Marium v Van Zuylen [2024] NSWSC 258

Marium v Van Zuylen [2024] NSWSC 258 · Read the judgment on AustLII

Catchwords: Criminal Procedure – Court Attendance Notices – amendment or replacement in summary proceedings

In this decision a single judge of the Supreme Court has confirmed that a Court Attendance Notice (‘CAN’) can be replaced or amended at any time before a hearing by the issue of a new CAN, without leave being required. This is despite the words of the Criminal Procedure Act (‘the Act’) indicating, on their face, that a CAN is subject to the same procedures as an indictment.

The plaintiff was charged with negligent driving occasioning grievous bodily harm (‘GBH’), and dangerous driving occasioning GBH, with the charges to be dealt with in the Local Court. She applied for a stay of the proceedings, seemingly on the basis that they were an abuse of process; the applicant complained of a lack of particulars, but also what she described as ‘multiple indictments’. The application was refused by a magistrate. She appealed, self-represented, on a range of grounds, but this summary only deals with the assertion of multiple indictments. The matter was heard by Davies J, sitting alone.

Section 15 of the Act defines ‘indictment’ to include a CAN within that part of the Act. Section 20, in the same part, provides that an indictment cannot be amended after it is presented, except either with leave or consent. The applicant submitted that no leave had been obtained [one infers that consent was not forthcoming], with the effect that only the first CAN served upon her (alleging negligent driving occasioning GBH) had the force of law. She also submitted that the prosecutor was declining to indicate which of the five CANs were being pursued (there was an underlying issue about how many CANs she had received – see [29]).

The terms of s 20 of the Act raise the question of whether that section was intended to apply other than to indictments per se, by reason of the expansive definition in s 15. The term ‘court attendance notice’ appears in other parts of the Act in which the expanded definition of ‘indictment’ does not apply. Both Committal proceedings and Summary proceedings commence by a CAN, and there is nothing in those parts of the Act which prevents further CANs being issued after the first one. That is what happened in the present case: a separate (albeit related) criminal proceeding was commenced, namely dangerous driving occasioning GBH (at [31]). Nor is there any limitation in those parts of the Act about issuing further CANs which have the effect of amending or replacing an existing CAN (at [32]). Despite s 15, the provisions of s 20 are inapt to be referring to anything other than an indictment in the true sense of that term. That is because CANs are never ‘presented’ as true indictments are, and as s 20 envisages. Moreover, ss 17 and 18 (sections dealing with ‘demurrer’, or an allegation that the wording of the charge does not disclose an offence known to law) also appear in that part and set out procedures that only apply to true indictments (at [34]).

Generally speaking, a CAN may be ‘amended’ or replaced at any time before a hearing by the issue of a new CAN without leave being needed. Neither s 20, nor anything in Chapter 3 or 4 of the Act, provides otherwise and does not prevent that occurring (at [36]).

Against the possibility that he was wrong about this, his Honour considered whether it would have been appropriate to grant leave. In this case, although the first CAN only alleged negligent driving occasioning GBH, it has been clear from the time of service of the second CAN and certainly from the time of service of the brief (more than six months before the stay application) that the applicant was facing a second charge of dangerous driving occasioning GBH. In those circumstances there could be no basis for a refusal to amend the CAN if such an application was necessary and was made (at [43]). There was no abuse of process by the service of successive CANs which had the effect of adding one charge which arose from identical facts and thereafter from clarifying and adding to the particulars. There was no fundamental defect going to the root of the trial, so that the application for permanent stay should be rejected (at [45]).