Conditional appearances

The Criminal Procedure Act 2009 will maintain the 12-month-limitation period for commencing summary criminal proceedings. The current limitation period is at s 26(4) of the Magistrates’ Court Act 1989. (Criminal Procedure Act 2009 s 7 will replace that later this year.)

(Colloquially, this is often called the statute of limitations. But pedantically, the statute of limitations is in fact the Limitation of Actions Act 1958, which prescribes limitation periods for various civil actions.)

edit A friend at the Bar pointed out I missed the effect of s 376 of the Criminal Procedure Act 2009. That will insert a new s 344A into the Children, Youth and Families Act 2005, providing for a six-month limitation period for summary charges against children unless the Court extends that time, or the child accused and police agree.

Individual exceptions exist, such as the Drugs, Poisons and Controlled Substances Act 1981 s 45 and Local Government Act 1989 s 232. Both provide for a three-year limitation period to commence summary prosecutions.

One consequence of this limitation period is the legitimate tactic for an accused person to wait for the limitation period to expire before seizing on a deficiency in a charge for a summary offence. This is because in some cases amending a charge is akin to laying a fresh charge — and that can’t be done outside the limitation period.

A similar consequence can occur when the summons compelling an accused person to attend court is defective.

Currently, Sch 5 of the Magistrates’ Court General Regulations 2000 prescribes the use of Form 7 — Charge and Summons when summoning an accused person to court. There is no form for a summons alone. (It seems there will be a stand-alone summons under Criminal Procedure Act 2009 s 13.)

There’s no authority to definitely say a new summons can be issued, but after reading DPP v Hogg (2006) 162 A Crim R 564; [2006] VSC 257 and Murdoch v Smith (2006) 15 VR 186, I think it probably can.

In any event, if the accused person wants to claim they are not properly or legitimately summoned to court they should enter a conditional appearance or an appearance under protest. That means though the accused turns up to argue if the summons is valid, they aren’t impliedly accepting its validity or waiving any defect, and can later ask the court to set aside the summons or declare it invalid: Flaherty v Girgis (1987) 162 CLR 574 at 586; [1987] HCA 17 at [13].

If the accused doesn’t appear under protest until an advanced stage of proceedings, then the court might consider they did submit to the court’s jurisdiction: Guss v Magistrates’ Court [2003] VSC 365 at [11].

Duncan v Demir [2009] VSC 37 is an illustration of this last principle.

Mr Duncan was a Department of Infrastructure (now the Department of Transport) employee entitled to prosecute certain offences by s 77 of the Road Safety Act 1986. Mr Demir claimed there was no evidence Mr Duncan was duly authorised. The magistrate accepted that argument.

On appeal, at [43] – [46], the Supreme Court affirmed the importance of the accused person properly announcing they appear under protest and specifying their objection, applying DPP v Sher [2000] VSC 268 at [160]:

In my opinion if a party contests the issue of a summons, it must appear under protest and state the objection at the time so that if it has any substance, it can be debated and resolved as a preliminary issue. If there was any substance in the point, defence counsel should have raised it at the outset. It is not appropriate to appear under protest without stating the basis of the objection.

Leave a Reply