8.1 When speaking earlier of our long term objectives, we referred to a proposal that some minor offences, especially those of a regulatory nature, should be removed from the category of crimes and be no longer subject to the procedures of the criminal courts. We return to this general in this Paper but, in this Part we consider some particular issues of a somewhat similar nature.

II. INFRINGEMENT NOTICES

A. Motor Traffic Offences ¹

8.2 For more than a decade, Parking and many other minor traffic of fences have been dealt with in this State by a “ticket” system or, as it is more correctly known, an “infringement notice” system. Where it appears to a police or other prescribed officer that an offence to which the system applies has been committed, the alleged offender in may then be given notice to that effect and of the prescribed penalty. The notice may, be given by, personal service, by, post, or, in some instances, by affixing the notice to a motor vehicle. The alleged offender has, then elect to pay the fixed penalty to the Police Department. If that is done, no summons is issued and the matter is closed. If the alleged offender does not pay in response to the infringement notice, a summons will be issued. If appearance is made in response to the summons, then the matter proceeds in court in the usual way. If the summons is served but there is no appearance, the court deals with the matter in the absence of the offender.

8.3 In 1981, traffic cases dealt with by summons totalled 370,006 and constituted 54.7 per cent of all cases dealt with in Courts of Petty Sessions and Children’s Courts. In 10 locations alone, the time of magistrates set aside for these cases was as follows:

Bankstown ... 3 days per week

Kogarah ... 2 days per week

Sutherland ... 2 days per week

Manly ... 2 days per week

Fairfield ... 3 days per week

Campsie ... 2 days per week

Parramatta ... 4 days per week

Penrith ... 2 days per week

Wollongong and Port Kembla ... 2 days per week

Castlereagh Street ... for each of 3 Magistrates, 5 days per week

On any working day in this State, the time of about 12 magistrates is fully devoted to traffic summons cases, and about 92 per cent of these cases relate to minor offences where the defendant does not appear in answer to a summons issued in consequence of non-compliance with an infringement notice. In the Castlereagh Street Court, each of the three magistrates spends some two hours a day on about 500 cases of this description. In addition to the time of magistrates, the time of police prosecutors, police witnesses, court officials and others is taken up by these matters. The annual cost to the State of dealing with these matters must be considerable.

8.4 We are told that consideration is now being given to the introduction of a system whereby infringement notices may be enforced otherwise than by court action. ² One reason for considering such a system is that the present congestion in the lists of Courts of Petty Sessions would be partly relieved if magistrates did not have to devote time to the thousands of cases in which defendants do not appear in answer to summonses.

8.5 We understand that this system would involve conferring power on a specially authorised Justice of the peace to make an order imposing a penalty on an offender on the basis of a certificate tendered by a police officer in accordance with the procedure set out below. We also understand that the system would allow an alleged offender to elect to have the matter dealt with in the usual way by a magistrate sitting in a Court of Petty Sessions.

8.6 In short, the system would operate as follows:

• Where the amount specified in a traffic infringement notice remained unpaid after the expiration of the period prescribed for payment, a letter (“the courtesy letter’) would be sent to the alleged offender advising the details of the alleged offence, requesting payment of the penalty within a further specified period, and informing him or her of the right to elect to have the matter determined by a magistrate.
• If the penalty remained unpaid at the expiration of the time specified in the courtesy letter, and if no election to be dealt with in court had by then been made, then at the request of an authorised police officer, a specially authorised justice of the peace would have power to make an order imposing the fixed penalty, ordering the payment of costs, and specifying a period of imprisonment in default of payment.
• Following the making of such order by the justice, a notice would be sent to the offender advising its terms.

8.7 The request of the authorised police officer referred to above would certify:

• that an infringement notice had been duly served upon the offender;
• that the details set out in the infringement notice were true and correct and constitute an offence;
• that the amount specified in the infringement notice had not been paid;
• that a courtesy letter had been forwarded to the offender;
• that all prescribed times had elapsed and the penalty remained unpaid; and
• that no request had been received for the matter to be determined by a Court of Petty Sessions.

The request would also contain an undertaking that payment, if subsequently tendered to the Police Department, would not be accepted.

B. Other Minor Offences

8.8 Subject to a defendant having the right to elect to have the proceedings disposed of by a magistrate in the usual way, we see many advantages, and few disadvantages, in extending the scope of this scheme to other minor offences, particulary those of a regulatory nature. When we speak of “other minor offences”, we have in mind offences such as littering, not registering dogs or not paying a public transport fare. There is, of course, scope for considerable debate about how far the concept of “a minor offence” should extend. Different views may well be held as to what offences are appropriate for an infringement notice procedure.

8.9 The principal advantage would be that much of the time of magistrates would be freed for more important matters. It has also been suggested that the cost of enforcement would be reduced, and that with enforcement proceedings likely to be closer in time to the commission of the offence, there would be greater prospects of the penalty being recovered.

8.10 The main disadvantage of the suggested infringement notice procedures is the possibility that a defendant might first become aware of the issue of a Warrant of Commitment only when a constable arrives to execute the Warrant. On the other hand, somewhat similar procedures have applied to parking and other minor traffic offences for more than a decade, and they seem to work in a generally satisfactory manner. Procedures providing for personal service of a notice of intention to execute a Warrant of Commitment could be devised without difficulty but, in practice, the cost and inconvenience of complying with them may well outweigh their benefits.

C. Issues

8.11 Issues on which we invite comment are:

• Whether any particular provisions are required to make the procedure more efficient or more equitable?
• Whether such procedures should be extended beyond parking and minor traffic offences and, if so, to what offences, or categories of offences, should they be extended?
• Whether, even if the “self enforcing” procedures are not adopted, the present infringement notice system ought to be extended to other offences and, if so, to what offences?

III. INDICTABLE OFFENCES WHICH MAY BE TRIED SUMMARILY

A. Introduction

8.12 We turn now to the jurisdiction of Courts of Petty Sessions to deal with indictable offences. We do so for the purpose of considering whether this jurisdiction should be enlarged. It seems clear that if the suggested procedure for “self-enforcing” infringement notices is adopted, part at least of the time of some magistrates will be freed for other work. In a later Paper, we will give particulars of the extensive delays which now occur in bringing criminal work before the higher courts of this State. If some of this work were disposed of in Courts of Petty Sessions, it is also reasonable to assume that these delays would be reduced.

8.13 We do not assert that the reduction or avoidance of delay is of paramount importance in determining the respective jurisdictions of our criminal courts. We do assert, however, that the reduction or avoidance of delay is one of many important matters which need to be considered in making these determinations.

8.14 As noted in paragraph 2.4, some indictable offences may be disposed of in Courts of Petty Sessions. Most, but not all of these offences are listed in either section 476 or section 501 of the Crimes Act, 1900. Those listed in section 476 may be dealt with summarily only if the defendant consents and the magistrate is satisfied that the case is one which may properly be disposed of summarily. On the other hand, when a defendant is charged under section 501 with an offence listed in that section it will be disposed of summarily whether the defendant consents or not.

8.15 The issues we raise in the context of indictable offences which may be tried summarily vary in complexity. Section 476 offences may be dealt with summarily only with the consent of the defendant, and no defendant would be deprived of the right to opt for trial by jury if the scope of that section were enlarged. The position is otherwise where the decision to proceed summarily is made by the prosecuting authority and the consent of the defendant is not required. Any enlargement of the scope of, for example, section 501 would deprive defendants charged under that section with the right to opt for trial by jury.

8.16 Issues of the kind we are now considering were given a great deal of attention in England in 1975. In that year, the Report of the Interdepartmental Committee on The Distribution of Criminal Business Between the Crown Court and Magistrates’ Courts (“the James Committee”) was published. The Report said:

“We think that small thefts should not be triable on indictment. We have come to this conclusion only after long and careful consideration of the cogent arguments for and against the proposal. In the last analysis, society has to choose between two conflicting aims. On the one hand is the existing right of the citizen to be tried by a judge and jury on any charge of theft or criminal damage, however small the amount involved. On the other is the right, especially important to anyone defending a serious charge, to be tried as soon as possible. These two requirements have to be met with resources which are finite and cannot be further expanded without limit At present, defendants on serious charges are suffering the injustice of long-delayed trial while the time of the Crown Court is partly occupied with minor cases of low monetary value. We consider that a change in this balance ... will ensure that the available resources are used so as to achieve better justice over the whole range of criminal charges and that the balance cannot be redressed in favour of quicker trial of serious charges without some loss of the existing choice for defendants against lesser ones.” ³

B. Section 476

Offences

8.17 The offences to which section 476 applies include:

• certain offences against property (for example, larceny, embezzlement fraud, malicious injury to property) where the value of the property, or the damage does not exceed $1,000;
• certain offences against the person (for example, indecent assault of a female, carnal knowledge, indecent assault of a male);
• certain offences of break, enter, and steal where the value of the property does not exceed $1,000;
• escape from lawful custom, and
• attempts to commit any of the above.

Penalties

8.18 The offences to which section 476 applies carry varying maximum terms of imprisonment or penal servitude, ranging from one year to 14 years. Where, however, any such offence is disposed of summarily under that section the greatest sentence which may be imposed is 2 years, or the maximum term fixed by law for the offence in question which ever is the less. The maximum fine which may be imposed by a magistrate under section 476 is $2,000, or the maximum fine fixed by law for the offence in question whichever is the less.

8.19 In deciding whether a particular case may properly be disposed of summarily under section 476, a magistrate will consider the penalty limitations to which we have referred. The same penalty limitations may also influence a defendant in deciding whether to consent to proceedings being disposed of summarily under the section.

Legislative History

8.20 The section is based on sections 18, 19 and 20 of the Criminal Law and Evidence Amendment Act of 1891 which in turn were based on provisions contained in the Criminal Law Amendment Act of 1883 and in Imperial Acts of 1855 and 1868. The effect of the sections was re-expressed in sections 476, 477, 478 and 479 of the Crimes Act 1900. Section 476 was amended in 1924, 1951 and 1965 and the present section is a substituted section introduced into the Act in 1974. After a somewhat similar history, sections 477, 478 and 479 were repealed in 1974 and much of their content included in the then substituted section 476.

8.21 The upper limit of $1,000 for offences against property first appeared in section 476 in 1974. In the Act of 1891, the comparable figure was 20. It became 100 in 1924, 250 in 195l, and, as mentioned, $1,000 in 1974.

8.22 The maximum term of imprisonment which a magistrate may impose under the section was 6 months in 1891, became 12 months in 1924, and two years in 1974. The maximum fine was 20 in 1891, 50 in 1924 and $2,000 in 1974.

8.23 The number of offences to which section 476 applies has increased Substantially over the years. In 1900, the Crimes Act of that year simply adopted the offences listed in the Act of 1891 with the result that only some 15 offences, or categories of offence, were included. Another 34 offences were added in 1924, and since then the list has grown to a present total of nearly 70.

8.24 In 1973, a Criminal Law Committee, under the chairmanship of Mr. G. Amsberg, Q.C., a retired Judge of the District Court, made recommendations in relation to section 476. The recommendations were incorporated in the Crimes and Other Acts (Amendment) Act, 1974. The main effect of the amendments was to bring additional offences within the application of the section. For the most part, the offences were those which were seen by the members of the Committee as being “minor” property offences, “minor” assaults, and “minor” unlawful use of vehicles. In the case of some sexual offences, the criterion used was the desirability of reducing the number of times an innocent victim would be compelled to tell his or her story to a court. ⁴

Section 476 in Practice

8.25 We cannot specify the extent to which cases are disposed of under section 476. We have made inquiries but even the detailed statistics kept by the Office of the Chairman of the Bench of Stipendiary Magistrates do not enable this information to be extracted. The impression we gain from our discussions with practitioners and magistrates is that the section is used extensively.

Issues

8.26 Issues on which we seek comment include the following:

• Whether there should be any change in the method of specifying the offences to which section 476 applies, and in particular, whether the legislation should continue to list specific offences or whether the application of the section to any offence should depend simply upon the prescribed penalty or some other criterion?
• Whether any of the offences now subject to the provisions of the section should be removed and whether any others should be included?
• If a property value limitation is retained, whether the present limitation remains appropriate, and if not, what change should be made?
• Whether the present penalty limitations remain appropriate, and if not, what change should be made?

C. Section 501

Offences

8.27 Section 501 applies only to a number of specified stealing offences, including some of stealing from the person. It operates only where the value of the property involved does not exceed $500.

Penalties

8.28 Where an offence to which section 501 applies is disposed of summarily under that section the maximum term of imprisonment which may be imposed is 12 months, and the maximum fine is $1,000.

Legislative History

8.29 Section 501 is an extension of provisions contained in Acts of 1853 and 1883. These Acts provided that offences connected with the unlawful taking or branding of cattle could be dealt with summarily, and were based on an Act then in force in Tasmania. Section 501 was re-expressed in 1924. The section then operated only where the value of the property involved did not exceed £10. The maximum term of imprisonment was then 12 months and the maximum fine was £50.

8.30 The maximum term of imprisonment has remained unchanged since 1924, but in 1974 the maximum fine was increased to $1,000. The property value limitation was increased from £10 to £50 in 1955 and from $100 to $500 in 1974.

Section 501 in Practice

8.31 As in the case of section 476, we cannot specify the extent to which section 501 is used in practice. Again the statistics kept by the Office of the Chairman of the Bench of Stipendiary Magistrates do not enable the information to be extracted.

Issues

8.32 Issues in respect of which we seek comment include the following:

• Whether the present property value limitation in section 501 remains appropriate, and if not, what change should be made?
• Whether the present penalty limitations in section 501 remain appropriate, and if not, what change should be made.
• Whether further indictable offences should be made triable summarily, without the consent of the defendant, and if so, how and in what sections (for example, section 501) should they be specified?

We repeat that these issues raise important questions including the right to trial by jury.

IV. SOME GENERAL ISSUES

Introduction

8.33 In concluding this chapter, we raise in very broad terms, three general issues. Each of them will be considered in detail in the course of further work on our criminal procedure reference. In the meantime, comments on them would assist that work.

B. Indictable Offences Which Ought to be Summary Offences

8.34 We have asked in this chapter whether there are any offences now triable only on indictment that ought to be made triable summarily, either with the consent of the defendant or in the discretion of the prosecutor. A further, and related, question is whether there are any indictable offences that ought to be triable only in a summary manner.

8.35 Suppose, for the purposes of illustration:

• that a Mr. Jones obtains a tyre for his motor car by passing a cheque for $50 and the cheque is not paid on presentation;
• that Mr. Jones asserts that he had reasonable grounds for believing that the cheque would be paid on presentation and that he had no intent to defraud; and
• that, if charged with the offence of passing a valueless cheque, Mr. Jones’ pleaded not guilty, and seek to have the charge heard before a judge and jury.

At present, Mr. Jones could be charged with the offence mentioned under either section 178B (the section which creates the offence of passing a valueless cheque) or section 501 of the Crimes Act, 1900. If charged under section 501, the charge must be disposed of summarily, and Mr. Jones will be denied a trial before a judge and jury. If, however, he is charged under section 178B, he will be able to insist on that trial even though it might appear to a magistrate that the case may properly be disposed of summarily under section 476 of the Crimes Act, 1900.

8.36 Should the mode of Mr Jones’ trial be within his discretion or that of his prosecutor or should the law itself say that trial by jury is never available for that kind of offence?

C. Trial by Judge Alone

8.37 If a person is charged with an offence listed in section 476 of the Crimes Act, 1900, he or she may have the choice of trial by magistrate alone or trial by judge and jury. Trial by judge alone is not an available choice. The position is different in Canada and New Zealand. In Canada, there is a large class of indictable offences for which, under federal law, an accused may elect his or her mode of trial. The class includes rape, bribery, criminal negligence and manslaughter. These offences may be tried, at the option of the accused, by judge and jury or by a single judge, unless, in limited cases (for example, murder, treason and hi-jacking), the Attorney General directs trial by judge. ⁵ In New Zealand, the Crimes Act 1961 was amended in 1979 to permit an accused to elect trial before a High Court judge alone, save in respect of offences for which the maximum punishment is death or life imprisonment, or imprisonment for a term of 14 years or more.

8.38 In New South Wales, the Supreme Court (Summary Jurisdiction) Act, 1967, permits a defendant to choose to be tried by a Supreme Court judge alone but only in respect of a limited class of offence, mainly those involving alleged conspiracies and “white-collar” crime, and only if the prosecution has elected to proceed under that Act There is no comparable provision in respect of other indictable offences.

8.39 Should the right to choose trial by a judge alone be extended to other indictable offences, and, if so, to which offences, and which procedural rules should then apply?

D. Trial on Indictment Leading to Conviction of Summary Offences

8.40 We have explained earlier that it is a long term objective to consider a proposal for a standard method of prescribing offences, one of the consequences of which would be to enable juries at trials on indictment to return alternative verdicts by which they acquit on the Indictable charge and convict of a summary offence. The intention is that this would do away with the necessity for a separate summary trial in respect of “backup” charges. The detail of hat proposal will be considered in a later Issues Paper. For the present, we invite comment on the advantages of the proposal in general terms and on any objection in principle that may be seen to it.

FOOTNOTES

1. The statements in para. 8.3 are based on NSW Court of Petty Sessions court statistics for 1981 supplied to us by the Office of the Chairman of the Bench of Stipendiary Magistrates.

2. Paras 8.4-8.7 are based on information supplied to us by officers of the Department of Attorney General and of Justice. We are responsible for any errors in our use of this material.

3. Report of the Interdepartmental Committee on the Distribution of Criminal Business Between the Crown Court and Magistrates’ Courts (HMSO, Cmnd. 6323, 1975), para. 87 (referred to in this Issues Paper as the “James Report”).

4. Criminal Law Committee Report on Proposed Amendments to the Criminal Law and Procedure (the “Amsberg Committee”), (NSW Govt Printer, 1973), p.13.

5. See Part XVI of the Criminal Code of Canada: ss.488, 490, 492 (election for trial); ss.488, 498 (speedy trial offences); s.498 (right of Attorney General to demand jury trial in some instances).