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[2024] ACTSC 62
Supreme Court of the ACT
2024-03-12
McWilliam J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 21 ACTLR 86
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Bourke v Styche Citation: [2024] ACTSC 62 Hearing Date: 20 February 2024 Decision Date: 12 March 2024 Before: McWilliam J Decision: (1) The review appeal is allowed. (2) Pursuant to s 219F(1) of the Magistrates Court Act 1930 (ACT), the Orders made in the Magistrates Court on 13 December 2022 are set aside in relation to the following proceedings: CAN 14405/2020; CAN 14406/2020; CAN 14407/2020; CAN 14409/2020; CAN 14410/2020; CAN 14412/2020; CAN 14414/2020; CAN 14415/2020; CAN 14417/2020; CAN 1124/2022. (3) Each of the proceedings referred to in Order 2 are remitted to the Magistrates Court, differently constituted, for further hearing according to law. Catchwords: APPEAL – CRIMINAL LAW – Review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – multiple charges of acts of indecency – appeal brought on basis that decision should not in law have been made – whether appeal incompetent – whether failure to give adequate reasons – where reasons did not identify factual and legal issues in dispute – error established – whether residual discretion should be exercised – where no delay by Prosecution in bringing the appeal – where no double jeopardy established – appeal allowed – charges remitted to a different magistrate in the Magistrates Court PRACTICE AND PROCEDURE – CRIMINAL LAW – review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – meaning of “the decision should not in law have been made” – whether confined to jurisdictional error Legislation Cited: Court Procedures Rules 2006 (ACT) r 5111(2) Court of Petty Sessions Ordinance 1972 (Cth) Crimes Act 1900 (ACT) ss 60(1), 374, 375, 375AA Human Rights Act 2004 (ACT) ss 7, 24 Magistrates Court Ordinance 1930 (ACT) Div 3 Magistrates Court Act 1930 (ACT) Pt 3.10, ss 54, 208, 214(2), 219B, 219D, 219E, 219F Supreme Court Act 1933 (ACT) s 68C(2) Cases Cited: AK v the State of Western Australia [2008] HCA 8; 232 CLR 438 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 Alexandria Landfill Pty Ltd v Transport for NSW [2020] HCASL 271 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Davern v Messel (1984) 155 CLR 21 DL v The Queen [2018] HCA 26; 266 CLR 1 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Garay v The Queen (No 3) [2023] ACTCA 2 Gedeon v Commissioner of the New South Wales Commission and Ors [2008] HCA 43; 236 CLR 120 Gibbons v Perkins [2021] ACTSC 254 Greenwood v Barlee [2018] ACTSC 46 Harlovich v Sebbens [2023] ACTSCFC 3 Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 JGS v The Queen [2020] SASCFC 48 Macks v Viscariello [2017] SASCFC 172; 130 SASR 1 Mark v Henshaw (1998) 85 FCR 555 at 563 May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; 109 NSWLR 604 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21 Myers v Claudianos (1990) 100 FLR 362 O’Connell v McMennemin [2014] ACTSC 112 Pearce v The Queen (1998) 194 CLR 610 Perkins v County Court of Victoria [2000] VSCA 171; 2 VR 246 Pettitt v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982) Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v A2; R v Magennis; R v Vaziri [2019] HCA 35; 269 CLR 507 R v Becirovic [2017] SASCFC 156 R v BK [2022] NSWCCA 51 R v Carroll [2002] HCA 55; 213 CLR 635 R v Police Complaints Board; Ex parte Madden (1983) 2 All ER 353 R v Sexton [2018] SASCFC 28 Saunders v King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974) Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Van Eyle v McFarlane [2024] ACTSC 50 Willcoxson v Legal and General Insurance of Australia Ltd (1990) 101 FLR 1 Wolter v Broomhall [2023] ACTSC 331 Texts Cited: Explanatory Memorandum to the Court of Petty Sessions Ordinance 1972 (Cth) Parties: Bridget Bourke (Appellant/Informant) Jordan Christopher Styche (Respondent) Representation: Counsel A Williamson SC and Ms E Roff (Appellant) J White SC (Respondent) Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent) File Number: SCA 1 of 2023 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 14 June 2023 Case Title: Bourke v Styche Charge Numbers: CAN 14405/2020 CAN 14406/2020 CAN 14407/2020 CAN 14409/2020 CAN 14410/2020 CAN 14412/2020 CAN 14414/2020 CAN 14415/2020 CAN 14417/2020 CAN 1124/2022 McWilliam J:
The charges
The charges appealed are all offences of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act), punishable on conviction by imprisonment for up to 7 years. They carry the following reference numbers: CAN 14405/2020; CAN 14406/2020; CAN 14407/2020; CAN 14409/2020; CAN 14410/2020; CAN 14412/2020; CAN 1124/2022; CAN 14414/2020; CAN 14415/2020 and CAN 14417/2020.
There were two other charges of the same offence (CAN 1123/2022 and CAN 14411/2020) and two charges of stalking (CAN 14408/2020 and CAN 14413/2020) that were dismissed in the court below and are not the subject of this appeal.
The 10 charges related to conduct alleged to have occurred over five days in a six-day period in 2020 at several clothing stores in an outlet centre and a suburban shopping centre. The charges the subject of appeal involved 6 separate complainants, each of whom was a female sales assistant who assisted the respondent when he was trying on pants or tights in a changeroom. The alleged acts of indecency concerned the accused directing the attention of the sales assistant to his erect penis, or an object that looked like an erect penis, through various tactics. The details of the charges are set out further below.
Statutory basis on which the appeal is brought
The appeal is brought pursuant to Part 3.10 (in particular, Division 3.10.3) of the Magistrates Court Act 1930 (ACT) (MC Act).
The right of review by this Court is created by s 219B of the MC Act. It provides a list of decisions of the Magistrates Court, or the Childrens Court, from which an appeal by way of review (a “review appeal”) may be made in accordance with Division 3.10.3.
Among those included in the list (and relevant to this appeal) is “an order dismissing an information dealt with” under s 375 of the Crimes Act: s 219B(1)(a)(iii)(B) of the MC Act. Section 375(1)(b)(ii) of the Crimes Act enables summary disposal of cases where an offence is punishable by imprisonment for a term that does not exceed 10 years. Section 375(1)(b)(ii) applies here as the acts of indecency charged here had a maximum term of imprisonment of seven years. Grounds of appeal
The grounds on which a review appeal may be brought are set out in s 219D of the MC Act, which is in the following terms (emphasis added): Grounds for review The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds: (a) that there was a prima facie case of error or mistake on the part of the Magistrates Court; (b) that the Magistrates Court did not have jurisdiction or authority to make the decision; (c) that the decision of the Magistrates Court should not in law have been made; (d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made; (e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.
The references to s 219B(1)(d) or (e) are to a decision not to commit a person to the Supreme Court for sentence and a decision to dispose of a case summarily under certain sections of the Crimes Act respectively. Section 219B(1)(f) relates to appeals from sentences or penalties imposed under various sections of the MC Act or the Crimes Act.
Pursuant to r 5111(2) of the Court Procedures Rules 2006 (ACT), leave was granted at the hearing on 20 February 2024 to file and rely upon an Amended Notice of Appeal. The appellant now brings the appeal solely on the ground emphasised above, namely that “the decision” should not “in law” have been made because the primary magistrate failed to provide adequate reasons for acquitting the respondent in respect of each of the 10 charges.
The relief sought is that each of the acquittal verdicts (the magistrate’s decision to dismiss each of the 10 charges) referred to above be set aside and remitted to the Magistrates Court, differently constituted, for further hearing. Issues on appeal
The primary issue formally for resolution on the appeal is whether there was a failure to provide adequate reasons. Given that this is an appeal by the prosecution, if error is established, a further question will arise as to what relief should follow – whether the Court on appeal should exercise its discretion to decline to intervene (as to which, see Harlovich v Sebbens [2023] ACTSCFC 3 (Harlovich) at [2]-[5]), and if not, whether the matter should be remitted to a different magistrate for rehearing.
Summary of findings on appeal
Is the appeal competent? Submissions of the parties
The respondent submitted that an appeal for a failure to give reasons based on this ground was misconceived and therefore incompetent. It was submitted (in summary) that: (a) Review appeals under Div 3.10.3 are appeals stricto sensu, where the issue for the Court is limited to determining whether, upon the material before the court below, the conclusion which was reached was correct (relying on Mark v Henshaw (1998) 85 FCR 555 at 563 (Mark) and May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 (May) at [109]). (b) Section 219D(c) of the MC Act is confined to cases involving jurisdictional error and whether the ultimate decision was one that could not have been made in law. (c) A failure to give reasons (if that were to be established): (i) Does not amount to jurisdictional error (relying on Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; 109 NSWLR 604 (Ming) at [45]); and (ii) Does not impact upon whether the ultimate decision itself to dismiss the charges was one that “in law” should not have been made (relying on Perkins v County Court of Victoria [2000] VSCA 171; 2 VR 246). (d) Here, the appellant did not identify any reason why the decision itself to dismiss each of the 10 charges was a decision that should not “in law” have been made.
In detailed written submissions prepared by Ms McCann for the appellant, and confirmed orally by the Acting Director at the hearing, the appellant argued: (a) That a review appeal under Division 3.10.3 (and specifically s 219D) was not an appeal stricto sensu; (b) The nature of the powers of the appeal court (contained in s 219F) is broader than the relief that would ordinarily be available on an appeal stricto sensu, and s 219F(1) makes clear that there is a power to receive further evidence, with leave. These indicia are more consistent with the appeal being in the nature of a rehearing. (c) Section 219D(c) of the MC Act is not limited to errors of a jurisdictional kind. In any event, a failure to give reasons can amount to a constructive failure to exercise jurisdiction, which is what occurred in this case. (d) A decision “in law” is one that is reached according to the correct application of legal principle to the facts. The text of s 219D(c) provides that a decision arrived at on an erroneous basis is a decision which “should not in law have been made”.
The difference between the two submissions was, as put by the respondent, whether the subject review ground is to be interpreted narrowly or broadly: (a) The narrow interpretation means that the ground is only available for arguments concerning a legal impediment in making the decision (that is, legal errors that are jurisdictional or that invalidate a decision). (b) On the broader interpretation, the review ground is available to where the decision could have been made, but because of legal error in the process of forming the decision, it should not have been made.
Identifying jurisdictional error
The discussion that follows proceeds on assumed knowledge of jurisdictional error and the way it differs from other errors of law. An explanation was provided conveniently in the key authority addressed by the parties, Ming, by Kirk JA (with whom White and Mitchelmore JJA agreed) at [8]: Jurisdictional error has been described as “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] per Kiefel CJ, Gageler and Keane JJ. Put simply, it involves a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so. A failure by a non-superior court “to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force”: Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2 at [48] (Oakey).
In Gedeon v Commissioner of the New South Wales Commission and Ors [2008] HCA 43; 236 CLR 120 at [43] the High Court adopted the formulation of a “criterion, satisfaction of which enlivens the power of the decision-maker”.
In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393, Spigelman CJ said at [33] that “[t]here is no single test or theory or logical process by which the distinction between jurisdictional and non-jurisdictional error can be determined”. That is consistent with the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) at [91]- [92] (references omitted, emphasis added): 91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. 92. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. … The proper construction of s 219D(c)
Historical context and purpose
Part of the context here includes the historical context as to how review appeals were created and the purpose of such appeals. In Harlovich, a detailed consideration of the history and structure of Part 3.10 was set out at [45]-[69]. That case dealt with the scope of the residual discretion. The Full Court of the Supreme Court discussed the structure of Part 3.10 of the MC Act, stating at [45] that the MC Act creates three different types of criminal appeals: (a) Appeals in criminal matters (Div 3.10.2); (b) Reference appeals (Div 3.10.2A); and (c) Review appeals (Div 3.10.3).
It was noted at [46] of Harlovich that there was considerable overlap between appeals in criminal matters under Div 3.10.2 and appeals under Div 3.10.3, but importantly for the purpose of construction here: … Both Divisions provide for appeals to be brought against convictions and sentences imposed in the Magistrates Court.
That can be seen in s 219B, which creates the right to a “review appeal”. In that section, there is a list of decisions from which an appeal by way of review may be made in accordance with Div 3.10.3. Among the list are the following decisions of the Magistrates Court: (a) An order dismissing an information dealt with under ss 374, 375, 375AA of the Crimes Act; and (b) A conviction, a sentence or a penalty imposed for an offence dealt with under those sections.
That is significant for the construction of the text of s 219D and the scope of the grounds for review, in that the section providing for review appeals is capable of being invoked by both the prosecution and the person charged.
The history to the review appeal provisions was set out in Harlovich, relevantly at [55]- [60] (emphasis added): 55․ … the origin of the distinction between criminal appeals under Div 3.10.2 of the Magistrates Court Act and review appeals under Div 3.10.3 is found in amendments that were made to the Court of Petty Sessions Ordinance 1930 (Cth) by ss 4 and 10 of the Court of Petty Sessions Ordinance 1972 (Cth) (“the 1972 Ordinance”). 56․ The existing Div 2 of Part XI (ss 208 – 219), had, since the establishment of the Court of Petty Sessions (now the Magistrates Court) in 1930, provided for appeals from rulings, orders, convictions, and determinations of that Court (originally to the High Court, and later to the ACT Supreme Court). The 1972 Ordinance updated Div 2 by removing the requirement for leave in criminal appeals and limiting appeals by way of rehearing in civil appeals; and inserted the new Div 3 (ss 219A – 219F) which created a procedure for appeals by way of orders nisi to review. In other words, Div 2, which by 1986 provided for statutory criminal appeals, was the predecessor of Div 3.10.2, whilst Div 3, which provided for appeals by way of orders nisi, was the predecessor of Div 3.10.3. 57․ In 1984, separate appeal procedures for civil actions were introduced into the Magistrates Court (Civil Jurisdiction) Ordinance 1982 (ACT) by the Court of Petty Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984 (ACT), and in 1986, Division 2 of the Magistrates Court Act was amended by the Magistrates Court (Amendment) Act 1990 (ACT) to provide exclusively for criminal appeals against convictions, sentence, bail and other orders. 58․ As originally enacted in the 1972 Ordinance, s 219C provided that the available grounds of review included prima facie error, lack of jurisdiction, or where the decision should not in law have been made. Section 219F provided for the powers to be exercised by the Supreme Court in terms that are similar to the powers contained in the present s 219F. Subsection 219F(1) provided: (1) On the return of an order nisi to review a decision of the Court of Petty Sessions, the Supreme Court, on consideration of the evidence before the Court of Petty Sessions and any further evidence called by leave of the Supreme Court – (a) may, if satisfied that the decision of the Court of Petty Sessions should be confirmed, discharge the order nisi; or (b) may set aside or quash, in whole or in part, or otherwise vary or amend, the decision of the Court of Petty Sessions and – (i) may remit the matter to the Court of Petty Sessions for rehearing or for further hearing with or without directions of law; or (ii) may make such further order, including an order granting any relief that the Supreme Court is empowered to grant on certiorari, mandamus, prohibition or habeas corpus, as the Supreme Court thinks necessary to determine finally the matter. 59․ As originally enacted, s 219F(3) was in similar terms to the present s 219F(5). Section 219F(3) provided: (3) The Supreme Court may, notwithstanding the ground or any of the grounds on which the order nisi to review a decision of the Court of Petty Sessions was granted has been established, discharge the order nisi if the Supreme Court is of the opinion that no substantial miscarriage of justice has occurred. 60․ It is apparent both from the nature of the available grounds of review specified in s 219C and from the remedies specified in s 219F that review appeals were intended to expand remedies that were previously available at common law on an application for judicial review.
Text of 219D(c) and context of the section
That result is evident in the language of section 219D of the MC Act itself, set out above. The plain words of the section evince a scheme for review that is not confined to jurisdictional error, nor grounds that accord with a review appeal in relation to the dismissal of a charge under s 375 of the Crimes Act being limited to an appeal in the strict sense (discussed separately below).
Dealing with each paragraph under the grounds of review pursuant to s 219D of the MC Act in turn, paragraph (a) provides for review where there is a prima facie mistake or error. It is not clear whether the words “prima facie” are meant to indicate obvious error or an error on the face of the record or something else. In Saunders v King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974) Blackburn J held at 71 that the type of “mistake” that was contemplated by this provision was an “error or mistake of law, or, possibly also, an error or mistake as to some material or undisputed fact”, “so that there is a certainty or high degree of probability that if the error had not been made the result would have been different.” However, for the present task, the important point is that the plain words of the ground make no distinction between legal or factual mistakes.
Paragraph (b) is specifically directed to jurisdictional error, namely “that the Magistrates Court did not have jurisdiction or authority to make the decision”. It is significant here because it provides a separate ground of review for decisions made without jurisdiction. Whether the words of that paragraph extend to a constructive failure to exercise jurisdiction is a matter that it is unnecessary to decide, given this was not the ground relied upon in this appeal.
Paragraph (c) then deals with decisions that should not “in law” have been made. In that regard, language such as “in law”, “of law” and “in point of law” are all permutations of legal error as distinguished from factual error. Here, the plain language distinguishes between the factual basis for a decision and the legal basis for the decision, although there may, of course, be factual findings that are themselves errors of law. Examples include where the factual finding is made in the absence of any supporting evidence, or where the fact itself is a jurisdictional fact.
Paragraphs (d) and (e) deal with specific categories of decisions. For those decisions, broader language is used. Thus, a decision whether to commit or dispose of a matter summarily may be reviewed on the basis that “in the circumstances of the case”, it “should not have been made”. Similarly, a sentence or penalty imposed in the circumstances referred to in s 219B(1)(f) may be reviewed on the basis that it is “manifestly inadequate” or “otherwise in error”.
The “review appeal” creature: an appeal stricto sensu, by way of rehearing, or something else?
Part of the reason why the respondent viewed the ground as confined in the manner for which he contended was due to a perception that s 219B of the MC Act created an appeal stricto sensu. The respondent relied upon the following passage from the majority judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [20], citing Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622 (references omitted): … Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.
In Mark, the Full Court of the Federal Court, on appeal from the ACT Supreme Court, stated at 563: … An appeal to the Supreme Court of the Australian Capital Territory by way of order to review pursuant to Part XI of the Act is not a rehearing. Nor is it an appeal on questions of fact. The error or mistake which has to be demonstrated pursuant to s 219C(1)(c) is confined to an error of law: Saunders v King (unreported, Supreme Court, ACT, Blackburn J, 16 September 1974); Priest v Cook (unreported, Supreme Court, ACT, Kelly J, 22 September 1982); Dahlstrom v Low (unreported, Supreme Court, ACT, Gallop J, 1 July 1996). …
None of the authorities referred to in that passage describe the right of review as an appeal in the strict sense (nor as being limited to jurisdictional error). They all construed an order for review as “concerned generally with questions of law”: Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982) (Priest) at 15.
The authorities referred to in Mark were picked up by the Court of Appeal in May at [109]: There is a line of authority which indicates that a review appeal under s 219B is limited to questions of law or, at least, such questions and only a limited category of factual matters. This is raised by the terms of the explanatory memorandum for the Court of Petty Sessions Act 1972 (ACT) which introduced s 219B and explained the new provision as providing “a convenient means whereby decisions of the Court of Petty Sessions on questions of law may be reviewed by the Supreme Court”. There were then a number of subsequent decisions of the Supreme Court and Federal Court which interpreted s 219B(1)(a) of the Magistrates Court Act as being confined to questions of law or possibly extending only to a limited category of facts: Saunders v the King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974); Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982) at 15; Dahlstrom v Low (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 July 1996) at 8; Mark v Henshaw (1998) 85 FCR 555 at 563. These authorities are consistent with earlier Victorian authority based upon a similarly worded review appeal provision in s 155 of the Justices Act 1958 (Vic): Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351. None of these decisions were referred to in the parties’ written submissions and their correctness or applicability was not the subject of submissions in this court.
Conclusion on the proper construction of s 219D(c)
Within that general understanding of the review scheme, the proper construction of paragraph (c) does not favour review being available only for jurisdictional error, for the following reasons.
First, the clear starting point from the plain words of the section is that the error or mistake which has to be demonstrated is confined to an error of law for this particular ground: Mark at 563.
Second, there is no express textual limitation confining that ground of review to a smaller class of legal error, that being legal error affecting the magistrate’s jurisdiction or power to make the decision. The absence of any express words in the section itself means that the Court would have to have a proper basis to read down the words of the section. To the extent that the basis for doing so relied on a particular type or class of appeal (stricto sensu), that argument does not assist for the reasons given above.
Paragraph (c) uses the word “should” as opposed to “could”, which is a textual indicator in favour of the broad interpretation. That is, a magistrate may have the legal authority to determine the charges and either find them to be proven or dismiss them. However, if there is a legal error in the process by which that decision is made, then it is a decision that should not “in law” have been made.
Third, if paragraph (c) were limited to jurisdictional errors of law, it would have no work to do, as it would merely be replicating the ground of review created by the previous paragraph, only in a different form of words. Such a construction, which would render paragraph (c) “superfluous, void, or insignificant”, is not to be preferred: Project Blue Sky at [71].
Fourth, the original historical purpose of the legislation referred to above was to provide for review for legal error, and in doing so, to create or expand the opportunities for review. The review appeal scheme has then further expanded beyond that initial purpose. Factual error is available under other grounds in the section although whether it is confined to a particular type of factual error does not need to be canvassed here. It is significant that the ground of review under consideration is available for all decisions listed in s 219B and may be utilised by the prosecution or the defendant to a charge. While not determinative, these matters provide context for why an interpretation of the ground that does not read down the language, or confine the operation of the review ground unnecessarily, should be preferred.
Drawing together the text of s 219D(c) itself, the statutory review scheme in which it is located, and the purpose behind the scheme, properly construed, the words “the decision should not in law have been made” means that review is available for decisions where error of law is established, with the consequence that the decision was not made in accordance with law. While that includes decisions that could not have been made due to jurisdictional error, it is not so limited to only that category of legal error.
A failure to give reasons is an error “in law”
It remains to consider whether a failure to give reasons falls within the ground of review so construed. In that regard, it is helpful to reason from first principles, with the High Court in Fleming explaining the point at [22] (references included in the body of the text, emphasis added): Here one of the questions raised by the appellant turns upon the significance for an appeal of a failure to observe the requirements imposed by Pt 9 of the Criminal Procedure Act. The scope and purpose of that legislation is a matter of first importance. Some insight into those questions is provided by the decision of the New South Wales Court of Appeal in Pettitt v Dunkley [[1971] 1 NSWLR 376]. Section 142 of the District Courts Act 1912 (NSW) provided for an appeal to the Court of Appeal by a party who was "aggrieved by the ruling, order, direction, or decision of the judge in point of law". It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law [at 381-382, 385, 388]. In Public Service Board of NSW v Osmond [(1986) 159 CLR 656 at 666], Gibbs CJ said that the decision in Pettitt v Dunkley "that the failure to give reasons was an error in law may have broken new ground". Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal upon the construction of s 142 should be accepted. Further, in the present case, the obligation to give reasons is specified in the statute itself, namely in the mandatory terms of s 33. Such a provision is an expression of legislative concern not only for the effective exercise by the Court of Criminal Appeal of its jurisdiction conferred by ss 5 and 6 of the Criminal Appeal Act. More fundamentally, s 33 evinces a concern that, in the operation of the new regime established by Pt 9 of the Criminal Procedure Act whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done.
Plainly, the decisions in Fleming and in Pettitt v Dunkley [1971] 1 NSWLR 376 (Pettitt) were construing a different statute, where the words creating the appeal right were “a party aggrieved by the ruling, order, direction, or decision of the judge in point of law.” However, in my view, the language in question is substantively similar to the words used in s 219D(c). I cannot see any material difference between “in law” and “in point of law”. The reasoning remains applicable by analogy to the statute under consideration here, namely that a decision by a trial magistrate sitting alone, that fails to give adequate reasons, is not a decision that “in law” should have been made, simply because it falls short of justice being “seen to be done”.
Whether a failure to give reasons will amount to a jurisdictional error depends on the circumstances of the case (including the statutory context). In Ming at [45], it was held that ordinarily the failure to fulfill the general duty to give reasons would not constitute jurisdictional error. However, it has also been held that in some cases the failure to give reasons will constitute a constructive failure to exercise jurisdiction: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 277F-G.
Was there a failure to give reasons?
The appellant’s complaint was that when considered as a whole, and as a matter of substance, the magistrate’s reasons fell unacceptably short of the duty to provide reasons, and were, in the circumstances, so inadequate as to constitute reviewable error.
In addressing that complaint, it will be necessary to consider the reasons of the magistrate “fairly, as a whole” (see Garay v The Queen (No 3) [2023] ACTCA 2 (Garay) at [138]), with an understanding of the applicable principles and the issues that were in dispute. Applicable principles – the common law obligation
Section 68C(2) of the Supreme Court Act 1933 (ACT) deals with the requirements of a judge to give reasons for a verdict in criminal proceedings in the Supreme Court. There is no equivalent statutory obligation in the MC Act, as seen from the power under s 54 of the MC Act, requiring the Court to “hear and decide” the information laid. Instead, the applicable principles are derived from the common law.
In that regard, it is well-settled that a judge or magistrate at first instance has an obligation to give reasons for the judgment given: Pettit at 480-482; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441. The reasons for such a duty were explained in Ming at [26]-[29]. Without repeating the detail of what was there set out (including detailed reference to the applicable authorities): (a) The nature of the judicial power is that it resolves disputed issues of fact or law in a way that is reasoned; (b) It facilitates the principle of open justice by ensuring that a losing party can understand why the decision did not go in their favour, a matter which goes to the legitimacy of judicial decisions. (c) Where there is a right of appeal, adequate reasons are needed for a party to understand the basis for a decision and to exercise any appeal rights, and for an appellate court to discharge its statutory functions. Without adequate reasons, an appellate court is unable to determine whether the trial judge has approached their task correctly or engaged in some other form of appealable error. (d) The requirement to give reasons which are open to scrutiny imposes a discipline which promotes better decision-making in grappling with the issues in dispute.
The content of the obligation – what constitutes “adequate reasons”?
The content of the judicial obligation to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy [2017] HCA 49; 263 CLR 85 at [61].
It generally demands more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. There must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”: Fleming at [28]. However, it is not necessarily the case that reasons be lengthy or elaborate in order to be adequate: Thorne at [61].
While the statement was made in the context of a statutory duty to give reasons, it has been held at appellate level elsewhere the obligation at common law is no less burdensome: JGS v The Queen [2020] SASCFC 48 (JGS) at [200], citing R v Becirovic [2017] SASCFC 156 at [267].
In AK v the State of Western Australia [2008] HCA 8; 232 CLR 438 (AK), Heydon J stated at [85] (references omitted, emphasis added): … Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. …
The above passage was cited with approval in DL v The Queen [2018] HCA 26; 266 CLR 1 (DL) at [33]. The Court in DL had stated earlier (at [32]) that what constitutes ‘adequate’ reasons is informed by the nature of the jurisdiction which the court is exercising and the particular matter that is the subject of the decision.
In Garay, McCallum CJ (with whom Collier J agreed), referred to the above observation in AK and DL in making the following important points at [141]-[142]: 141. Those remarks [in AK] were cited with approval by a majority of the High Court in DL v The Queen [2018] HCA 26; 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ). That was an appeal from a jurisdiction that has no statutory provision of the kind found in s 68C. The content of a duty to give reasons may well be the same whether founded in the common law or a provision in the terms of s 68C but it is always prudent to bear such distinctions in mind. 142. It was observed in the same passage in DL that “not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict”. That observation implicitly acknowledges the need for the appellate court to assess the adequacy of the reasons by reference to the materiality of the particular intermediate finding in respect of which the mandatory requirement is said not to have been met. As Heydon J said in AK in the passage cited above, it may be difficult in that context to distinguish between an unconvincing factual finding (which would not fall foul of the requirement) and a failure to make a finding of fact or expose the “reasoning process linking” the principles of law to the findings of fact (which would).
The critical issues in dispute
The elements of an act of indecency are uncontroversial. As stated recently in Van Eyle v McFarlane [2024] ACTSC 50 at [10], they comprise the following elements: (a) That a person commits an act on another person; (b) That the act is indecent according to the standards of morality and decency held by ordinary members of the community; (c) That the other person does not consent to the act; and (d) That the person was reckless as to whether that other person consented.
As can be seen from the above summary, the conduct for each of the alleged acts of indecency included both physical conduct and spoken words. The respondent denied that he had an erection or used any device such as a dildo on any occasion. He also denied saying the words attributed to him.
For the last incident, the respondent said that the curtain to the changeroom was closed the whole time and that the complainant did not see him in the tights at any stage. Reasons of the magistrate
The magistrate’s reasons extend over 6 pages of transcript. The reasons commenced with the magistrate setting out the directions that he was to follow. Among other directions (about which no complaint is made) was a direction “commonly known as the Liberato direction”. The magistrate stated: In that regard, the direction I give myself is first, if I believe the evidence of the accused then I must acquit. Secondly, if I have difficulty in accepting the evidence of the accused but think that it might be true, then I must also acquit. Thirdly, if I do not believe the accused then I should put his testimony to one side. The question will remain has the prosecution, upon the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?
The magistrate deliberately avoided setting out the particulars of each charge individually, stating (emphasis added): I do not propose to recite the particulars of each allegation nor do I propose to summarise the extensive evidence in respect to each matter. Rather, the upshot of most of the act[s] of indecency allegations is that the defendant approached a number of female clothing stores, discussed with the female complainants…who worked in the stores that he was intending to create a costume for an 80s themed party. He then tried on tight fitting leggings or pants and then in the process of seeking feedback from the complainants, all salespersons as I have mentioned, allegedly revealed his erect penis as covered by the garments he was trying on. …The issues for me to determine are whether or not, in fact, I could be satisfied beyond reasonable doubt that the defendant’s penis was erect in these interactions and further whether, in fact, he touched his penis in a sexual manner or in the alternative he touched it in a covering manner. The former would support the charges, the latter would not. A further issue is that the prosecution alleged in the alternative that if the penis of the defendant was not erect during these interactions, that he had inserted some sort of dildo into his pants before seeking feedback of each complainant. The prosecution made two preliminary applications. The first was a coincidence application. In brief, the prosecution submitted that as each complainant had asserted that the defendant’s penis was erect during the interaction with him that it could not simply be a coincidence and I could use that as evidence to satisfy me beyond reasonable doubt that his penis was, in fact, erect.
The appellant’s submissions
The appellant submitted that the reasons of the magistrate did not meet the minimum standard required in the following respects: (a) They failed to identify the issues for determination in fact and law; (b) They failed to deal with the evidence relevant to each charge, instead combining all the complainants and incidents together as a homogenous group; (c) That approach meant that the magistrate failed to resolve the critical areas of contest between the parties. As part of that failure, there was a failure to resolve the material factual disputes that were required to be resolved before the verdict could be arrived at; (d) The lack of such analysis meant that the reasoning process then failed to appreciate the impact of the tendency evidence and as a result, failed to deal adequately with the tendency evidence; (e) There was a failure to engage in any analysis of the coincidence reasoning with respect to each incident and how the evidence featured in the determination of the prosecution case for each charge; and (f) Separately to the failure to make factual findings that resolved the key factual conflict, the magistrate failed to explain how the competing arguments of the parties were dealt with and why the magistrate arrived at the resolution he did. A number of examples were given, including the lack of reasons explaining why the magistrate was not satisfied that the respondent had an erect penis in respect of each charge, where the magistrate had accepted each of the complainants as both credible and reliable and there was a concession of the implausibility of each complainant being mistaken.
The appellant submitted that it was not possible from the reasons given to understand what specifically the magistrate had a reasonable doubt about, or why he had such a doubt. The appellant argued that the reasons fell short of what was stated by Nettle J in DL at [131] (references omitted, emphasis added): Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
Should the matter be remitted to a different magistrate?
In Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 (Broken Hill) at [159]- [168], the NSW Court of Appeal (Ward P, with Mitchelmore and Kirk JJA agreeing) discussed the power to remit a matter to a different judicial officer where the error established was a failure to give reasons. It is to be exercised sparingly, by reference to the interests of justice in the particular case, which include the appearance of justice: Broken Hill at [159].
At [160], Ward P quoted Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518, where Kirby J addressed the question of whether to direct remittal to a fresh decision maker. His Honour stated (at 556): Such a direction is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where the decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice).
Ward P went on at [161] to address considerations bearing upon the exercise of the broad discretion, by reference to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Seltsam) at [12]-[16] per Mason P. The point which I consider has application in the present case is contained in the reasoning in Seltsam at [13]: There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136.
In Wolter at [89], Baker J also referred to the fact that in some cases, “redetermination according to law will require the proceedings to be reheard and determined by a different decision maker”. Given the nature of the competing evidence between the complainants and the respondent, and the findings already expressed by the magistrate about credit, this is a case where such an order is appropriate, so as to avoid any perception of apprehended bias.
Orders
I certify that the preceding one hundred and forty-five [145] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate: Date:
Bourke
Styche [2024] ACTSC 62
(1997) 48 NSWLR 430
(1976) 135 CLR 616
(1984) 155 CLR 21
(1998) 85 FCR 555
(1990) 100 FLR 362
(1998) 194 CLR 610
(1987) 10 NSWLR 247
(1990) 101 FLR 1
(2018) 264 CLR 123
(2021) 272 CLR 33
(1986) 6 NSWLR 472
(1992) 26 NSWLR 411
The respondent in written submissions and oral argument raised a question about the competency of the appeal. The argument was that a failure to give reasons did not fall within the review ground relied upon, and that no other ground was expressly relied upon in this appeal.
Notwithstanding that no formal application was filed, the appellant dealt with the argument and accordingly, that issue will be considered first.
There was no issue between the parties that the appellant should pay the costs of the review appeal, as that is what s 219F(8) of the MC Act requires. Because that section applies whether the Supreme Court dismisses the appeal or exercises any other power under s 219F of the MC Act, I made such an order at the hearing.
Accordingly, the issues remaining for consideration are: (a) Is the appeal competent? (b) If yes, is error established by a failure to give reasons? (c) If yes, should the Court exercise its discretion to decline to intervene? (d) If no, should the Court remit the proceeding to a different magistrate?
The principles of statutory interpretation are well-established. The task of construction begins with the text of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]. In so doing, it takes account of its context and purpose: Project Blue Sky at [69]-[70]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21 at [15]. Context is to be considered “at the first stage of the process of construction”: R v A2; R v Magennis; R v Vaziri [2019] HCA 35; 269 CLR 507 (A2) at [33] (Nettle and Gordon JJ agreeing at [148]). Context is to be understood in “its widest sense”, as including "surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole": A2 at [33].
The Explanatory Memorandum to the Court of Petty Sessions Ordinance 1972 (Cth) (1972 Ordinance) stated: … Section 10 of the Ordinance … inserts a new Part dealing with appeals to the Supreme Court. The more important effects of the new provisions are as follows:- (a) An appeal in a criminal case lies as of right in all cases and the existing requirement of leave in certain cases is abolished. (b) Under the existing provisions, the Supreme Court is required to hear afresh all cases in which appeals are brought. Under the new provisions, complete rehearings are limited to criminal cases. In civil cases, appeals will be determined on the evidence given in the Court of Petty Sessions together with such further evidence as may be given before the Supreme Court. (c) The new provisions introduce a procedure for appeal by way of order to review. This procedure is new to the Territory although it has been used in certain of the States for some years. Its use is largely confined to the criminal jurisdiction and it provides a convenient means whereby decisions of the Court of Petty Sessions on questions of law may be reviewed by the Supreme Court. The procedure is available to both prosecutor and defendant. For the first time in the Territory, it will be possible for a prosecutor to appeal against the dismissal of an information charging an offence but, in such a case, the defendant’s costs of the appeal will be payable by the prosecutor whatever the outcome of the appeal.
The amendments to the 1972 Ordinance were also traced in Harlovich at [61]-[70]. They include the addition, in 1990, of a ground of review alleging that the sentence imposed was manifestly inadequate (what became s 219D(e) of the MC Act) and the removal in 2009 of the two-step process: where previously an order nisi was first required before the decision was reviewed, which was then discharged, confirmed or quashed in part or in whole by the Supreme Court. Now only a single notice of appeal is required.
What can be seen from the history and the way in which the review appeal provisions developed is that the section was intended to deal with review on questions of law, which inherently includes jurisdictional error. However, there is no suggestion that either the entire section or the individual paragraph s 219D(c) of the MC Act was intended to be limited to cases involving jurisdictional error.
Contrary to the submissions of the respondent, it does not follow from what was said in Mark that a review appeal is an appeal in the strict sense.
Caution has been expressed about using labels to describe an appeal in circumstances where the statute itself does not use them. For example, in Fleming v The Queen [1998] HCA 68; 197 CLR 250 (Fleming) at [21]: The phrase "by way of rehearing" has been used to identify various characteristics of the appellate process and does not necessarily have a fixed or settled meaning. It is best used only when required by a statutory text. The phrase is not found in the legislation with which this appeal is concerned and does not immediately assist as a criterion of differentiation in identifying the incidents of the appellate process for which the legislation does provide.
In Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124, the High Court made the point (at [2]) that I consider helpful to recall for the statute under consideration here (references omitted, emphasis added): The issues which arise illustrate the proposition, emphasised in a number of decisions of this Court, that an "appeal" is not a procedure known to the common law, but, rather, always is a creature of statute. Further, the term "appeal" may be used in a number of senses. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ referred to the fourfold distinction drawn by Mason J in an earlier decision as follows: "(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo". But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term "appeal" to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen: "Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be." In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature.
What kind of creature, then, is the review appeal? The following features of the statute are relevant: (a) The task on review is implicitly directed to the time the decision was made in the Magistrates Court, as there is no express power to draw inferences of fact, in contrast to other parts of the MC Act (s 208 and 214(2)) where such a power is prescribed. In Priest, Kelly J stated at 15: But the whole scheme of [what became Div 3.10] indicates that there is available to an appellant a general appeal or an appeal by way of order to review generally on questions of law. Accordingly, it seems to me that this Court is concerned in this case with the questions of law raised in the appeal and should not arrogate to itself (although I make no definitive finding on that question) the authority to make findings of fact. (b) There is a limited power to admit evidence. In Saunders at 73, Blackburn J suggested the purpose of the provision was to “provide for the exceptional case where additional evidence not called in the [c]ourt below may be relevant for the purpose of showing that one or more of the grounds” set out in the section was made out. (c) The review grounds in s 219D discussed above are not limited to determining whether the decision was correct. (d) The powers available to the Court to grant relief are also broader than what would be available under an appeal stricto sensu. For example, the Supreme Court may, under s 219F(1)(b), vary or amend the decision in the Magistrates Court and may, under s 219F(3), make amendments to the proceeding in the Magistrates Court to correct any defect or error in the proceeding or to enable the matter to be decided on the merits before the Magistrates Court.
For completeness, it may be noted that in Saunders, Blackburn J expressed a view at 70-72 about the scope of relief available and the inability to substitute a different sentence on a review appeal. However, those comments were made in obiter, were made before the additional grounds of review were added to s 219D in 1990 and in any event, the correctness of the view expressed does not need to be decided here.
With those features, a “review appeal” of the kind created by the MC Act does not conform entirely to either established category. A safer course is to eschew such labels and just accept that a review appeal takes its shape from the language of the statute, and its features are those created by Div 3.10.3. Otherwise, the use of traditional classes of appeal as a basis for construing the statute may at best divert, and at worst mislead, those engaged in the task of construction.
In the present case, given s 219D(c) has been construed so as not to preclude errors of law which are not jurisdictional, it is not necessary for the appellant here to establish that the nature of the failure was jurisdictional.
For those reasons, the complaint made by the appellant properly falls within s 219D(c) of the MC Act. The review appeal is therefore competently brought.
The adequacy of reasons is not to be judged against a standard of perfection, but the question is whether they “attained the minimum acceptable standard”: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 (Alexandria Landfill) at [316] (although the pinpoint paragraph does not appear in the published judgment). An application for special leave to appeal that decision was refused: see Alexandria Landfill Pty Ltd v Transport for NSW [2020] HCASL 271.
The relative test of “adequacy” depends on the nature of the issues in the case: DL at [33]. The adequacy of reasons given in a judge-alone trial will be a question of degree, depending on the circumstances of the case: R v BK [2022] NSWCCA 51 (BK) at [270] (and the authorities there-cited).
Consideration was given to what may constitute the minimum standard for “adequate” reasons in the Magistrates Court by Refshauge J in O’Connell v McMennemin [2014] ACTSC 112 (O’Connell) at [70]-[80]. His Honour found there is an obligation on a magistrate, as part of the exercise of his or her judicial office, to adequately state the findings of fact and reasons for decision, for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached (citing Pettit at 382).
In a summary jurisdiction, the reasons must articulate the essential ground or grounds on which the decision rests, although a detailed explanation is not always required: O’Connell at [77]. Similarly in Greenwood v Barlee [2018] ACTSC 46 at [4], Mossop J stated: The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].
Three further points are relevant to the arguments here. First, in Garay, McCallum CJ (with whom Collier J agreed) stated at [138] (emphasis added): It will be a rare case in which the adequacy of the reasons can be determined by reference to the structure of the judgment alone. The provision is concerned not with the quality of the writing but with the quality of the reasoning, which must necessarily be informed by the issues in the case. The statute does not impose a requirement that the judgment be reasoned beautifully; only that the reasoning process be exposed. It is trite that, in determining whether that has occurred, the appellate court must read the judgment fairly, as a whole.
Second, when assessing the quality of the reasoning and whether it meets a minimum acceptable level, it is important not to conflate inadequate reasons with inadequate reasoning (which is an error more in the nature of the trial judge’s reasoning not supporting the verdict returned). Inadequate reasons deal with where it is not possible to discern how the decision-maker rationally arrived at the determinative conclusions. Inadequate reasoning is where the reasoning is exposed, but flawed: see the discussion in JGS at [205]-[209] and Garay at [142]. Admittedly, the line between the two may be faint (an observation also made in cases such as R v Sexton [2018] SASCFC 28 at [178]).
Third, as to what constitutes “exposing” the reasons, the following passage from Macks v Viscariello [2017] SASCFC 172; 130 SASR 1 at [523] aptly describes the requirement: Reasons are not necessarily adequate because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all of the relevant facts, and where necessary, an explanation as to how the “inconvenient” facts can be put to one side or given little weight. As has often been said a fact does not cease to exist because it is ignored. The allegations comprising the charges
Because an assessment of the adequacy of the reasons requires an understanding of the issues of fact and law that required resolution, it is necessary in this case to first have an appreciation of the particulars of the allegations charged against the respondent.
For CAN 14405/2020 and CAN 14406/2020, it was alleged that on 28 October 2020, the complainant was working in a women’s activewear store in an outlet centre, where the respondent asked to try on some fluoro tights and went to the changeroom. He then opened the changeroom curtain and asked the complainant to come and look. When the complainant saw the respondent, she noticed he had what she perceived to be an erection: …an extremely large – almost dildo or toy type prosthetic, even. It was almost down to his knee and quite unnaturally veiny … it was bulging through the tights, and yeah, quite round, and the size.
The respondent said to the complainant “does this look okay?” The respondent then came out of the changeroom. He walked towards the complainant and she noticed he still had an erection. It was alleged that while holding his penis with one hand in a half grip, he asked the complainant whether it was “too tight” or if it “looked good”.
For CAN 14407/2020, a second complainant working at a different clothing store in the same outlet centre said that on either 28 or 29 October 2020 the respondent asked to try on some pants. After the complainant handed him several options, he asked for a smaller size to try on. He asked the complainant to come into the changeroom to see how the pants fit him. She told him she would not come into the changeroom but advised that there was a mirror outside the cubicle he was in for him to have a look. The respondent then asked for pants in an even smaller size. He tried them on and stepped out of the changeroom. He faced the complainant and the complainant could see that the respondent’s penis was obviously erect. The respondent was touching and grabbing his penis and said, “Oh I think they’re too tight”. He also said “sorry” whilst stroking, rubbing and grabbing his penis. This occurred for about 5 to 10 seconds before the complainant said that she could not assist him any further, walking away feeling uncomfortable.
For CAN 14409/2020, a third complainant at another clothing store at the same outlet centre, stated that on 30 October 2020, the respondent told the complainant he was looking for a women’s costume for a party and asked for a pair of women’s leather pants to try on in the changeroom. Whilst inside the changeroom, he asked the complainant, “is it too big”, while pointing his fingers towards his penis. The complainant stated that the pants were very tight and the complainant described the respondent as “definitely” having an erection. She described the respondent as grabbing at his penis, saying “sorry”, as if he was trying to cover it, but at the same time she felt he wanted her to see it because he was pointing to it and grabbing it.
For CAN 14410/2020, CAN 14412/2020 and CAN 1124/2020 a fourth complainant, working at the same women’s activewear store as the first complainant but on 30 October 2020, said that the respondent told her he needed a pair of tights for an 80’s themed party. He wanted the tights to be very tight and colourful. The respondent came out of the changeroom wearing a pair of tights, saw one of the other staff working there who had come into the store and seemed embarrassed. The fourth complainant said the respondent was covering his groin as if he was embarrassed but was making it obvious that he was covering himself. She saw that the respondent had what looked like an erect penis which could be seen through the tights. The respondent came back out and asked the complainant for a tighter pair of tights “because there was a lot of room”.
The fourth complainant then found a smaller pair of tights for the respondent to try on. She said to another member of staff that she could not continue to serve the respondent. The respondent came back out of the changeroom wearing the tights. He asked whether he should put shorts on. The respondent still had an erect penis and both the complainant and the other staff member said he should put shorts on.
The other member of staff took over assisting the respondent and the complainant went to the back of the store. She grabbed some boxes of stock and took them to the shop floor which was just near the changerooms. She was crouched down sorting items of clothing when the respondent approached her from the changeroom. He was still wearing the tights. She said that he stood over her with his erect penis “right in [her] face”. The respondent asked her if “it” was making her uncomfortable and whether “it” was obvious and if she could see “it”. The complainant understood the respondent to be referring to his penis. The respondent commented on his penis being big and asked her what it looked like. He referred to it being veiny. The respondent was stroking, rubbing and touching his penis the entire time. He said that he could see that he was making her uncomfortable and smirked. The respondent then returned to the changeroom and continued to look at the complainant through the open curtain.
A short time later, the complainant said that the respondent exited the changeroom and approached the counter to be served by her. He had changed back into his clothes. He told the complainant that he would be back on Saturday and asked if she would be there. She said that she was not going to be there, and the respondent replied that it would be a “shame” to “miss another show”.
For CAN 14414 /2020 and CAN CC14415/2020, it was alleged that the fifth complainant was working in a clothing store in the Canberra Centre on 2 November 2020. The respondent said he was looking for a pair of pants, asking specifically for lighter colours. The complainant gave some to him and he went into the changeroom. The complainant went to the changeroom to enquire how the respondent was going. The respondent opened the curtain, and the complainant observed the respondent wearing the pants she had given him and could see a very clear erection through them. She stated that she could see a clear bulge shaped like a penis, and she could see “veins”. The respondent looked at her and said, “I’m so sorry, I can’t help it”. He “would put his hand over his crotch to almost cover it, but then also clench his hand a little bit, like, tensing around it a little bit”.
The complainant gave the respondent a number of other pairs of paints and each time the respondent asked the complainant to come back to the changeroom to have a look. On one of those occasions, the respondent said to her, “Can you see it?” and “Can you see it more now or is it less noticeable?”, in an attempt to get the complainant to look at the respondent’s penis. He then said, “Would you let you boyfriend go out looking like this?” and words to the effect of “it’s not even hard right now. It’s a lot bigger when it’s hard.”
The complainant’s evidence was that the respondent asked the complainant questions about her boyfriend, told her she was “cute” and “very pretty”, had earlier asked for her telephone number and texted her a week later.
For CAN 14417 /2020, a sixth complainant on 2 November 2020 served the respondent at a women’s activewear store in a shopping centre in Greenway. The respondent asked to try on some tights for an 1980's themed party. The complainant picked out a few pairs of tights and showed him to the changerooms. The respondent opened the curtain to the changeroom, and the complainant noticed the respondent was wearing a pair of shorts with tights underneath. He asked for the complainant’s opinion on his outfit, to which the complainant responded by offering to bring him more items to try on. The complainant gave the respondent a pair of pink tights and the respondent went back to the changeroom. When he opened the curtain again, wearing the tights, the complainant saw “clearly” that he had an erection or dildo in his pants which she described as being “like a good forearm size” shaped like a penis, very large, with veins. The respondent then asked her, “what about these”, and “what do you think of these?”, holding his shirt out of the way, which made his crotch more visible. The respondent was standing with one leg in front of the other in an open stance. The phone rang and the complainant spoke to her manager. Security arrived and asked the respondent to leave the store.
The magistrate discussed the prosecution’s application to use coincidence evidence a little further and then said: …one of the troubling aspects of the evidence was the variety of descriptions of the defendant’s penis given by the complainants. Some asserted that it was erect and pointing down towards his knee under leggings whilst others described it as pointing upwards and into the right-hand side pressing against the fabric of the leggings. The length of the penis as observed also dramatically varied although all complainants remarked that it was large. I make some general observations about each of the complainants. They all impressed me as honest witnesses doing their best to recall what had occurred with each of their interactions with the defendant over that five day period.
The magistrate then referred to submissions made by counsel for the defendant, which his Honour described as “pertinent”. They included: (a) The complainant in the last matter was aware of complaints made by other complainants. A number of complainants had not gone directly to police but rather had responded to inquiries made by police during the course of investigating some of the complaints. (b) The informant only became aware of the allegations while investigating a different matter.
The magistrate then stated: I also note a number of the complainants remarked that they did not [make a police report after the incident occurred] – they believed the defendant may have been suffering from [some] sort of medical condition and did not draw attention to what they perceived to be his erect penis. Most of them observed that the questions he asked were general to the effect of, “Are these too tight?” and although some suggested that he pointed towards his genitals, a competing inference is that he was simply pointing to the clothing area generally. Each complainant agreed that in their role as a salesperson they are often asked by customers to give feedback on how a particular garment fitted or, indeed, looked on the customer. Several of the complainants also conceded, either in evidence-in-chief or in cross-examination, that the defendant may have been attempting to cover his penis rather than grab it while seeking their feedback. In terms of the submission by the prosecution that the defendant inserted some sort of dildo into his pants before leaving or before seeking feedback, I do not find that that is supported by the CCTV footage that was played in respect of many of the interactions and showing the defendant moving around the various shopping centres between entering stores. It simply seems implausible to me that the defendant could have such a large item and it not be revealed at some point throughout his wanderings around the shopping centres.
His Honour then confirmed that he had already made some observations about some of the reservations he had on the basis of the prosecution case alone. The magistrate turned to the tendency application, recording that the use was: …to attend clothing stores and seek assistance from female staff working there to help him find tight pants, to try on tight pants in the changeroom and then draw the attention of the female staff to his crotch and that he had the intention to do so essentially was the third and fourth aspects of the tendency.
The magistrate then explained the difficulty he had with the tendency use: Again, some of the difficulty I have with this tendency is that the tendency is entirely consistent with a customer seeking feedback about the clothing they are trying on and it does not seem to me, bringing my own common life experience to it, that it is unusual for a customer to point to areas which are otherwise considered sexual such as their genital area or, indeed, perhaps in the case of a female customer, towards their breasts. Often feedback is sought that, “Is this too tight?” “Is it too loose?” and the issue is that the defendant effectively did not dispute that, for the purposes of these charges, he was doing that so the tendency evidence, as such, in my view, has limited assistance in circumstances where it was part of the normal process.
The magistrate then moved to what he had earlier identified as the issue for him to determine: The more fundamental aspect, as I mentioned initially, is whether or not I could be satisfied that the defendant’s erect penis was erect during these interactions. As I have said, a more fundamental issue is the fact that the defendant gave evidence. He described all of the interactions were to do with his intention to create a costume for an 80s themed party that a work colleague was hosting in the near future, or if they were not – the interactions were not to do with that, to simply purchase clothes for himself and seek feedback on their appearance. It is with this in mind that he approach[ed] each of the stores and discussed with the various complainants what he had in mind. He also tried on pants that did not form part of the costume at some stores and purchased a shirt on one occasion. He described himself as a fussy shopper when it came to clothing and this was borne out on pretty much all of the occasions where he took some time to try on several different types of leggings or pants. His evidence was that he was conscious that the leggings and other pants he tried on were very revealing. He gave evidence that he took steps to conceal his genitals by covering them. He was certain that his penis was not at any stage erect during any of the interactions. When I suggested to him that he may have made some attempt at lighthearted remarks to dispel the awkwardness of having his genitals more exposed than normal due to the tight fitting nature of the garments, he did not accept that that may have been the case. What I also found compelling was evidence that in between some of these allegations at the South.Point Centre the defendant was also observed when entering another store by the name of Tarocash in the South.Point centre and spent a considerable amount of [time] trying on pants of a chino style.
The magistrate then referred to the CCTV footage of the assistant on a number of occasions brining a number of different sizes and styles to the defendant in one of the changing rooms, which the magistrate considered to support the defendant’s assertion that he was fussy when it came to clothing. The magistrate continued (emphasis added): …Further, the defendant asked one of the complainants for their number and communicated with them via text a week later. He was also identified through the fact that he gave his membership number during one of the transactions. This strikes me as consistent with his account that he was simply shopping for clothing rather than having any sort of nefarious intention. What was also of note that during the last incident he did notice a distinct change in the demeanour of the complainant when he described his costume concept. Yet despite that change he continued to try on items. It strikes me that had he had the intention to expose himself deliberately, that he would have aborted the attempted exposure on the basis of the change in demeanour of the complainant. I note that it was unusual that following the last incident at the South.Point Centre he appeared to flee [from] the centre and run all the way to where his car was parked. However, he explained that he had freaked out when being told to leave the store by the security guard and was worried about being escorted through the shopping centre and so instead ran to where his car was parked. I can’t reject his explanation for his running. His evidence was that he ultimately did not attend the party with the 80s theme having lost some enthusiasm after his last incident and further having some issues with his girlfriend at the time. I was also impressed by the fact that he came forward and identified himself to police following images from CCTV being on social media. Ultimately, though as I have noted I found each complainant honest and reliable and I do not wish to diminish for a moment particularly some of the complainants who were clearly affected by what they had observed in their interactions with the defendant. Nonetheless, it ultimately, it seems to me, that whilst I have difficulty in accepting some of the defendant’s evidence, for example the fact that he may not have made the lighthearted remarks reported by some complainants in an attempt to dispel embarrassment, when I looked at the totality of the evidence, including the CCTV footage, his account of each incident and, indeed, some of the concessions made by the complainants, I am unable to reject his account of events. As I have noted, this seems to me, also has an impact on whether I could use the tendency argument as submitted by the prosecution. It seems to me fundamentally that I can’t be satisfied beyond reasonable doubt of any particular incident as described by any particular complainant when I look at the totality of the evidence. I am therefore unable to continue to the next step of tendency for the purpose of using one incident for establishing the tendency in respect to others. Similarly, given the observations I have made about the varying descriptions of the defendant’s genitals and their position and being unable to reject his evidence, I am not able to reach a conclusion that the defendant’s penis was erect during any of these interactions.
The magistrate then went on to deal with matters that are not the subject of appeal before stating “in respect of all the charges there will be verdicts of not guilty.”
The appellant argued that the duty to give reasons was not satisfied by providing bare, unexplained conclusions that the respondent’s evidence could not be rejected. It was not sufficient for the magistrate to say that he was unable to reject the respondent’s account of events in circumstances where there was no explanation of why, having found each complainant to be both credible and reliable in their accounts, he could not reject the respondent’s account as being reasonably true. The most the magistrate appears to have done is simply considered the respondent’s evidence alone and asked himself whether it was plausible.
This was not a case where reasons were given immediately following the hearing. The magistrate reserved for over a month before delivering reasons. There was no criticism of that course. The appellant argued the nature and seriousness of the case required that to be done, in order to provide the detailed reasons explaining the findings for what were indictable offences, heard by the magistrate at the election of the respondent. The appellant complained that the large gaps in the reasoning of the magistrate “cannot be filled by a benevolent construction of the reasons or by attempting to draw inferences as to what his Honour took into account”, relying on BK at [142]. Respondent’s submissions
The respondent argued that the magistrate did give “comprehensive reasons” why he was unable to reject the respondent’s evidence: These reasons were: • the respondent gave evidence that he was shopping for an 80s themed party or else shopping for clothing (this is consistent with the prosecution witnesses); • he described himself as a fussy shopper and this was confirmed by the evidence in relation to each incident and CCTV footage of his attendance in Tarocash; • the items he tried on were very revealing; • he gave evidence that he took steps to conceal his genitals; • he provided his phone number to one complainant and entered his membership details at another store. He was making no attempt to conceal his identity and this was consistent with his account that he was shopping for clothing, rather than having any nefarious intention; • during the final incident, he noticed a change in demeanour of the complainant when he described the costume he wanted to wear, nevertheless [he] continued to try on clothing; • he came forward and identified himself to police; • there were concessions made by the complainants.
The respondent also pointed to the magistrate relying on CCTV footage which the magistrate said indicated there was nothing of the size (described as a good forearm size, or shoulder width) described by some of the witnesses, as well as the magistrate noting that the description of the penis varied dramatically between witnesses.
The respondent argued that it was not a requirement to set out each and every piece of evidence of each complainant or provide any description of each incident. The respondent submitted that the statement “I can’t be satisfied of any particular incident” followed an analysis of the respondent’s evidence and was made in the context of the tendency use.
The respondent’s submissions argued that the respondent gave an innocent explanation in relation to each individual incident. If the respondent’s evidence could not be rejected, then acquittal was inevitable.
The respondent argued that the magistrate dealt with the tendency evidence and stated that he could not be satisfied beyond a reasonable doubt of any of the incidents relied upon to found the tendencies. That being the case, the foundation for the tendencies alleged by the prosecution was not established.
The respondent also argued that the requirement for a magistrate to provide reasons in a summary hearing must be considered in light of s 219E of the MC Act, which provides that a court can require a magistrate to provide a report “setting out the reasons for the decision of the Magistrates Court and any facts or matters that in the view of the magistrate were relevant to the decision”.
However, in oral argument, neither the respondent nor the prosecution indicated that would be an appropriate course to take here, where reasons had been given. Determination – the reasons were inadequate
Applying the authorities set out above as to the flexible or relative minimum standard (in the sense of being dependent on jurisdiction, the nature of the case and the materiality of issues), a fair reading of the reasons as a whole includes having regard to the fact that this case was heard summarily in the Magistrates Court. However, the nature of the matter remained complex and serious and was reserved for over a month. This was not a case where the review concerns a magistrate’s unedited ex tempore remarks (c.f. Gibbons v Perkins [2021] ACTSC 254 at [55]). Relevant to the review appeal, there were 10 charges with six complainants and the maximum penalty available for an act of indecency indicates a degree of seriousness for the offence. The realities of the work of magistrates do not overcome the requirement to provide reasons in factually complex matters that at least expose an understanding of the facts comprising the charge that has been brought, and how the magistrate has resolved a material factual conflict for an element of that charge.
Given the number of charges and their similarity, it is understandable why an approach which grouped the conduct and complainants together may have seemed attractive, but in this case, it has been the undoing of the reasons in terms of their quality and the exposition of the reasoning.
For each charge there was a direct and intractable conflict between the evidence of the particular complainant, as to what she saw and heard, and the evidence of the respondent. The magistrate found that each complainant was not only honest, but reliable.
Because of the approach taken by the magistrate, the reasons do not include any specific reference to what the conduct alleged was for each charge. While that of itself may not amount to inadequate reasons, the global approach means that it is unable to be discerned from the reasons what conduct the magistrate accepted each complainant was honest and reliable about.
It is no answer to say that counsel had addressed on the specific incidents and the prosecutor had handed up particulars of each incident. These were not immaterial intermediate factual findings subsumed in a greater finding of generality; they were fundamental findings issues critical to resolving the first element of each charge. It is essential to expose the reasoning on a point critical to the contest between the parties: Soulemezis at 259D-E; cited in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
This had a flow on effect for all the findings that followed. The magistrate recorded the issue as being to determine whether the respondent’s penis was erect, and whether he touched his penis in a sexual manner. That was only part of the conduct alleged and resulted in the magistrate not directing his attention to the totality of the conduct that was the subject of each charge.
The global approach meant that the magistrate discussed the variety of descriptions of the respondent’s penis as being a difficulty he perceived in the case, without any discussion of the fact that the conduct that each described occurred on different days, in different stores, in different clothing, and the fact that not all accounts included the allegation that the respondent had used a phallic device.
The magistrate then determined that he was “unable to reject” the respondent’s “account of events”. Again, it is not discernible from the global approach taken what that meant in circumstances where each complainant had been found to be credible and reliable.
The inadequacy of the reasons in resolving the critical factual conflicts between the respondent and each complainant is perhaps revealed most tellingly by looking down the list of dot points relied upon by the respondent as exposing the reasoning, set out in [107] above. None of the matters relied upon as evidence of reasoning were factually in dispute. The “comprehensive reasons” do not grapple with any factual conflict between the parties at all.
The rolled-up approach also affected how the magistrate dealt with the four tendency uses alleged. None of the tendency uses relied upon by the prosecution related to whether the accused’s penis was erect or whether he used a phallic device at any point. I accept the appellant’s submission that the magistrate simply failed to appreciate the import of the tendency evidence, which meant that although there were reasons purportedly given about why the tendency evidence was rejected, such reasons did not in fact provide a transparent pathway or disclose that the tendency evidence that was actually before the court below had been taken into account. That of itself is an error with respect to a critical matter amounting to a failure to give reasons: see BK at [146], [276].
These matters are sufficient to establish that the reasons in this case did not adequately state the findings of fact or expose the reasons for decision, so as to enable a proper understanding of the basis upon which the findings of guilt were reached. An error of law under s 219D(c) has thus been established. Relief under s 219F – should the Court exercise the residual discretion?
The respondent argued that remitting the proceeding for further hearing (s 219F(2)(d) of the MC Act) would be an abuse of process because it would expose the respondent to double jeopardy. It was submitted that ordering a rehearing would impeach the earlier acquittal won by the respondent, relying on R v Carroll [2002] HCA 55; 213 CLR 635 (Carroll) at [99].
“Double jeopardy, properly understood, is best described in the phrase no person “should be tried twice for the same offence”: Davern v Messel (1984) 155 CLR 21 at 30 per Gibbs CJ quoting McNeill J in R v Police Complaints Board; Ex parte Madden (1983) 2 All ER 353 at 367. However, the expression may take on different meanings and may be used at different stages of the process – prosecution, conviction and punishment: Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 (Island Maritime) at [41]; Pearce v The Queen (1998) 194 CLR 610 (Pearce) at [9].
In this Territory, the right is contained in s 24 of the Human Rights Act 2004 (ACT) (HR Act) (emphasis added): No-one may be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with law.
Here, the acquittal in the Magistrates Court has been found not to have been administered in accordance with law. I accept that is not a complete answer as s 7 of the HR Act provides that the rights specified in that statute are not exhaustive of other rights a person may have in domestic or international law. This includes the common law protection against double jeopardy, which may extend beyond the words provided for in the HR Act.
However, the abrogation of the rule is here authorised by Division 3.10.3 of the MC Act. In Myers v Claudianos (1990) 100 FLR 362, Miles CJ considered the application of the rule against double jeopardy in the circumstances of a review appeal under Division 3 of Part XI of the Magistrates Court Ordinance 1930 (ACT) (which became Division 10.3 of the MC Act as set out in the extract from Harlovich above). The Chief Justice stated at 372-373 (emphasis added): There is a discretion in this Court whether, despite error on the part of the Magistrate, the case should be remitted to him or to another member of the Magistrates Court. This Court should not lightly remit a matter to a Magistrates Court for rehearing or for further hearing when there has been a dismissal of an information, amounting in the context of proceedings without jury, to an acquittal, and when there has been no absence or excess of jurisdiction. I do not doubt that such a step may be taken in appropriate circumstances with the possible eventual result that the setting aside of the acquittal will result in a conviction. The order to review procedure established under Division 3 of Part XI of the Magistrates Court Ordinance 1930 clearly authorises that course. In this Court an order setting aside the dismissal of an information and remitting the matter for further hearing to the then Court of Petty Sessions was made in Howard v Bondfield (1974) 3 ACTR 62, and a similar order was made in Milner v Anderson (1982) 42 ACTR 23. The Director of Public Prosecutions supplied a helpful and comprehensive list of relevant authorities in other parts of Australia which shows that the order to review procedure has in many instances resulted in the remittal of the case to a Magistrates Court for rehearing or further hearing after the dismissal of an information. Nonetheless, a court should take into account the rule against double jeopardy when exercising a discretion whether or not to remit. …
In Willcoxson v Legal and General Insurance of Australia Ltd (1990) 101 FLR 1 at 7, Miles CJ repeated that the course of remittal on a successful review appeal from a dismissal of a charge (akin to an acquittal) was (emphasis added): plainly open according to the terms of s 219F of the Magistrates Court Act. However, to make an order remitting the case to the Magistrates Court involves an invasion of the rule against double jeopardy and is not to be lightly taken.
More recently, in Harlovich, the Full Court discussed the interaction between the common law protection and legislative appeals at [30]-[37] in the context of considering the application of the residual discretion under s 219F of the MC Act. Double jeopardy principles may be excluded by legislation, and have been in the Territory with regard to both federal and state sentencing legislation: see Harlovich at [36] and the cases there-cited, including Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 at [19]-[20], [25] and [29].
Applying the above authorities, which were themselves founded upon a considerable body of earlier authority, I do not consider that a remittal of the proceeding following the successful challenge by the prosecution pursuant to s 219B of the MC Act, following an acquittal in the Magistrates Court, would be an abuse of process due to an infringement of the principle of double jeopardy. The remittal authorised by statute for the purpose of further hearing according to law could not be described as “vexatious or oppressive or for an improper… purpose”, to use the language of Pearce at [31].
However, it may equally be seen that double jeopardy considerations remain part of the residual discretion either conferred or retained under s 219F(1) and 219F(5) of the MC Act , as they pertain to the underlying considerations of fairness and justice: Harlovich at [75]. Those provisions direct attention both to whether any substantial miscarriage of justice has occurred and to the wider considerations discussed in Harlovich at [2], [82]- [85].
The respondent sought to draw upon what was said by Callinan J in Island Maritime at [96], where the prosecution “chose the wrong charge initially” and “were almost inexcusably belated” in commencing with an additional charge. In the course of finding that there was no abuse of process, Callinan J commented on broader considerations about the impact of a trial, stating at [96]: …It is all very well to say that the appellants were not, in the first proceedings, as “risk of a valid conviction”, but they still had all the anxiety, inconvenience, expense and pain of what must have seemed to them a real trial in which they were in jeopardy. …
The respondent also relied upon a passage from Carroll at [84] and [86], where the High Court was dealing with an attempt to prosecute a charge for perjury following an acquittal for murder, where the perjury alleged was constituted by the evidence given at the murder trial.
The respondent submitted that there was unfairness in him having gone into evidence and thus giving up his right to silence. However, the mere fact that the respondent made a forensic choice to give evidence is not of itself unfair. The respondent’s evidence at trial has not given rise to any further charge, as was the case in Carroll. But in any event, anything I have said about double jeopardy in the context of whether to exercise the residual discretion does not foreclose the respondent from raising the issue on remittal. For example, if the prosecution sought to supplement the case on remittal, or amend the charges or add further charges, the exercise of the discretion with regard to double jeopardy considerations lies with the Magistrates Court and not with this Court.
Otherwise, neither of the cases relied upon by the respondent assists him in the circumstances under consideration here. The prosecution has not contributed to the error established in any way and these are not proceedings involving a different charge based on the same facts. The concept of injustice applies equally to the prosecution as to the respondent. Public confidence in the justice system requires that minimum standards for transparency in reasoning be maintained. That objective would not be achieved by the Court on review declining to intervene here.
Finally, in the event that the review appeal succeeded, the respondent invited the Court to embark upon the ultimate merits of the decision, providing what he described was a comprehensive analysis of the evidence in the case.
I note what was said in Wolter v Broomhall [2023] ACTSC 331 (Wolter) at [87]: Where an appeal is by way of rehearing, a finding of a failure to give reasons will not usually result in the setting aside of the decision below if the appellate court is otherwise satisfied that the decision of the court below was correct: New South Wales Police Force v Winter [2011] NSWCA 330 at [89] – [90]. …
By contrast, this was a review appeal. The residual discretion does provide for consideration of the merits of the case, but it is a step too far as part of that exercise on a review appeal for error of law for the Court to proceed to review the evidence in the matter. It would require the drawing of inferences of fact with a view to ascertaining whether the same result would have been inevitable, and thus no miscarriage of justice occurred. The confined nature of the review and the nature of the error is such that the matter should be remitted for further hearing and factual findings to be made in the Magistrates Court. This is not a case where it is appropriate to exercise the discretion.