Essential Guide

What to expect when a penalty notice is court elected – guide for Council investigation officers

WRITTEN BY Tomas Bush & Alice Menyhart

This essential guide briefly sets out what you can expect in Local Court Proceedings which arise when a person elects to have a charge described in a PIN dealt with by the Court.   

Authorised Council staff regularly issue penalty infringement notices (PINs) in response to minor breaches of legislation administered by the Council.  A PIN requires the recipient to pay a relatively small fine, by way of a penalty for commission of the offence.  However, sometimes a person who receives a PIN will elect to have the charge described in the PIN dealt with by the Local Court rather than pay the fine.  When this occurs, Revenue NSW will prepare and arrange for the issue of a Court Attendance Notice (CAN) to the Defendant. The CAN has the effect of commencing summary criminal proceedings in the Local Court against the recipient of the PIN in the Council’s name, and effectively replaces the PIN.

Prior to the first mention 

After Revenue NSW receives notice that the recipient of the PIN has elected for the matter to be dealt with by the Court it will give notice to the Council and send the Council a notice of listing specifying the time and place for the first mention.

Prior to the first mention the Council should obtain a copy of the CAN issued by the Court. Sometimes a copy of the CAN will need to be sought from the Local Court registry directly. The Council should review the CAN to check whether it accurately reflects the offence which the Council alleges was committed, and whether any changes to the CAN should be sought at the first mention. It is not uncommon to need to amend the CAN (for example, to amend the date of the offence or the charge particulars), and this can be done with the Defendant’s consent, or, where it can be amended without injustice, with the leave of the Court.

Revenue NSW will also provide Council with a “Court Attendance Unavailable Dates Form”. The responsible Council officer should complete this form prior to the first mention, setting out the dates they are not available to attend Court to give evidence and provide it to the police prosecutor or the solicitors representing Council in the proceedings. The Council will also need to prepare a statement of facts (SoF). The SoF will set out the essential factual circumstances relied on to prove the offence and matters relevant to sentencing.

At the first mention

Ordinarily the Defendant will enter a plea at the first mention. Sometimes a guilty plea may be entered in writing before the first mention to prevent the Court from making an order that the Defendant pay the prosecutor’s costs in the proceedings (addressed below). Alternatively, the Defendant may seek an adjournment of the matter for mention on another day if they need more time to decide how they wish to plea.

If the Defendant enters a plea of guilty then the matter will proceed straight to sentencing. It may proceed immediately, or be listed for sentencing at a later date. The Council’s solicitor (or the police prosecutor) will hand up to the Court a copy of the SoF, relevant legislation and any other material they wish to refer the Court to for the purpose of sentencing.

Where the Defendant enters a plea of guilty it may be possible for the parties to reach agreement as to the contents of the SoF Sometimes this may require, the Council and the Defendant to negotiate to amend or remove parts of the SoF so that the matter can proceed to sentencing on the basis of an agreed version. If the parties cannot agree on the content of the SoF the matter will need to be listed at a later date for a “contested facts hearing”, where the Council and the Defendant each have an opportunity to put on evidence in support of their version of events.

If the Defendant pleads not guilty, the matter will be listed for a defended hearing at a later date.  

The hearing and giving evidence

At a defended hearing, or a hearing on contested facts, the Council will need to adduce evidence to prove its case to the criminal standard of ‘beyond reasonable doubt’. The investigating officer responsible for issuing the PIN will ordinarily be required to give evidence at the hearing. In some cases it may also be necessary to call evidence from other witnesses, such as members of the public who reported the incident to Council.  

While the Council is not required to serve its brief of evidence on the Defendant in proceedings of this type,[1] those who are required to give evidence at the hearing will be expected to prepare a witness statement setting out the evidence they would give in Court. This statement will be served on the Defendant in advance of the hearing. If no objection is taken by the Defendant, this witness statement can be tendered at the hearing and will be treated as that witness’s evidence. If the Defendant objects to the tender of the witness statement, the witness will need to give their evidence orally in the witness box. The witness may be cross-examined by the Defendant or their legal representative or agent.

Once the Council has adduced all its evidence, the Defendant may adduce its own evidence, although they do not have to.

Following the close of evidence, the Council and the Defendant will have an opportunity to make submissions to the Court. Through this process, the Council can link the evidence it has tendered to the charge. Submissions can also be made on the existence of any aggravating and mitigating factors relevant to sentencing. The Magistrate will then decide whether to find the Defendant guilty and what sentence should be imposed. This may be done immediately after the submissions, or at a later date to be determined by the Magistrate, if they need further time to consider the evidence.

Withdrawal of Court Attendance Notice

A Council does not have to continue a prosecution following the court election of a PIN and issue of a CAN. At any point up to the hearing, it is open to a Council to withdraw a CAN. This will have the effect of dismissing the charges. The Council may decide to exercise its discretion to do this for a variety of reasons, including that:

  1. it does not consider that it has enough evidence to secure a guilty verdict; and/or
  2. it is not in the public interest to continue the prosecution.

When weighing up whether it is in the public interest to continue a prosecution, some matters to consider are:

  1. the seriousness of the offence;
  2. the likely outcome in the event of a finding of guilt;
  3. the availability of alternatives to prosecution;
  4. the length and expense of a court hearing.

Other regulatory authorities, such as the Environment Protection Authority and the Department of Planning, Industry and Environment, have published useful Prosecution Guidelines that set out a range of factors that may be considered when deciding whether to continue or withdraw a prosecution.[2]  If the charge is withdrawn, the Council might, however, be ordered to pay the Defendant’s legal costs.[3]

Costs in the Local Court

If the Defendant is convicted of an offence (either following a defended hearing or a guilty plea), the prosecuting Council will ordinarily be entitled to an order that the Defendant pay its legal costs in an amount the Court considers just and reasonable.[4] The exception to this is where the Defendant has entered a written plea of guilty 7 days prior to the first mention, in which case there will be no order for costs.[5]

If the Defendant is found not guilty, the Court may order the Council to pay the Defendants legal costs, but only if the Court is satisfied that one or more of the limited circumstances set out in s 214(1) of the Criminal Procedure Act 1986 apply.

Our Planning, Environment & Local Government team regularly act for NSW Local Councils in Local Court Proceedings and are well placed to appear in the Local Court across regional NSW from our base in Canberra.  Please contact us should you need our assistance.

[1] Reg 24(a), Criminal Procedure Regulation 2017

[2] For example, pp 7 – 8,  EPA Prosecution Guidelines, August 2020.

[3] Section 213(1), Criminal Procedure Act 1986 (NSW)

[4] Section 215(1), Criminal Procedure Act 1986 (NSW)

[5] Section 215(1A), Criminal Procedure Act 1986 (NSW)

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