ADMINISTRATIVE LAW - Prerogative Writs and Orders - relief sought in nature of certiorari - availability of remedy - grounds for order in nature of certiorari - fraud or error on face of record not asserted - whether there was jurisdictional error or failure to give procedural fairness - stay order made without application by either party and without opportunity for either party to make submissions - failure to give procedural fairness justified order in nature of certiorari - whether erroneous exercise of discretionary power by Magistrate amounted to jurisdictional error - jurisdictional error not relied on in making order in nature of certiorari - decision of Magistrate quashed and matter remitted to Magistrates Court differently constituted.

Court Procedures Rules 2006 (ACT) r 3554

Crimes Act 1900 (ACT) s 26

Evidence Act 2011 (ACT) s 11

Magistrates Court Act 1930 (ACT) ss 19, 54, 114, 208, 219AB, 219B

Supreme Court Act 1933 (ACT) s 34B

Bloxham v Wyte [2013] ACTSC 151

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

DPP v Shirvanian (1998) 102 A Crim R 180

Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal; Faull v Commissioner for Social Housing in the ACT [2013] ACTSC 121

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Jackson v Sterling Industries Ltd (1986) 12 FCR 267

Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573

Likiardopoulos v The Queen (2012) 247 CLR 265

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265

R v Glennon [1992] HCA 16; (1992) 173 CLR 592

R v Lewis [1988] HCA 24; (1988) 165 CLR 12

R v Prasad (1979) 23 SASR 161; 2 A Crim R 45

Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

APPLICATION FOR JUDICIAL REVIEW OF DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPLICATION FOR JUDICIAL REVIEW OF DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The decision of the Magistrate to stay the proceedings against the second defendant is quashed.

2. The proceedings are remitted to the Magistrates Court, differently constituted, to be determined according to law.

3. The parties, and the solicitor instructed by the second defendant in the Magistrates Court, will be heard as to costs.

1. This is an application for judicial review of a decision of a Magistrate to permanently stay a criminal proceeding being heard before her in the Magistrates Court.

2. The plaintiff (the police informant in the Magistrates Court) seeks relief by way of prerogative order, which is provided for under s 34B of the Supreme Court Act 1933 (ACT) and r 3554 of the Court Procedures Rules 2006 (ACT), which are relevantly as follows:

Supreme Court Act 1933

34B Habeas corpus and prerogative orders

(1) The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.

(2) In this section:

habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.

prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of -

(a) a writ of mandamus, prohibition or certiorari; or

(b) an information in the nature of quo warranto.

relief includes remedy.

Court Procedures Rules 2006

3554 Judicial review - relief previously granted by prerogative writ etc

(1) If, before the commencement of these rules, the court had jurisdiction to grant any relief by way of a writ of mandamus, prohibition or certiorari, or on an information in the nature of quo warranto, the court continues to have jurisdiction to grant the relief.

(2) However, the court may grant the relief only by making an order under these rules in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules.

3. Specifically, the plaintiff seeks an order in the nature of certiorari, quashing her Honour's decision to permanently stay a prosecution, and remitting the matter to the Magistrates Court, differently constituted, to be determined according to law.

4. Before me, as in the Magistrates Court, the plaintiff was represented by an officer of the Director of Public Prosecutions (DPP).

5. The originating application specified seven grounds of review. At the initial hearing, only three were relied on, but in submissions filed by leave after that hearing, the plaintiff sought to rely also on two others. The grounds relied on were:

1. that a breach of the rules of natural justice happened in relation to the making of the decision
2. that procedures that were required by law to be observed in relation to the making of the decision were not observed
3. that the first defendant who purported to make the decision did not have jurisdiction to make the decision

1. that there was no evidence or other material to justify the making of the decision.

6. The first defendant was the Magistrates Court itself, which entered only a submitting appearance, except in relation to costs.

7. The application named the defendant in the criminal proceeding (Gary Jabs) as the second defendant, but despite the attendance on two occasions of the solicitor who had been acting for Mr Jabs in the Magistrates Court (Darryl Perkins), and despite Mr Perkins' efforts to establish whether Mr Jabs wished to instruct him in this matter, Mr Jabs did not take any part in these proceedings.

8. The Attorney-General was notified of the matter, but after several adjournments arising from the uncertainty about Mr Jabs' intentions, the court was advised that the Attorney-General would not be intervening in the matter. Thus, I was required to determine the matter without a contradictor, an unsatisfactory exercise at best, and for that reason have declined to address certain issues that, although raised, did not need to be determined in order for the application to be dealt with.

9. I do, however, record my appreciation of the efforts made by counsel for the plaintiff to ensure that, despite the absence of a contradictor, all relevant material was put before me.

10. Mr Jabs was charged under s 26 of the Crimes Act 1900 (ACT) with assaulting his 14yearold daughter. Before the first prosecution witness, the complainant, had finished giving her evidence, the Magistrate permanently stayed the proceedings as an abuse of process. The following summary of how the hearing developed is taken from the submissions of counsel for the plaintiff.

1. The matter came on for hearing on 21 September 2012. The prosecutor opened by outlining the prosecution case which was that the defendant attended the house where the complainant and his estranged wife lived and confronted the complainant about who was with her and alcohol he found in the fridge. There was some pushing and shoving between them. The second defendant took hold of the complainant's neck and pushed her, causing her to fall to the ground. This is the assault the subject of the charges. The complainant's boyfriend George was present and an eye witness to the assault. The prosecutor indicated that he intended to call evidence from the complainant, her boyfriend and her mother and evidence from two police witnesses.
2. In the course of her evidence-in-chief the complainant gave evidence that after her father pushed her, in an effort to get her father to leave, she had attempted to shut the garage roller door, to set off the alarm system to alert the police, and finally took hold of a cheese knife but fell to the ground dropping it. She was not near her father at that point.
3. At this point the Magistrate raised with the prosecutor, in the absence of the witness, why the complainant had not been charged with assault in relation to the action with a knife: TS p11 - 16.
4. After some discussion between the Magistrate and the prosecutor, the prosecutor was permitted to resume examination-in-chief of the complainant. A 000 call made by the complainant was then played. The Magistrate again interrupted the examination-in-chief of the complainant: TS 17 - 23. The Magistrate stated that the complainant had lied to the 000 caller in referring to her father "hitting" her. The magistrate also raised with the prosecutor the defendant's 000 call which had not been tendered yet in the proceedings. The Magistrate accused the prosecutor of misleading the Court: TS 20 at line 4 -9.
5. Examination-in-chief resumed and was completed. Part way through the cross-examination of the complainant the Magistrate permanently stayed the proceedings as an abuse of process: TS 45. The Magistrate cited the following reasons (TS 45 - 46):
   • "the prosecution are not prepared to act reasonably in relation to this matter"
   • "the prosecution is oppressive"
   • "the prosecution was at the very outset foredoomed to fail".

11. Her Honour first raised concerns about the prosecution after hearing less than 20 minutes of the complainant's evidence. In the absence of the complainant, she said:

Mr Wanigaratne, why is this person not on trial? I cannot understand why on earth the prosecution have brought this case. This is outrageous. We have a man who has been assaulted by his own daughter in a home that I have no evidence before me that he wasn't perfectly entitled to be in. There's no allegation of trespass. He's assaulted. He pushes a person away. He's then threatened with a knife, and then he's charged with assault. This is outrageous.

12. Although her Honour initially referred to the complainant presenting the knife to the defendant, she then focused on the complainant's pushing of the defendant in an attempt to get him to leave the house, including questioning the credibility of the complainant's evidence:

HER HONOUR: He is assaulted. She physically applies physical force to him without lawful excuse as far as I can see. Set that aside. The bottom line is, here is a man who is being pushed and all he does, quite, in quite a restrained manner, frankly, is put out his hand and push her back.

MR WANIGARATNE: It depends, your Honour, whether what he's done in response to what the complainant is doing is proportional to what the complainant is doing. Now - - -

HER HONOUR: Well, at the moment, I have heard no evidence from her that it wasn't. He's pushed her back.

MR WANIGARATNE: Well, your Honour - - -

HER HONOUR: He hasn't slapped her. He hasn't punched her. He hasn't pushed her forcibly to the floor.

MR WANIGARATNE: Well, she - - -

HER HONOUR: He's pushed her back, and she says she stumbles back. I have heard nothing. I have heard - if this is the height at which your evidence is going to get, if this is the high point, I'm appalled firstly that the prosecution have brought this case, because I think it's outrageous that somebody should be put in this position. But secondly, if this is the height of the prosecution case, I'd ask you to go away. I'm going to take the morning adjournment right now, because I'm going to ask you to go away and have a very careful think about what, whether you want to go on with this. Because frankly, you know, at the moment, if this is the high point of the prosecution case, it's appalling that it's been brought.

MR WANIGARATNE: Just very quickly before your Honour takes the adjournment, if it was a situation where - your Honour's obviously looking in terms of self-defence, in terms of the defendant's - - -

HER HONOUR: Well, I thought that was the obvious - - -

MR WANIGARATNE: Yes, that's correct, your Honour. But if it was a situation - I'm not saying it's in this case, but say you have a situation where the complainant has pushed the person to leave the house, and the defendant in response punches or severely beats the - - -

HER HONOUR: Or if it had been a slap or a punch, absolutely. Then it could have been disproportionate and therefore not covered by

self-defence. I can understand that situation and that would have been a perfectly proper basis upon which the prosecution would bring their case. But for, to push away somebody who, even if they pushed them quite forcefully, and there's no evidence from her that she was pushed unduly forcefully, quite frankly - - -

MR WANIGARATNE: Well, she indicated that she was lifted up and pushed backwards.

HER HONOUR: Well, that's not the sense that I got from - I think she was pushed back. What I heard from her was that she was pushed back and she fell or stumbled back and fell to the floor. I mean, this is about being lifted up - - -

MR WANIGARATNE: She did use the word "lift."

HER HONOUR: Simply unbelievable, Mr Wanigaratne. How could she? There was no indication that he grabbed her around the neck, lifted her up and pushed her back, which is what I was expecting to hear on your opening. I mean, and that certainly would have been disproportionate. But the evidence she's given, frankly, I can't believe that she was lifted up from the ground by that push. It sounds to me very much from what she said that she was pushed. She was pushed in the upper part of her body. She was forced back and she fell or stumbled back. That is the high point of her evidence.

MR WANIGARATNE: We also have another witness - - -

HER HONOUR: Then she went after him with a knife. After him with a knife.

MR WANIGARATNE: But your Honour, the knife incident is not relevant in terms of the - - -

HER HONOUR: Well, what do you want me to do? Do you want me to issue her with a certificate under section 128, although now it's a bit late? She's threatened this man with a knife. Doesn't that constitute an assault? Why wasn't that investigated?

MR WANIGARATNE: Your Honour, in terms of the knife, the witness has given evidence that she went to the front of the garage door, or the entrance garage door, holding the knife. There's no indication that she's threatening her father with the knife, because she's fell down.

HER HONOUR: Mr Wanigaratne, you've brought cases before me alleging that people have assaulted other people because they've shown them a knife.

MR WANIGARATNE: Well, she came to the front door and she fell down the stairs holding the knife.

HER HONOUR: She was five metres away from him. She was holding the knife. That's her evidence.

MR WANIGARATNE: That does not necessarily - - -

HER HONOUR: Well, anyway, she's not on - perhaps she should be, but she's not been charged and she's not on trial. If any event, if this is the high point of your case, I'm going to give you some time to go back and consider it, because I don't see on the evidence that I've heard before me how you can possibly make out an assault against the defendant. But I'll let you some time to maybe consider your position.

13. In summary, her Honour raised questions about the credibility of the complainant's evidence, the adequacy of its contents in terms of making out the relevant charge, and whether the complainant's evidence also incriminated her in relation to an assault on her father constituted by presenting the knife to him.

14. The Court then took a morning tea break. After that, the prosecutor sought to proceed with the prosecution evidence, noting that once that evidence was heard her Honour would make a determination.

15. The prosecutor then played the recording of the 000 call made by the complainant after the incident with her father. In that call she said that her father "started hitting me", a claim which had not been made by the complainant in her evidence in chief. Her Honour raised this with the prosecutor:

HER HONOUR: But Mr Wanigaratne, this is the prosecution who must prove their case beyond reasonable doubt. You are now putting before me evidence that undermines your own witness. This is your evidence that you're tendering in your case that contradicts your witness.

...

HER HONOUR: And I also notice, I might add, over the page, where the defendant has called the police because he's being threatened with a knife. And yet you indicated to me that it was unclear whether or not, knowing full well - Mr Wanigaratne, you have misled me.

...

MR WANIGARATNE: No, sorry, your Honour. We're not accepting the defendant's version.

HER HONOUR: No, no. Mr Wanigaratne, this is a separate point. This is an ethical issue. You misled me. You said that there was no evidence that the, there was nothing known to you that there was any evidence the defendant even knew that she was approaching with a knife, and then I find you give me a document where you know full well that he's alleging that she's come at him with a knife.

MR WANIGARATNE: But we don't accept the defendant's, because it contradicts what the complainant is indicating in her evidence.

HER HONOUR: Mr Wanigaratne, I, at the moment - - -

MR WANIGARATNE: I see, yes, I see.

HER HONOUR: - - - getting worse and worse, and frankly, I hope you, your, the police have deep pockets for the costs of this case.

MR WANIGARATNE: Your Honour - - -

HER HONOUR: Because at the moment, the word "punitive costs" is floating into my head. I warn you that right now, if you're going to persist with this, unless something changes very dramatically in the evidence, and at the moment, I'm tempted, frankly, and I'm not sure if I have the

power - perhaps somebody can tell me whether I do or not - to ask for

the director to come here and explain to me why this case is proceeding, in detail.

MS TONKIN: Your Honour, based on history, you certainly have that power to cause the director to attend. Whether the director answers your request is another thing. Your Honour, the matter has - you won't hear any argument from me. I'm gravely concerned that this matter has been brought. I mentioned outside that we would be seeking indemnity costs if the matter proceeding. I was told that there's no such thing. In the old days, [Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534] allowed the prosecution to pay indemnity, costs on an indemnity basis. I'm told - - -

HER HONOUR: The Rules don't allow that now, unfortunately.

MS TONKIN: - - - that now it's only provided, or by way of regulation. But indeed, your Honour now has two versions inconsistent in the prosecution's own case and at the close of the examination-in-chief, I'm going to seek leave to make an application before cross-examining this particular complainant about there being no evidence whatsoever that would support the Crown case, on a prima facie basis.

HER HONOUR: I think, unfortunately, we have to, if it continues in this way, we have to wait until the close of the prosecution case. But if this is the high point of the prosecution case, I've got a lying witness in front of me, quite frankly, on the evidence presented to me by the Crown.

And at the moment, Mr Wanigaratne, I feel that I have been misled by you, because your indication to me was that as far as you were aware, there was nothing to indicate that this witness was close to, or was seen by her father, and then you hand me a document which shows that he alleges, in fact he calls police alleging he's being approached with a kitchen knife.

MR WANIGARATNE: And he also indicates that in the record of interview, your Honour, as well. But the fact of the matter is that defendants will say things in record-of-interviews, or to police - - -

HER HONOUR: I think you're missing my point, Mr Wanigaratne. I don't think I can make myself any clearer. I'm going to give you 10 minutes. And I wish somebody before me, either, somebody who is appropriately senior to answer why this case is proceeding in the manner that it's proceeding, and with the evidence that has been presented to me right now. This is not consistent with your - if you want to go and read your own website, this is not consistent with the prosecutor's code of conduct that is advertised to the public by the director on your website. This is - I don't understand why the police have, clearly they've chosen, preferred one version of events over the other. I ask you the question, have the police investigated the allegation by this defendant in relation to being assaulted by way of putting fear by kitchen knife being brought down to him? Has that been investigated?

MR WANIGARATNE: Your Honour, in response to that question, the only other witness that we have is the boyfriend, who was present in the house who gave a statement. So the police have two statements that corroborated a particular version of events.

16. Her Honour then adjourned for a further short break to enable the prosecutor to call a senior DPP officer to attend before the court.

17. After the break, the prosecutor told the Court that the senior officer (Shane Drumgold) was not available until 2.15 pm, and her Honour appeared to accept this. The prosecutor then resumed playing the recorded 000 call. Cross-examination of the complainant began, but had not finished when her Honour adjourned for lunch at 12.57 pm. Nor had any other prosecution witness been called, although the prosecutor had indicated to her Honour earlier that there were other witnesses to be called, including an eyewitness to the incident.

18. When the hearing resumed at 1.59 pm, her Honour indicated, without seeking information or inviting submissions from either party, that she had determined that the prosecution should be stayed:

HER HONOUR: Now, before we go any further, I've determined that, seeing as the prosecution are not prepared to act reasonably in relation to this matter

MR WANIGARATNE: I say, before your Honour indicates that, Mr Drumgold will be here very shortly.

HER HONOUR: He'll come shortly to hear what I have to say then if it's not over by then. I propose to stop to this [sic]. In my view this is an abuse of the court's process. This prosecution is oppressive. I rely upon R v Carroll (2002) 231 CLR

MR WANIGARATNE: I'm sorry, your Honour. Mr Drumgold will just take a minute.

HER HONOUR: As I say, I rely upon R v Carroll (2002) 213 CLR 635 in which Gleeson CJ and Hayne J said [at [47]]:

The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.

As I say, I find there is an oppressiveness about this prosecution. Further, I rely on Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 where, in the decision of Mason CJ and Deane and Dawson JJ, it was said [at [23]]:

Thus, it has been long established that regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.

I form the view that this is a prosecution which should at the very outset have been foredoomed to fail. And it seems to me quite incredible that it has been allowed to continue - that it should have been laid in the first place and then allowed to continue.

There is no express power identified in relation to the Magistrates Court - an ability to stay on abuse of process - however, I rely on Williamson v Trainor 1992 - correction, I rely on Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265 where his Honour Redlich J cited great authority for the proposition, said at 276: "A Victorian Magistrate's implied power to prevent an abuse of the court's process can no longer be doubted". Similar statutory provisions in relation to local courts in other states have been construed in a like manner as supporting such power. The inference I draw from section 11 of the Evidence Act 2011, an ACT Act, at subsection 2 - in particular the powers of the court in relation to an abuse of process in a proceeding - are not affected by that section. From that, I draw the conclusion, or the "inference" as per Neill v County Court of Victoria, that I have the power to permanently stay these proceedings. And frankly I think it's quite disgraceful that they were brought given the nature of the case.

19. Having indicated her intention to stay the prosecution, her Honour heard an application for costs from defence counsel, and invited the prosecutor to respond. The prosecutor then pointed out the presence of Mr Drumgold who, after her Honour had pronounced the permanent stay, attempted to answer her questions about why the prosecution had ever been brought.

20. Her Honour's brief reasons for staying the prosecution can be summarised as follows:

(a) abuse of process can arise in a variety of circumstances, and the relevant discretionary considerations cannot be rigidly confined (R v Carroll (2002) 213 CLR 635 at [47]);

(b) the prosecution was oppressive;

(c) the prosecution was foredoomed to fail, and was therefore an abuse of process (Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ);

(d) the Magistrates Court has power to prevent an abuse of the court's processes (Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265 at [34]);

(e) the Evidence Act 2011 (ACT) does not limit the Magistrates Court's powers in this regard (see s 11); and

(f) therefore, her Honour had the power to permanently stay the proceedings (the bringing of which was "quite disgraceful").

21. The plaintiff does not generally dispute her Honour's propositions of law; rather, the challenge is to the procedure adopted by the Magistrate before staying the prosecution and to the absence of anything in the circumstances of this case that would, by reference to the fairly uncontroversial legal principles relied on by her Honour, have justified the staying of the prosecution. Not only did the Magistrate fail to identify anything in those circumstances justifying her order, but, the plaintiff says, there was nothing in those circumstances that permitted the making of the order.

(a) Was the Magistrate's order a proper exercise of her powers?

(b) If not, is there any remedy available to the plaintiff?

23. The plaintiff conceded that the ACT Magistrates Court has power to stay a proceeding to prevent an abuse of its processes.

24. The Magistrates Court's jurisdiction is set out in s 19 of the Magistrates Court Act 1930 (ACT); s 54 of that Act requires Magistrates to exercise their jurisdiction:

The court must hear and decide an information if both parties to the information appear personally or by lawyers or anyone else appearing for them.

25. In exercising that jurisdiction in respect of any information laid in the court where the defendant does not admit the truth of the information (s 114(1)), s 114 of that Act requires a Magistrate to follow a specified process:

(2) The court must hear -

(a) the informant and the informant's witnesses (if any); and

(b) if the defendant wants to give evidence - the defendant; and

(c) the defendant's witnesses (if any); and

(d) if the defendant has given evidence other than about the defendant's general character - the informant's witnesses in reply (if any).

(3) Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:

(a) convict the defendant;

(b) make an order on the defendant;

(c) dismiss the information.

26. However, the plaintiff's concession that the Magistrates Court has power to grant a stay implies that such an order is not excluded by the explicit and limited words of s 114(3) and the identification of three orders in that provision. This concession is supported by authority.

27. In DPP v Shirvanian (1998) 102 A Crim R 180 (Shirvanian) the New South Wales Court of Appeal dealt with the question whether a magistrate had power to grant a permanent stay of summary criminal proceedings. Mason P (with whom Beazley JA agreed, Powell JA dissenting):

(a) (at 183) noted the distinction between a court's jurisdiction and its powers, that in relation to a statutory court references to inherent jurisdiction are unwise, and that such a court may however have implied powers (which may be similar to, if not identical with, inherent power);

(b) (at 184) said that every court has either inherent or implied power to prevent its own processes being used to bring about injustice, the chief method for preventing such injustice being the stay.

28. In particular, Mason P concluded (at 185) that the power to stay a proceeding "for oppression amounting to abuse of process" was possessed by New South Wales magistrates unless it was excluded by clear words in relevant legislation.

29. That is, the Magistrates Court's jurisdiction and powers include not just the jurisdiction and powers explicitly provided for by relevant legislation but also:

by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.

30. That statement, initially made by Bowen CJ in Jackson v Sterling Industries Ltd (1986) 12 FCR 267 was endorsed by the majority of the High Court in Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, and by Mason P in Shirvanian at 183.

31. However, the plaintiff argued, there was no proper ground for granting a stay in this case.

32. Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 (Jago) was a case about the court's power to stay a prosecution because of delays in bringing the matter to trial, a matter claimed to render the prosecution an abuse of process because the accused would be unable to obtain a fair trial. The High Court, in five individual judgments, dismissed an appeal from a refusal to stay the prosecution, generally on the ground that no prejudice to the accused had been shown; however, comments were made about the circumstances in which a prosecution would appropriately be stayed as an abuse of process. Mason CJ said at 34:

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

When, in the words of Wilson J. in Barton, there is "a fundamental defect which goes to the root of [a criminal] trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences", an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands.

...

The power to grant a permanent stay of proceedings is a discretionary power. See, e.g., Castro v. Murray; Connelly per Lord Reid, and, per Lord Pearce. The expression "discretionary power" generally signifies a power exercisable by reference to considerations no one of which and no combination of which is necessarily determinative of the result. In other words, it is a power which "involves a considerable latitude of individual choice of a conclusion": Russo v. Russo, per Sholl J. See also Pattenden, The Judge, Discretion, and the Criminal Trial (1982), p. 9. Notwithstanding this latitude, a discretionary power is necessarily confined by general principle. It is also confined by the matters which may be taken into account and by the matters, if any, which must be taken into account in its exercise.

The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J. in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia, that the "prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals". Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (N.S.W.) v. Watson, "sparingly, and with the utmost caution". See, generally, Cocker v. Tempest; Lawrance v. Norreys; Humphrys; and Reg. v. Derby Crown Court; Ex parte Brooks.

...

The features which attend the criminal process enable the general considerations to be refined somewhat in their application to the grant of a permanent stay of criminal proceedings. One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and always has been seen as involving the exercise of an independent discretion inhering in prosecution authorities, which discretion is not reviewable by the courts. Originally, the unreviewable nature of that discretion was seen as an aspect of the prerogative power vested in the office of Attorney-General. See, e.g., Reg. v. Allen. More recently, the unreviewable nature of that discretion has been seen as deriving from the nature of the subject matter to be decided and, perhaps, the incompatibility of judicial review with the ultimate function of a court in a criminal trial. See Barton, per Gibbs A.C.J. and Mason J., per Wilson J. See also The Queen v. Toohey; Ex parte Northern Land Council, per Mason J. Thus, it may be said that the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented. See Humphrys, per Lord Salmon.

Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. See Driscoll v. The Queen. See also Harris v. Director of Public Prosecutions, per Viscount Simon; R. v. Christie, per Lord Reading. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.

(citations omitted)

34. In summary, the power to grant a permanent stay should be exercised sparingly and with utmost caution, only where there is a fundamental defect going to "the root of the trial" and where there is nothing else the trial judge can do to remedy that defect. See also R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 and 615-616.

35. In the matter before me, her Honour's expressed grounds for concluding that the prosecution was an abuse of process were:

(a) that it was oppressive;

(b) that it was foredoomed to fail; and

(c) that the bringing of the prosecution was "quite disgraceful".

36. Her Honour did not articulate the exact grounds on which she considered that the prosecution was oppressive, foredoomed to fail or disgraceful. As noted, her concerns seem to have related to the fact that there was or might be evidence suggesting an assault by the complainant on the defendant, that she considered the complainant's credibility to have been seriously damaged because the claimant had told police that the defendant had "started hitting" her (a claim not made in her evidence in chief), and that the defendant's 000 call to police (which had not been formally tendered at the point when her Honour stayed the prosecution) raised the possibility that he had acted in self-defence.

37. None of these aspects of the prosecution case seems to take it out of the ordinary run of prosecution cases. An offence committed by a complainant might on occasion provide some form of answer to the charge of the accused person (eg by raising the question of self-defence), but would rarely be a bar to prosecution of that accused person. Prosecution witnesses often give evidence that is not entirely consistent with their earlier statements, to police or others; this may well damage their credibility, but it does not imply an abuse of process by the prosecutor (and indeed, to the extent that it relates to the difference between the exact language of the evidence in chief and the earlier statements of the witness, may come as a complete surprise to the prosecutor in court). Defendants often give a different account of the relevant events from that relied on by the prosecution. Factors of this kind may cause difficulties for prosecutors, and in particular may lead to acquittals - but there is no basis for saying that any prosecution that results in an acquittal was therefore an abuse of process.

38. Also significantly, any assessment of the prosecution case as amounting to an abuse of process by reference to the state of the prosecution evidence should not have been made before that evidence was completed and the prosecution had closed its case. The same can be said of her Honour's findings that the prosecution was "foredoomed to fail" and that it was "disgraceful".

39. Her Honour's view that the prosecution was an abuse of process relied significantly on her view that the weaknesses in the prosecution case that had emerged from the complainant's evidence was so dramatic that the prosecution could not have been maintained in good faith.

40. The scope for reviewing the prosecutorial discretion to institute and maintain a prosecution is very limited.

It is no part of the judicial function to decline jurisdiction (whether by granting a stay or otherwise) on the ground that the court disapproves of the charge that has been laid.

42. In Likiardopoulos v The Queen (2012) 247 CLR 265, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at [37]:

The appellant maintained that it was unfair that the Crown should be permitted to advance a case at his trial that the principal offenders were persons from whom it had chosen to accept pleas of guilty to lesser offences. The Director's acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion. As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. Further, sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages. It is well settled that the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court. (citations omitted)

43. Their Honours relied on the comments of Gaudron and Gummow JJ in Maxwell v the Queen [1996] HCA 46; (1996) 184 CLR 501 at 534:

The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as "the prosecutorial discretion". In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s 394A of the Act.

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. (citations omitted)

44. I note at this point French CJ's reservation in Likiardopoulos v The Queen at [2]-[4] as to the complete exclusion of judicial review of prosecutorial discretions; however I am satisfied that his Honour's concerns are not relevant to the matters in issue in this application.

45. In this case, the Magistrate did not articulate any basis on which the prosecutor's persistence with what her Honour saw as a weak case (albeit unfinished) could as such have founded a conclusion that the prosecution was an abuse of process. Nor is it possible to identify any such basis from an examination of the circumstances of the matter.

46. Also relevant in this context is Gaudron J's reminder in Jago (quoted at [33] above) that even where the circumstances for a permanent stay may be found, that particular remedy should be used only in the absence of any alternative remedy. It is clear that in the current case, after the prosecution had closed its case, her Honour could have found that there was no case to answer, or could have given herself a Prasad direction (R v Prasad (1979) 23 SASR 161; 2 A Crim R 45), acquitted the defendant, and made a costs order in his favour. Indeed her Honour's comments as the complainant's evidence proceeded, to the effect that she could use a Prasad direction (rather than finding no case to answer), could be taken to imply that the prosecution case was not in fact missing an essential element so as to justify a no case finding. This makes her Honour's conclusion that the prosecution was an abuse of process even more surprising.

47. For the reasons set out above, I am satisfied that there were no grounds for the Magistrate to stay the prosecution, and that her Honour's order should not have been made.

48. The next question is whether there is any remedy available to the plaintiff.

49. There does not seem to be in the ACT any legislative basis for an appeal against an order staying the prosecution; such an order is not covered in any of the relevant provisions of the Magistrates Court Act (ss 208, 219AB and 219B). As I have noted in earlier judgments (eg Bloxham v Wyte [2013] ACTSC 151, at [49]), as appellate courts regularly point out (eg Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [8]), and despite Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, appeals are creatures of statute and an appeal does not lie in the absence of a statutorily created appeal right.

50. That is why this matter has come before me as an application for judicial review of the Magistrate's decision. The specific order sought is for an order in the nature of certiorari, quashing her Honour's decision, as well as consequential orders remitting the matter to the Magistrates Court, differently constituted, to be heard according to law.

51. In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig), the High Court considered an application for an order in the nature of certiorari under the Supreme Court Rules 1987 (SA) directed to the District Court of South Australia, which the High Court assumed for the purposes of the appeal to be an inferior court (rules 98.01(1) and (2) were to similar effect as s 34B of the Supreme Court Act of the ACT). The High Court said (at 175):

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record. (emphasis added)

52. See also Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal; Faull v Commissioner for Social Housing in the ACT [2013] ACTSC 121 at [109].

53. There is no claim of any fraud, on the Magistrate's part or otherwise. The plaintiff also concedes that there is no error on the face of the record, noting that "the record" does not appear to include a transcript of proceedings (Craig at 180-181), and that whatever errors have been made in this case would not appear on the face of the record of the stay order made by her Honour.

54. Thus, the question is whether either jurisdictional error or a failure to give procedural fairness can be made out so as to justify the making of an order in the nature of certiorari. It is convenient to consider the question of procedural fairness first.

55. In International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, Heydon J said the following at [141]:

The centrality of "hearings". One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.

The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of Parliament unless clearly excluded in a particular context.

57. In R v Lewis [1988] HCA 24; (1988) 165 CLR 12 at 17, the High Court (Wilson, Brennan, Dawson, Toohey and Gaudron JJ) on a special leave application said:

The Crown is as much entitled to natural justice as any other litigant.

58. It is clear that in this case, her Honour did not give the prosecution procedural fairness. The fundamental failure occurred when, at the end of the lunch adjournment, her Honour announced her determination that the prosecution should be stayed, and proceeded to give her reasons for doing so, without inviting submissions from either party. I note that none of her Honour's earlier expressed concerns about the proceedings had drawn submissions about staying the prosecution from either the defendant or the prosecutor, although the prosecutor had several times tried to outline the further evidence he expected to be able to lead.

59. The Magistrate began to give her reasons for staying the prosecution some 15 minutes before the time at which Mr Drumgold was due to attend before her. The prosecutor interrupted the Magistrate, twice, to say that Mr Drumgold would arrive shortly. However, her Honour indicated only that if he arrived in time he would also hear her reasons, and then continued. Having given her reasons, the Magistrate invited the defendant to seek costs, and asked whether the prosecutor wanted to be heard on costs.

60. By that point, Mr Drumgold had arrived. Her Honour then questioned him about why the prosecution was brought, but formally made the stay order before inviting him to address her on those questions.

61. In summary, the stay order was made without any application by either party and without either party having an opportunity to make submissions about whether such an order should be made.

62. This failure of procedural fairness was compounded in my view by the facts that her Honour's decision was announced:

(a) before her Honour had even heard all the evidence of the complainant, let alone any evidence from the other witnesses mentioned by the prosecutor; and

(b) 15 minutes before Mr Drumgold's expected arrival (despite the fact that her Honour had initially requested the attendance of a senior DPP representative to explain the prosecution to her, and when Mr Drumgold's unavailability until 2.15 pm had earlier been explained by the prosecutor, her Honour had not indicated that this was unsatisfactory to her or that she was not prepared to wait).

63. I am satisfied that an order in the nature of certiorari could be made on the basis of her Honour's failure to give procedural fairness in ordering a permanent stay of the proceedings against the defendant.

64. The High Court in Craig explained jurisdictional error in relation to inferior courts (at 177-178):

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

66. Whether there was in this case jurisdictional error as described by the High Court in Craig is less clear. As I have already found, the Magistrates Court does have the power to grant a stay to prevent an abuse of process (see [23] to [30] above). There is no basis on which to argue that such an order is outside the Magistrates Court's jurisdiction. Stay being a discretionary common law remedy, it is hard to identify an absence of jurisdiction to make such an order in the way that may be readily done where jurisdiction is subject to statutory pre-requisites. In Craig, the High Court at 178-179 noted the distinction between jurisdictional error by an inferior court and jurisdictional error by an administrative tribunal, explaining that many errors made by administrative tribunals may cause the tribunal to exceed its authority or powers, such that the error amounts to jurisdictional error, but that a demonstrable mistake by an inferior court:

in the identification of [relevant] issues or the formulation of [relevant] questions will commonly involve error of law [but that such a mistake] will not ... ordinarily constitute jurisdictional error.

67. Although I consider that there was a clear absence of any arguable basis for finding that the prosecution was an abuse of process, I hesitate to conclude that it was so clear as to establish an incontrovertible absence of "jurisdiction" on her Honour's part. It is hard in relation to a discretionary power to say that an exercise of that power purportedly based on the application of correct (if incomplete) legal principles to the actual circumstances of the particular case is outside the possible scope of that discretionary power, notwithstanding that it appears in the particular case to have involved a clearly erroneous application of principle to facts. An error in the exercise of a sentencing discretion, for instance, may enable the sentence to be overturned on appeal, but would rarely if ever satisfy the test for jurisdictional error.

68. The plaintiff referred me to the case of Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, in which the High Court accepted a failure to give natural justice to an applicant before the Refugee Review Tribunal as jurisdictional error sufficient to found an order for prohibition. Since a failure of procedural fairness is in any case recognised as a basis for granting certiorari (at [52] above), there does not seem to be any particular utility in the current case in finding that such a failure may also amount to jurisdictional error; given also the distinction drawn in Craig between review of tribunal processes and review of judicial processes, and in the absence of a contradictor, I do not propose to pursue this issue.

69. Accordingly, the order in the nature of certiorari will be made by reference to the failure to give procedural fairness, not in reliance on a finding that the Magistrate fell into jurisdictional error in staying the prosecution.

70. However, the decision to grant certiorari on the basis of a failure of procedural fairness rather than a finding of jurisdictional error should not be taken to indicate that, provided procedural fairness is given before any stay order is made, there is no limit on the Magistrates Court's power to stay a prosecution as an abuse of process. There is no doubt that the discretion to stay a prosecution is a judicial discretion that should be exercised judicially and on proper grounds.

(a) quashing the decision of the Magistrate to stay the prosecution; and

(b) remitting the prosecution to the Magistrates Court, differently constituted, to be determined according to law.

72. I shall hear the parties and, having regard to the circumstances described at [7] above, the solicitor instructed by the second defendant in the Magistrates Court, about costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Counsel instructed in the Magistrates Court by the second defendant:

Solicitor instructed in the Magistrates Court by the second defendant: