10th September 1985 1 Receiving (by having stolen property

2 Each of the counts 10-26 inclusive refers to a misuse of an American Express card 3760 065351 11002 (count 17 cites a slightly different number, but this would appear to be a typographical error). As can be seen, all of the crimes charged in these counts are alleged to have been committed on three consecutive days namely, the 8th, 9th and 10th of September 1985.

3 The four counts relating to 3rd May 1985 all concern the opening and use of an account in the name "Ricky Devine". One of them is a count of personation contrary to s288 of the Criminal Code. As this is not a crime triable summarily the learned magistrate committed the appellant for trial in the Supreme Court. Counsel for the appellant asked that the appellant be committed for trial on all the counts. His Worship acceded to that request in respect of counts 6-9 inclusive, ie, all the counts connected with Devine and alleging criminal conduct on 3rd May 1985. He declined the request in respect of the remaining twenty-two counts.

4 By his notice to review, the appellant claims that his Worship ought to have committed him on all counts, and that his Worship's refusal to do so sprang from a failure properly to exercise the discretion reposed in him by s71 of the Justices Act.

5 The sections of the Code proscribing the various crimes alleged are:-

6 No single count involves a sum of money higher than $270.00. Many of them involve much smaller amounts. Many of the counts are repetitive, but I judge the full amount involved in the American Express card frauds to be $774.50. The first five counts involve a total of $460.00.

7 Section 71(1) of the Justices Act 1959 reads as follows:-

"(1) Where a person is brought before justices upon a complaint for an offence under -

(a) one of the sections of the Criminal Code referred to in Schedule 2 in respect of property the value of which does not exceed $500; or

(b) section 278 or 279 of the Criminal Code in respect of a document, seal, or die which relates to an amount not exceeding $500, whether as the consideration for a transaction or dealing or otherwise;

the section creating that offence shall, unless the justices think that the offence should be heard on indictment, be deemed, subject to subsection (2), to have created a simple offence, and the complaint shall be dealt with accordingly."

8 Schedule 2 lists ss252A and 258. Each of the offences under consideration is therefore within the purview of s71 and is to be tried summarily "unless the justices think that the offence should be heard on indictment".

9 It is plain that this section confers a very wide discretion to be exercised in the interests of justice. The statute gives no guide as to the matters to be taken into account by the magistrate, and it would be unwise to venture upon the compilation of a list of such matters. However, at least one must be the gravity to the accused of the charge in its setting. For example, a comparatively minor charge might be of extreme gravity to a person who is much in the public eye and it might not be considered fair to deprive that person of trial by jury. Also, if a person must be committed on one charge, he ought in fairness to be committed in respect of all those counts which are clearly linked with it. His Worship recognized this in respect of counts 6 to 9 inclusive. I would think that this notion of linkage would cover cases where there is a common evidential thread linking a number of minor charges with the result that the prosecution or defence case in respect of every count rests to a substantial degree on the proof of one or more particular facts. If this were so and the total amount involved was substantial, it would be at least arguable that a magistrate ought to exercise his discretion to commit the accused person on all such counts.

10 Both before me and before his Worship, counsel for the accused was, perhaps understandably, a little coy about the nature of the defence, but Mr Cunningham in the Court of Petty Sessions said that all the charges "arose out of the one course of conduct". This would seem to be false in respect of counts 1 to 9 but probably true in respect of counts 10-26. Mr Meyer was not contradicted when he informed me that there was one police investigation and one interrogation covering all counts. Further, it seems probable that in any trial of counts 10-26, the manner in which the accused came into possession of the American Express card (if indeed he did) would be a single factor of some importance common to every count. If either this factor, or the admissibility or weight of the single alleged confession covering all counts is indeed crucial, then the trial of the accused on counts 10-26 could, to some extent, be regarded as one trial involving a total sum in excess of $500.00. It does not appear that his Worship gave any consideration to this aspect of the matter. He was not invited to do so by counsel. In my opinion it merited consideration. I therefore hold that his Worship failed properly to exercise the discretion vested in him. The appeal must succeed.

11 I should mention one other argument which was addressed to me. Mr Meyer submitted that the word "offence" in s72 must be read as including the plural and that therefore if the arithmetical total of the money involved in all the offences exceeded $500.00, the accused was entitled by virtue of s72 to demand trial by jury. I do not accept that submission.

12 The appeal having succeeded, I must address my mind to the form of the order which in my view ought to have been made. I have been in some doubt as to whether the order of committal should be confined to counts 10-26 (the American Express card counts), but in view of the fact that there was but one interrogation, I have come to the conclusion that all counts ought to be tried together in the Supreme Court.

13 It would be undesirable for two tribunals to consider separately issues which may be raised in relation to that interrogation. The matter will be remitted to the magistrate with instructions to commit on all counts.