosecution would be bad, but not for the reason determined by the magistrate.



12 Mr Twigg submitted that a defendant needed to know the designation of the issuing officer for a number of important procedural reasons. Accepting that principle, I think Mr Twigg had three straightforward ways of obtaining this information.



13 First, the box next to ‘S 30’ was ticked. This referred to the procedure in s 30 of the Magistrates’ Court Act. A simply inquiry of the court, or of a source of legal advice, would have revealed that this procedure is used by members of the police force, such as the informant in the present case, to issue a summons. Secondly, as I have said, the signatures on the served summons reveal it was signed and issued by the informant. Thirdly, if Mr Twigg was in any doubt, he could simply have contacted the court or searched the file. As the officer designation box had been ticked on the court copies, this would have confirmed the informant had issued the summons.



14 In any event, I do not accept that to serve a copy summons (otherwise in proper form) without the officer designation box ticked is not to serve a ‘true copy’ of the issued summons. This is not a case like Nitz v Evans where, contrary to r 2.02 of the Magistrates’ Court Civil Procedure Rules, the served summons had not been signed. This is a case where, as required by s 34(1)(b)(i) of the Magistrates Court Act, the summons served on Mr Twigg was a signed copy. As Hayne J held in Nitz v Evans, the requirement is for service ‘of a copy which will show to the defendant [the] fact of issue.’ That was what the summons served here did. For these reasons, I conclude the signed copy of the summons served on Mr Twigg was, as required, a ‘true copy’ of the summons which was issued.




Section 30 of the Magistrates' Court Act has now been repealed and replaced by s 14 of the Criminal Procedure Act 2009.

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