Did the primary judge err?
32 In my opinion, it is clear from the course of the proceedings before Magistrate Stapleton on 8 May 2001 that, firstly, there was never any adjudication of the charges on their merits; secondly, the opponent consented to the charges being withdrawn; thirdly, it was made clear by the solicitor for the informant that it was not intended that the use of the formula "withdrawn and dismissed" should prevent the charges being brought again; fourthly, this was accepted (at least inferentially) by senior counsel for the opponent who, fifthly, was only concerned with the marking of the papers as dismissed to ensure that the opponent's claim for costs of the Local Court proceedings was kept alive after the charges were withdrawn, there being no summons which could be dismissed to form the jurisdictional foundation for an order for costs in the opponent's favour.
33 Although the opponent's amended defence to the statement of claim asserted that the effect of the dismissal of the informations was to give rise to res judicata, issue estoppel and/or abuse of process, it is clear (and the opponent accepted at the hearing of the appeal) that in the circumstances no question of issue estoppel or abuse of process could arise. So far as res judicata was concerned, it was also accepted that upon the basis that the proceedings in the Local Court were criminal proceedings, the civil law concept gave way to the more appropriate defence of autrefois acquit.
34 In the context of the foregoing, the claimant relied upon the decision of the Full Court of Victoria (comprising a Bench of five judges) in R v Galvin (No 2) [1961] VR 740. In that case the applicant was charged on two informations with assaulting a member of the police force in the execution of his duty and resisting a member of the police force in the execution of his duty. When the matter came on for hearing the applicant was not called upon to plead to either charge. On the application of the informant the charge for assault was withdrawn but as the informant stated to the magistrate that he had no instructions as to what application he should make with respect to the resisting charge, the magistrate said he would dismiss the charge and the court reporter recorded the decision as "dismissed". In the meantime, the appellant had been charged before the Court of General Sessions with having assaulted, resisted or wilfully obstructed a member of the police force in the execution of his duty. A jury found him not guilty of assault but guilty of resisting. The question that arose was whether the dismissal of the charge of resisting by the magistrate was a bar to the applicant's conviction in the Court of General Sessions on the same charge. No plea of autrefois acquit was made at the trial but only after the guilty verdict was the matter raised. Nevertheless, the Full Court dealt with the issue in a manner particularly relevant to the present case.
35 In their joint judgment, O'Bryan, Dean and Hudson JJ (with whom on this point the dissenting judges Barry and Sholl JJ agreed) held that the applicant could not have successfully availed himself of the plea of autrefois acquit even if he had raised the plea when arraigned. They said (at 743):
"Undoubtedly the information was 'dismissed' before issue had been joined between the parties. The applicant was never called upon to plead to the charge contained in the information and the trial of his guilt or otherwise of the offence charged was never commenced. The withdrawal of the information or its purported 'dismissal' by the magistrate for that reason does not operate as an autrefois acquit ."
36 Their Honours then referred to the decision of the High Court in Broome v Chenoweth (1946) 73 CLR 583 and in, particular, to the following passage from the judgment of Dixon J (at 599):
"The rule against double jeopardy requires for its application not only an earlier proceeding in which the defendant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings but that the earlier proceeding should have resulted in his discharge or acquittal. This last requirement may be satisfied by something less than an actual adjudication upon the truth of the allegations contained in the charge or upon the existence of some exculpatory fact. It may be enough if the judgment or order pronounced in favour of the person who stands in jeopardy must, according to its legal construction, imply a failure upon the part of the prosecution to make out the charge or some ingredient therein or even a preliminary condition legally indispensable to a conviction, that is if the condition is of a kind that cannot be fulfilled after the failure of the earlier charge and before the laying of the later charge.
In the present case the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal. That being so, I see no reason why the actual order dismissing the information, although expressed to be for want of prosecution, should not amount to a sufficient discharge affording a bar to further prosecution, if the other requirements are satisfied upon which a defence of prior acquittal depends."
37 In their joint judgment, their Honours considered that the words "the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal" in the above passage referred to the fact that the applicant had answered and pleaded to the information and was thereby placed in jeopardy and was in the hands of the Court. They continued (at 744-5):
"In the present case, however, the applicant never was in jeopardy of a conviction and there never was a hearing of any sort. The information was 'dismissed' before the process of adjudication was even entered upon. Whatever expression was used by the magistrate to dispose of the case, the applicant's position resembles a case in which the Attorney-General has entered a nolle prosequi before the defendant is called upon to plead. Such a course does not operate as a bar to further prosecution for the same offence on the same facts."
38 Although the decision in Galvin was overruled by the High Court in The Queen v Reynhoudt (1962) 107 CLR 381, the disapproval of the High Court did not relate to that part of the Full Court's judgment with which I am presently concerned and which has been applied in a number of cases since: see Barnes v Gougousis [1969] VR 1019 at 1022; Callahan v Broomham (1996) 68 IR 66 at 70.
39 The decision on the issue of autrefois acquit in Galvin is consistent with the commentary in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed para 308 where it is pointed out that for the plea to succeed there must have been in substance an acquittal on the merits. The learned authors deal with the nature of such an acquittal in [231] in the following terms:
"It [the plea of autrefois acquit ] will not apply unless the first proceeding was a prosecution on a criminal charge which terminated in favour of the accused. However, not every termination will support the plea. Thus the discharge of a jury before verdict is not an acquittal nor is the withdrawal of a summons. There must in substance have been an acquittal on the merits. It is essential that the defendant was in jeopardy on the prior charge. Thus the hearing of the earlier proceedings must have commenced either by a plea in summary proceedings or by the accused being put in charge of the jury in a trial on indictment. If thereafter a charge or count is dismissed, albeit without a hearing on the merits, the prosecution may not institute fresh proceedings on the same or an essentially similar charge or count. This may depend on the court's power to prevent an abuse of process rather than on the plea of autrefois acquit . If the summary dismissal of a charge or count occurs because it is defective, the defendant will never have been in jeopardy. In particular, a consensual dismissal of an original charge upon the substitution of a new one will not support a plea of autrefois acquit . The Supreme Court of Canada has held that a stay of proceedings for abuse of process is equivalent to an acquittal on the merits."
40 It is clear from the foregoing, and was ultimately conceded by counsel for the opponent, that on the basis of the decision in Galvin, it was not open to the opponent to plead autrefois acquit as a defence to the charges set forth in the statement of claim. Furthermore, even if one were to apply the principles of res judicata, as with autrefois acquit the same result would follow. Recently, this Court in Zaravinos v Houvardas [2004] NSWCA 421 dealt with a case where the respondent made an application to the Local Court under the Family Law Act 1975 seeking, inter alia, a declaration that the transfer of certain properties was void. Having been advised that the application was not "correct", the applicant filed consent orders that the applications be withdrawn and dismissed. He then instituted proceedings in the Equity Division of the Supreme Court seeking the same relief as had been sought in the Local Court. It was submitted in those proceedings that the dismissal by the Local Court of the applications commenced by the applicant under the Family Law Act constituted a res judicata estopping him from instituting the equity proceedings.
41 This issue was dealt with by Sheller JA, with whom Handley and Ipp JJA agreed, in the following terms (at [65]):
"The withdrawal and hence dismissal of a claim for reason that the relief sought was thought to be beyond the jurisdiction of the tribunal is not res judicata . Res judicata is founded upon judicial determination upon the merits or by admission or consent. Withdrawal of an application to a court for the reasons stated here is the antithesis of a judicial determination. The dismissal flows from the withdrawal and not from any judicial determination arrived at on the merits or by admission or consent: see generally, Res Judicata, Spencer Bower Turner & Handley, 3rd ed, para 31-33."
42 As I have already noted, the course of proceedings before Magistrate Stapleton did not involve any form of judicial determination arrived at on the merits: nor did the informant consent to the dismissal of the informations as if on the merits. As in Galvin, the opponent was never called upon to plead to the charges contained in the informations and the trial of his guilt or otherwise of the offences charged was never commenced. The informant sought to withdraw the informations and the opponent consented thereto. The order dismissing the informations was purely for the purpose, possibly agreed to by the informant and certainly sought by the opponent, of preserving the Local Court's jurisdiction to deal with the question of costs. That was its only purpose. As it turned out, the Local Court's power to order costs in favour of the opponent was not dependant upon s 81 of the Justices Act or upon any order dismissing the informations but rested on the provisions of s 263 of the Act.
43 It follows from the foregoing that the primary judge erred when he disregarded the context in which the informations were dismissed and which he acknowledged as relating to the question of costs. No proper basis existed to justify his finding that a res judicata, an issue estoppel or an abuse of process precluded the claimant from proceeding in the Supreme Court pursuant to its statement of claim. However, it must be pointed out that his Honour was not assisted by being referred to the decisions in Galvin or Zarovinos (the latter of which, of course, had not then been decided). If he had, he may have been led to a different conclusion.