Conservation and Land Management Act 1984, s62(1)(d)

Criminal law - General Principles - Other general matters - Presumption of regularity - Common law and statutory presumption - Whether there is a distinction - Whether applicable in criminal prosecutions - Evidence required to rebut presumption Interpretation Act 1984 s43(3)

Criminal law - General Principles - Prosecution founded on subordinate legislation - Whether collateral attack can be made on administrative acts in courts of inferior jurisdiction.

Second Appellant : Mr R M Mitchell & Mr J A Thomson

First Respondent : Mr R M Mitchell & Mr J A Thomson

First Appellant : Environmental Defender's Office of Western Australia

Second Respondent : Environmental Defender's Office of Western Australia

Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147

Bennison (1995) 78 A Crim R 406

Bradshaw v R, unreported; FCt SCt of WA; Library No 970228; 13 May 1997

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

DPP v Head [1959] AC 83

Flynn v DPP [1998] 1 VR 322

Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588

Kruse v Johnson [1898] 2 QB 91

Leichardt Municipal Council v Minister for Planning (1992) 78 LGERA 306

Leung & Anor v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 76

Luff v Oakley (1986) 65 ACTR 19

R v Broughton (1976) Tas SR 143

R v National Insurance (Industrial Injuries) Commissioner; ex parte Richardson [1958] 1 WLR 851

R v Reading Crown Court; ex parte Hutchinson [1988] 1 QB 384

R v Wicks (1995) 93 LGR 377

R v Wicks [1997] UKHL 21; [1997] 2 WLR 876

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40

Robertson v State of Western Australia, unreported; FCt SCt of WA; Library No 970095; 17 March 1997

Smith v Brown [1978] WAR 157

Sparks v Bellotti [1981] WAR 65

SS Constructions Pty Ltd v Ventura Motors [1964] VicRp 32; [1964] VR 229

Strickland v Killen [1983] Tas R 31

Tasker v Fullwood [1978] 1 NSWLR 20

Thompson v Goold [1910] AC 409

Vuleta v Tilley, unreported; SCt of WA; Library No 7684; 31 May 1989

Walsh v Guimelli [1975] WAR 114

These two appeals are brought by leave from a decision by Parker J allowing an appeal against certain orders made by the learned Magistrate. The matter before the learned Magistrate was a prosecution under the Conservation and Land Management Act (WA) ("the CALM Act"). Ms Donna Selby was the accused and Mr Peter Adrian Joseph Pennings the complainant. The relevant charge was formulated as follows:

"On the 5th day of May 1995 at Sharpe Block near Walpole Donna Selby not being authorised by the Executive Director of the Department of Conservation and Land Management, entered an area of State forest No 59 known as Sharpe Block that was classified under section 62 of the Conservation and Land Management Act 1984 as a temporary control area by notice published in the Gazette ... contrary to Regulation 86(a) and (e) of the Forest Management Regulations 1993 made under the Act."

The notice classifying the area of State forest No 59 as a temporary control area was put into evidence as part of the prosecution case. It read as follows:

"CONSERVATION AND LAND MANAGEMENT ACT 1984

NOTICE OF CLASSIFICATION OF A TEMPORARY CONTROL AREA

1. Land comprising parts of State Forest No 59 and referred to in the Schedule hereto ('the Land') is State forest vested in the Lands and Forest Commission ('the Commission').

2. I have approved the Forest Management Plan 1994-2003, which specifies a purpose for which the Land is reserved as being timber production on a sustained yield basis.

3. In accordance with that management plan, logging and associated activities, including establishment of logging roads, roading activities have commenced or are about to commence on the Land.

4. Those roading activities pose a danger to the safety of any member of the public who may enter onto the Land.

5. The Commission has recommended to me that, in the interests of public safety, part of the Land be classified as a temporary control area.

Now, pursuant to section 62(1)(d) of the Conservation and Land Management Act 1984, I hereby classify the Land referred to in the Schedule to this Notice as a temporary control area.

This classification has effect for a period of 90 days from the publication of this Notice in the Gazette.

All of the land shown bordered green on CALM registered Plans 1770 and 1774 titled 'Temporary Control Areas', and held in the custody of the Executive Director of the Department of Conservation and Land Management but excluding all gazetted public roads.

Before the learned Magistrate, Ms Selby contended that the notice was void, being ultra vires the powers of the Minister under s62(1)(d) of the CALM Act. This submission was upheld by the learned Magistrate who, on that basis, concluded that there was no case for Ms Selby to answer. The learned Magistrate dismissed the complaint and ordered the complainant to pay costs of the hearing which were fixed at $12,000.

The complainant appealed against these orders. Parker J held that the learned Magistrate wrongly concluded that the notice was void and therefore his Worship was in error in upholding the submission that there was no case to answer. In the course of the hearing before his Honour the complainant submitted that it was not open for Ms Selby, in the proceedings before the learned Magistrate, to mount a collateral challenge to the validity of the notice. Parker J disagreed with this contention. In the result, his Honour allowed the appeal and set aside the decision dismissing the complaint and the order for costs. His Honour ordered that the matter be remitted to the learned Magistrate "for him to continue with the hearing and determination of the complaint in the light of these reasons".

Ms Selby appeals to this Court against the orders made by Parker J. Essentially, Ms Selby contends that his Honour erred in finding that the learned Magistrate was wrong in concluding that the notice was invalid. The complainant appeals on the ground that Parker J erred in deciding that it was open to Ms Selby, in the course of the proceedings before the learned Magistrate, to attack the validity of the notice. Although the issue of costs was not formally part of the appeal, both parties made submissions in regard thereto on the basis that, practically speaking, it was in the interests of justice for this Court to determine whether the order made by the learned Magistrate in regard thereto was appropriate.

The first argument raised by Ms Selby was that the notice was invalid on its face. The argument proceeded as follows:

(1) Section 7(1) of the CALM Act provides in effect that State forest No 59 is vested in the Lands and Forest Commission ("the Commission"). Accordingly, para 1 of the notice means that the area of land defined in the notice as "the Land" is the land described in the schedule thereto. In the end, Mr Mitchell (who appeared for the Crown in this appeal) did not dispute this proposition.

(2) Thus, para 5 of the notice means that the Commission recommended to the Minister that, in the interests of public safety, part of the land described in the schedule be classified as a temporary control area.

(3) Despite the fact that the Commission recommended that only part of the land be classified as a temporary control area, the Minister - by the notice - classified all the land described in the schedule.

(4) The Minister's power to classify land as a temporary control area is derived from s62(1) of the CALM Act which provides:

"Subject to this section, the Minister may, on the recommendation of a controlling body ... by notice published in the Gazette, classify the whole or any part of land or waters that is vested in that controlling body as -

(e) a recreation area for a purpose or purposes specified in the notice; or

(f) such other class of area as the Minister on the recommendation of the relevant controlling body, thinks necessary to give effect to the objects of this Act,

and may in like manner amend or cancel a notice previously so published."

(5) The Minister, therefore, may only classify land as a temporary control area "on the recommendation" of a "controlling body" within the meaning of s62(1). The Commission is such a controlling body.

(6) The recommendation of the Commission was that "part of the Land" be classified as a temporary control area. But the Minister classified all of the Land. Hence, it is said, the Minister went beyond his powers.

The merits of this argument turns on what is meant by "on the recommendation" of the Commission within the meaning of this phrase in s62(1). This is essentially a matter of statutory construction.

Dr Schoombee, counsel for Ms Selby, submitted that for a classification to be "on the recommendation" of the Commission, it would have to mirror the recommendation precisely. Two principal arguments were advanced in support of this proposition.

Firstly, it was said that as land has a spatial dimension, there could be no uncertainty as to the precise boundaries of the land recommended for classification, and therefore a classification of land beyond the specific area recommended could never be a classification on the recommendation of the Commission.

Secondly, attention was drawn to reg 86 of the Forest Management Regulations made under the CALM Act which provides:

"A person shall not, without the authorisation of the Executive Director ... enter any area of -

that is classified under section 62 of the Act as -

Under the the CALM Act, a person who contravenes reg 86 commits a criminal offence. Accordingly, it was submitted that as a classification of land by the Minister may result in criminal offences being committed by persons who enter classified land without the requisite authority, the Minister's power to classify should be strictly construed. In particular, s62 should not be construed so as to empower the Minister to classify land exceeding the area recommended by the Commission.

Mr Mitchell, counsel for the complainant, disputed this argument. He rested his submission on the following remarks of Wells J in Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 548:

"A thing may be recommended in general terms, in more specific terms, or in terms of great particularity. If the recommendation comes in general terms, the plain implication is that the person receiving it will not forfeit the approbation with which the thing is introduced if he exercises his own discretion over detail. But if the thing recommended is propounded with a wealth of detail, every variation introduced by the person making use of the recommendation tends to increase the probability that the accompanying approbation would not be given to the final result. The person considering the recommendation may have the power to make variations, perhaps extensive variations, or even to disregard what was introduced, but if he does so, he may then be acting 'after consideration of (or receiving) the recommendation', but not 'on the recommendation'.

A person may, in my opinion, only act on a recommendation if, after consideration of it, he adopts it in substance and makes only such variations in what was originally commended as would, in all the circumstances, not forfeit that commendation. In short, the more detailed the recommendation, the more complex and comprehensive the machinery by means of which the recommendation is reached, the less scope will there be for departure, by the person acting on the recommendation, from its terms."

Mr Mitchell's basic proposition was that a classification of land as a temporary control area should be regarded as being "on the recommendation" of the Commission if the land so classified is, in substance, the land recommended to be classified. Thus, on this construction, it would be open to the Minister to classify a different area of land to that recommended by the Commission for classification, as long as the area classified was, in substance, the area recommended for classification.

In Egarr v Registrar of Board of Optical Registration [1952] SASR 163 Napier CJ was concerned with a statute which empowered the Governor to make regulations "on the recommendation of the Board". In construing the statute concerned, the learned Chief Justice said that:

"It may be a question of fact and degree whether the regulation has been made 'on the recommendation of the Board'."

The Board in that case recommended regulations which included a provision that would entitle an applicant who had been engaged "for at least three years" in the practice of optometry in the United Kingdom to be registered as an optometrist. The regulation made by the Governor did not include the words "for at least three years". Napier CJ concluded that the regulation was made "on the recommendation of the Board", notwithstanding that the requirement of being engaged for at least three years in the practice of optometry in the United Kingdom had been omitted.

In Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide, Wells J at 545 pointed out that the expression "on the recommendation of" "has no fixed and settled meaning disengaged from its particular statutory context". The meaning of the expression depended on its immediate context and the relevant statute as a whole. The issue for determination was whether the context and the statute signified "an intention as to how far the regulations made are expected or permitted to depart from the very words of the recommended draft".

In my opinion, the approach of Wells J should be followed. This was indeed the view of Parker J, who made a careful and extensive examination of s62 and the general scheme of the CALM Act. In so doing his Honour referred to several relevant factors which support the argument of the complainant. I shall mention some of them.

The language of s62 is permissive and, as Parker J pointed out, does not require the Minister "to act at all, or to act in any particular manner, or to observe any particular procedure other than the need for a recommendation and publication" when classifying land or waters vested in a controlling body. Section 62(1)(f) confers a wide discretion on the Minister that enables him to classify other classes of areas where that is necessary to give effect to the objects of the Act. Once a wide discretion of that kind is vested in the Minister, it would be surprising if his discretion were rigidly restricted in regard to the specific areas listed in s62(1)(a) to (e), particularly in regard to a temporary control area classified for the purposes of public safety. His Honour further pointed out:

"It would be surprising that the legislature should intend that a notice limiting access in the interests of public safety should be of no legal effect for mere technical reasons or for a failure strictly to follow the recommendation of a controlling body."

Parker J compared the statutory scheme of s62 (relating to classification of land) with that relating to the development and approval of management plans. Management plans are subject to public notification and before a management plan is submitted by the controlling body to the Minister for approval, the management plans are subject to public notification and written submissions. This is to be contrasted with the statutory scheme of s62, which does not require any form of notice to, or involvement of, the public or any body whatever other than the controlling body.

Parker J noted that "the scheme of the [CALM] Act in many respects is indicative of a real place for ministerial decision and influence over policy in addition to the role of the controlling body". This is particularly the case in regard to the classification of land under s62(1). As the learned Judge pointed out, s62(1) does not require a recommendation to specify with precision the area of land or waters the subject of a recommendation for classification.

The above mentioned matters support the inference that the Minister, in exercising his powers under s62(1), is entitled to use a degree of discretion. In my view, the factors to which Dr Schoombee referred (which tend to support a different conclusion) are not of sufficient weight to persuade me that, in terms of s62(1), the area classified must mirror the area recommended by the controlling body, and that, should there be any difference, the classification will be invalid. In my opinion, s62(1) is to be construed as meaning that the Minister can classify land "on the recommendation of a controlling body" by classifying land of an area different to that recommended, as long as the land classified is, as a matter of fact and degree, in substance the land the controlling body recommended to be classified.

I therefore agree, with respect, with Parker J that the mere fact that the Commission recommended that part of the land be classified as a temporary control area, whereas the Minister classified all the land, does not necessarily invalidate the notice. In my view, the notice will only be invalid if the Minister's act in classifying all the land was not, in substance, an act performed on the recommendation of the Commission to classify part of the land. Whether the classification was, in substance, on the recommendation of the Commission, depends on a comparison between the part of the land that the Commission recommended be classified and all the land that the Minister in fact classified. This, essentially, is the question of "fact and degree" referred to in Egarr v Registrar of Board of Optical Registration and Myer Queensland Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide.

It was submitted on behalf of Ms Selby, in the alternative, that the words of the notice itself establish that the classification of all the land as a temporary control area was not in substance a classification on the recommendation of the Commission. This submission rested on the proposition that a classification of all the land, by its very nature, inevitably would have to be significantly different from a recommendation to classify part of the land. I do not agree with this argument. As I have mentioned, the actual area of the land which the Commission recommended to be classified as a temporary control area is not known. It is possible that the recommended area might have been relatively very large, so large that the difference between all of the land and the part of the land recommended for classification was so small as to be insufficient to establish that the Minister did not act on the recommendation of the Commission. It follows, in my view, that the notice is not invalid on its face.

Although Ms Selby raised the validity of the notice at the trial before the learned Magistrate, the recommendation by the Commission was not proved and no evidence (apart from the notice itself) was led to establish that the Minister acted on the recommendation of the Commission. The prosecution relied on the presumption of regularity encompassed in the Latin maxim omnia praesumuntur rite esse acta. This presumption has long been part of the common law and has statutory force by s43(3) of the Interpretation Act 1984 which is to the following effect:

"It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed."

According to Best On Evidence (9th Ed) at 308 the true principle conveyed by the common law rule is that:

"[T]here is a general disposition in courts of justice to uphold official, judicial, and other acts, rather than to render them inoperative; and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption rests solely on grounds of public policy."

This is consistent with the statement approved by Griffith CJ in McLean Bros & Rigg Limited v Grice [1906] HCA 1; (1906) 4 CLR 835 at 850, namely:

"It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act."

There seems little difference between the common law presumption and the statutory rule. Both, it seems to me, apply only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met. If this is correct, the presumption has no application to whether the classification of all the land was on the recommendation of the Commission, as this issue is a matter of substance, and not of form. On this view of the presumption, the fact that a recommendation was made will be presumed, but not that the land actually classified was in substance on that recommendation. I shall, however, assume that, generally speaking, the presumption may be applicable to the substantive question concerning the validity of the notice.

As was observed by Griffin and Goldring: Proof of the due exercise of delegated powers (1974) 48 ALJ 118:

"The cases which have been concerned with the proof of conditions precedent by reference to the omnia praesumuntur rule are remarkably inconsistent. On the one hand, cases may readily be found which accord the maxim an extremely wide application, as if there is always a presumption that conditions precedent to the performance of subordinate actions have been complied with. On the other hand, cases may be pointed to in which courts have declined to uphold the subordinate legislation or act by applying the maxim."

Perhaps the reason for the inconsistency in approach is explained by the observation in Best On Evidence (ibid) at 308:

"The extent to which presumptions will be made in support of acts depends very much on whether they are favoured or not by law, and also on the nature of the fact required to be presumed."

On any examination of the authorities it is apparent that the application of the presumption is not dependent on some readily defined principle, but on the peculiar circumstances of each particular case.

There are two circumstances that are of particular relevance in the present instance. Firstly, the presumption is said to arise in a criminal prosecution. Secondly, the notice itself calls into question the validity of the classification, at least to the extent that it discloses that the recommendation was only in respect of part of the land whereas the Minister classified all the land.

In dealing with the presumption, Parker J referred to Bolton v Dance [1968] VicRp 83; [1968] VR 631 where Gowans J examined a number of cases dealing with its application and said (at 641):

"These cases, in my opinion, show no more than that the presumption of regularity will not be applied to the making of regulations, proclamations or ordinances if there is an apparent defect on the face of them."

His Honour held that as, in the language of Gowans J, there was not "a defect apparent on the face of the [notice]", the presumption should apply. Parker J recognised that the reference to part of the land being recommended for classification did give rise to a question as to the validity of the notice, but this discrepancy - for the reasons previously expressed - did not amount to a defect in the notice rendering it patently invalid. This, in his Honour's view, allowed the application of the presumption.

It is to be noted, however, that in Bolton v Dance, not only was there no defect apparent on the face of the regulations concerned, but the regulations themselves did not reveal anything which cast doubt on their validity. The same position obtained in regard to the other cases considered by Gowans J in Bolton v Dance, such as Lucerne v Collins, Matlock v Murphy [1926] VicLawRp 22; [1926] VLR 170, Foster v Aloni [1951] VicLawRp 69; [1951] VLR 481, Walter v Parry [1952] VicLawRp 4; [1952] VLR 19 and Lucerne v Collins [1967] 1 NSWR 407. Thus, it seems to me, the reference by Gowans J to a "defect" on the face of the instrument the subject of challenge has to be seen in this context. His Honour was not addressing the issue whether - to preclude the application of the presumption - the instrument had to be patently defective, or whether it was sufficient for a serious question as to its validity to arise on its face.

According to s43(3) of the Interpretation Act, the presumption applies "in the absence of evidence to the contrary". Parker J also relied on this phrase in concluding that s43(3) was applicable. His Honour said:

"It is the effect of s43(3) that there is a presumption that all preliminary steps precedent to the making of a notice under s62(1) of the Act have been complied with and performed 'in the absence of evidence to the contrary'. In this case, there being no other relevant evidence, is there evidence to the contrary provided by the terms of the notice itself? While the notice may give rise to a question whether the difference which it reveals, between the recommendation and the classification made by the notice, is such as to cause the classification by the notice not to be made 'on the recommendation of a controlling body', it seems to me that it is not sufficient to constitute evidence 'to the contrary', that is, evidence that there has not been compliance with a preliminary step precedent to the valid publishing of the notice classifying the relevant land. The distinction which I see is between evidence (afforded by the terms of the notice itself) which provides a basis for inquiring whether there has been a sufficient compliance with a preliminary step precedent, and evidence which actually indicates that a preliminary step precedent has not been complied with so as to displace the statutory presumption that there has been compliance. In this case the terms of the notice do no more than raise a question. They do not provide evidence of non-compliance because the notice may be valid even though it deals with an area of land greater than the area the subject of the recommendation of the controlling body."

The evidence provided by the terms of the notice is of course that while the recommendation was for the classification of part of the land, the Minister classified all of the land. This is evidence which tends to contradict the proposition that the classification by the Minister was on the recommendation of the Commission, although it is not proof that the classification was not on the recommendation of the Commission. Does "evidence to the contrary" require sufficient evidence on which a court might rely to hold the notice to be invalid? Or merely to raise a doubt as to validity?

In Machirus v Police [1983] NZLR 764 Cooke J, in giving the judgment of the New Zealand Court of Appeal, contrasted the words "evidence to the contrary" in s122 of the Gaming and Lotteries Act (NZ) with the words "until the contrary is proved" in another section of the Act and said at 767:

"The language of s122 [i.e. 'evidence to the contrary'] is not apt to impose any burden of proof on a defendant, even on the balance of probabilities. Under the formulae in s122 to displace the statutory 'sufficient proof' it is enough if the defendant can point to evidence to the contrary, either in the evidence for the prosecution or in the evidence for the defence or in both."

Any view of what is meant by "evidence to the contrary" in s43(3) of the Interpretation Act, must have due regard to the nature of the case concerned and all relevant circumstances pertaining thereto. In the present case, a factor of paramount importance is that the presumption is sought to be applied in the course of a criminal prosecution.

There are diverging lines of authority as to whether the common law presumption of regularity applies at all in criminal proceedings. In Lucerne v Collins the defendant was charged with an offence under a local government ordinance. A prerequisite for validity of the ordinance was the existence of a recommendation of the Commissioner of Main Roads. There was nothing on the face of the ordinance to show that the Commissioner's consent had been given. McClemens J held that the presumption of regularity did not apply. His Honour said (at 254-255):

"This was a criminal charge and whether the issue in a criminal case is big or small, it is still a criminal case and traditionally under our system the obligation of proving that case beyond a reasonable doubt is on the prosecution ... Even though this might be a small case the fact remains that the informant, an officer of the Main Roads Department, could have had access to the recommendation whereas the citizen does not have; and if it is elected to leave the proclamation dealing with two subject matters that arise in different ways in a form where a reference to the recommendation does not appear on the face of it, citizens shall not be compelled in effect to accept an onus which is put on them by having to take out subpoenas, get the attendance of officers, and take all other necessary steps to prove the lack of recommendation."

Accordingly, McClemens J held that the Magistrate rightly concluded that the presumption of regularity did not assist the prosecution.

Lucerne v Collins has been followed in New South Wales by R v Martin (1967) 67 SR (NSW) 404 and LS v Director General of FACS (1990) 18 NSWLR 481, and in Victoria by Matlock v Murphy. The South Australian decisions of Hollobone v Foley (1980) 23 SASR 251 and Rice v Daire (1982) 30 SASR 560 are to the same effect.

In Scott v Baker [1969] 1 QB 659 the relevant legislation required a device used for breath tests indicative of blood alcohol to be approved by the Secretary of State. There was inadequate evidence to prove the approval. The defendant was charged with having driven a motor vehicle with an excessive amount of alcohol in his blood, according to the device in question. The charge was dismissed by the justices despite the fact that the prosecution relied on the presumption of regularity. Lord Parker CJ at 673 said:

"[Once] there is an issue raised as to whether the device in question had been approved, then as it seems to me ... something more remains to be done, and that is to prove other than by way of a rebuttable presumption, because the presumption has been challenged, that approval was given to the type of device used."

"Bearing in mind that this is a criminal case, it seems to me that it would be going much too far to press the presumption of omnia praesumuntur to the length of saying that there was a prima facie case here that the device used was of a type approved by the Secretary of State."

In Dillon v The Queen [1982] AC 484 Lord Fraser, giving the judgment of the Privy Council, said at 487:

"Their Lordships are of opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant ... The lawfulness of the detention was a necessary precondition for the offence of permitting escape, and it is well established that the courts will not presume the existence of facts which are central to an offence."

In Schlieske v Federal Republic of Germany (1987) 14 FCR 424 the Full Court of the Federal Court said at 432:

"There is no room for presumptions in favour of the executive where the liberty of the subject is concerned: see Dillon v The Queen [1982] AC 484 at 487."

I appreciate that the present case does not involve an offence concerning the liberty of the subject, but the remarks quoted illustrate the fact that the application of the presumption of regularity is a flexible concept, and its application in criminal cases is restricted.

As I have mentioned, the authorities are not consistent. In Australia, the reasoning in cases such as Lucerne v Collins, R v Martin, LS v Director General of FACS, Hollobone v Foley and Rice v Daire has not always been followed. There are several criminal cases in which the presumption has been applied: see Bolton v Dance, Shire of Flinders v T W Maw & Sons (Quarries) Pty Ltd [1971] VR 485, Walter v Parry and Foster v Aloni.

I shall not attempt to reconcile the different authorities as it is a task of some considerable difficulty - if it is at all possible (see in this regard the attempt made by Griffin and Goldring: Proof of the due exercise of delegated powers, ibid). In my view, however, the reasoning of McClemens J in Lucerne v Collins as to the application of the common law presumption is persuasive and is consistent with the high English authority of Scott v Baker and Dillon v The Queen. In my opinion the line of authority stemming from that case is to be preferred. I recognise, however, that the further question arises as to whether this line is applicable to the statutory presumption under s43(3) of the Interpretation Act. While I incline to the view that it is (see s3(1)(b) of the Act), for the reasons set out below, it is unnecessary to come to a final decision on the issue.

It seems to me that the authorities as a whole establish, generally, that where, in a criminal case, a challenge is made to the due performance of a condition essential to the validity of an administrative act on which the offence depends, there is a reluctance on the part of the courts to apply the presumption of regularity. In my opinion, if the presumption is indeed to be applied in these circumstances, it would readily be rebutted by evidence that raises a doubt as to whether the condition has been duly performed. A court would not take a stringent view as to the weight of evidence required. In particular, in my view, the "evidence to the contrary" that will preclude the application of the presumption of regularity under s43(3) of the Interpretation Act in criminal proceedings, will be evidence sufficient to raise a doubt as to the validity of the "conditions and preliminary steps precedent" subject to challenge.

In the present case the validity of the notice was the subject of a direct challenge before the Magistrate. The notice itself called the validity of the notice into question. Having regard to the particular circumstances, it seems to me that s43(3) of the Interpretation Act was not of application as there was "evidence to the contrary" that the notice was invalid.

In the course of argument, the parties tended to deal with the application of the presumption of regularity and the onus of proof as if they were two separate concepts. In my view, however, they are inter-related. In criminal proceedings the onus of proof is always on the Crown. In certain circumstances the Crown may be assisted in discharging that onus by resort to the presumption of regularity. If the defendant tenders "evidence to the contrary" within the meaning of s43(3) the presumption will not apply and the Crown will have to resort to other means to discharge the onus of proof. Thus, in dealing with this issue, I have referred to authorities that deal not only with the application of the presumption of regularity but to the authorities dealing with the onus of proof in cases involving criminal charges based on subsidiary legislation, as well.

In this regard I should refer to a remark made by Lord Irvine in Boddington v British Transport Police [1998] UKHL 13; [1998] 2 WLR 639 at 647-647, on which Mr Mitchell relied. This case concerned a criminal charge, brought in a magistrate's court, based on a by-law prohibiting the smoking of cigarettes in railway carriages. The issue before the House of Lords was whether a defendant might raise as a defence to such a charge a contention that a by-law or an administrative decision made pursuant to powers conferred by it was ultra vires. This is indeed the next issue which I am required to consider in these reasons. In the course of his speech Lord Irvine said at 646-647:

"Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid."

Mr Mitchell relied on the statement that the burden of proof was on "the defendant to establish on the balance of probabilities that the subordinate legislation of the administrative act is invalid". In my view, in the context of his Lordship's reasons as a whole, his Honour was referring only to the burden of proof on a defendant who takes proceedings for judicial review in an attempt to set aside subordinate legislation or an administrative act on the grounds that such legislation or act is invalid. His Lordship was not referring to the burden of proof on a defendant when defending criminal proceedings based on the subordinate legislation or administrative act in question. In the latter instance, the burden of proof is on the Crown.

As the presumption was rebutted, the complainant failed to discharge the onus of proving the validity of the notice. Accordingly, I would uphold Ms Selby's appeal, set aside the order made by Parker J, and restore the order of the learned magistrate upholding the no case submission.

I turn now to the appeal of the complainant concerning the question whether Ms Selby was entitled to challenge the validity of the notice in the proceedings before the learned Magistrate.

"It should be remembered that in a prosecution founded upon subordinate legislation, the magistrate is not called upon to declare for the world at large the validity of the legislation which founds the prosecution. The relevant issue which must be considered is whether it has been established to the required standard that there has been a breach of the law as alleged in the complaint. In the case of a prosecution founded on subordinate legislation or a statutory instrument, this involves proof of the existence of the legislation or instrument; that necessarily involves proof of its validity. This process of proof will normally be assisted or achieved by statutory or other presumptions, but nevertheless the underlying requirement is for proof. It is for the magistrate to determine whether that has been proved; that determination does not involve a declaration of validity or invalidity. It appears to me that this is within the jurisdiction conferred on stipendiary magistrates by ss15, 20, 29 and 33(1) of the Justices Act 1902."

The main argument of the complainant was based on Ousley v R [1997] HCA 49; (1997) 148 ALR 510. The appellant in that case was convicted of trafficking in drugs. The evidence against him was obtained largely from the use of listening devices operated in accordance with two warrants issued by the Supreme Court of Victoria. The appellant claimed that the warrants were invalid. The trial Judge held that he did not have jurisdiction to determine a collateral attack on the warrants. Mr Mitchell referred to remarks made by Gummow J at 555 to the effect that:

"... the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where 'acts are of an official nature ... everything is presumed to be rightly and duly performed until the contrary is shown'."

Observations to similar effect were made by Gaudron J at 520-521. Toohey J at 514-515 pointed out that collateral review of a warrant was available when the argument "looks to a warrant on its face". His Honour noted at 515:

"However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements."

Mr Mitchell drew two propositions from the aforegoing. Firstly, he submitted that, as the validity of an administrative act is presumed to be valid until the act is set aside in appropriate proceedings, that act cannot be the subject of collateral attack in a court of petty sessions. Secondly, he submitted that the principles applicable to warrants of the kind dealt with in R v Ousley govern all administrative acts: therefore, while administrative acts that are patently invalid might be the subject of collateral challenge, acts of latent invalidity (i.e. where evidence is required to prove that the acts are invalid) are not susceptible to collateral challenge.

There is a fundamental inconsistency between the two propositions. Once it is conceded that administrative acts that are patently invalid can be the subject of collateral challenge, it has to be accepted that the presumption of validity, on which Mr Mitchell relied for his first proposition, does not have the effect contended for. Indeed, the true position is that stated by Lord Irvine in Boddington v British Transport Police at 646-647 to which reference has been made above. I shall repeat it for the sake of convenience:

"[T]he true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all."

I should say that Lord Steyn at 664 expressed similar views, namely:

"There is no rule that lends validity to invalid acts. In a practical world, however, a court will usually assume that subordinate legislation, and administrative acts, are valid unless it is persuaded otherwise."

It is of interest to compare the above dicta with the law in this State as enunciated by Malcolm CJ in Re Fiver Pty Ltd; Ex parte The Cabaret Owners Association of Western Australia Inc, unreported; FCt SCt of WA; Library No 8001; 21 December 1989. The learned Chief Justice said:

"In each case unless and until the grant of the cabaret licence was quashed the grant would have the benefit of the presumption of validity: Hoffman-La Roche v Secretary of State for Trade and Industry [1975] AC 205 at p366 per Lord Diplock; and see Wade, Administrative Law (5th Ed) at pp305, 313-314. This is so even if the grant may be regarded as a nullity as being beyond power. In Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736 at p769 Lord Radcliffe said:-

'An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'

'This must be equally true even where the "brand of invalidity" is plainly visible.'

Lord Radcliffe's proposition was restated in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at p125 per Lord Morris; in Calvin v Carr [1979] UKPC 1; [1980] AC 574 at pp589-590 per Lord Wilberforce; and in London and Clydeside Estates v Aberdeen DC [1979] UKHL 7; [1980] 1 WLR 182 at p189 per Lord Hailsham."

In my view there is no difference between the principles enunciated in Boddington v British Transport Police and in Re Fiver Pty Ltd; Ex parte The Cabaret Owners Association of Western Australia Inc. Nothing in the principles so expressed precludes a collateral challenge to subordinate legislation. This is made abundantly clear in Boddington v British Transport Police. It has long been the law in this State: Obea Pty Ltd v Savell, unreported; SCt of WA; Library No 6814; 21 July 1987 per Burt CJ; see also Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 at 560. There are sound reasons of policy for this. They are expressed in the speeches of Lord Irvine and Lord Steyn in Boddington v British Transport Police. I would merely note in particular the following remarks of Lord Steyn at 663-664:

"That decision [Bugg v Director of Public Prosecutions [1993] QB 473] contemplates that, despite the invalidity of a by-law and the fact that consistently with Reg v Wicks [1997] UKHL 21; [1998] AC 92 such invalidity may in a given case afford a defence to a charge, a magistrate court may not rule on the defence. Instead the magistrates may convict a defendant under the by-law and punish him. That is an unacceptable consequence in a democracy based on the rule of law. ...

... I have to say the consequences of Bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law. ...

There is no good reason why a defendant in a criminal case should be precluded from arguing that a by-law in invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg v Wicks [1997] UKHL 21; [1998] AC 92. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural validity of a by-law is raised, the trial court must rule on it."

I turn now to Mr Mitchell's second proposition, namely that it is not open in a court of petty sessions to make a challenge to an administrative act that is not invalid on its face. In Ousley v R it was held that the act of a judge in issuing a warrant for the use of a listening device is an administrative, not a judicial, act. Nevertheless, while there was no bar to collateral review by the trial Judge of the validity of the warrants on their face, no collateral challenge could be made to the warrants on grounds that involved the adjudication of the sufficiency of the warrant, "or whether the issuing authority was in fact satisfied as to any statutory requirements". Mr Mitchell submitted that these principles were applicable to all administrative acts, not only those relating to warrants.

The submission ignores the fact that there are special rules relating to collateral attacks on warrants. These rules were explained in McArthur v Williams (1936) 55 CLR 324 by Dixon, Evatt and McTiernan JJ at 365-366:

"Since 11 & 12 Vict c.42 and 11 & 12 Vict c.43 an information or complaint substantiated on oath has been the necessary foundation of a magistrate's authority to issue a warrant. But it has never been considered that the validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity. It is easy to understand that the existence of a written information sworn to or supported on oath might be conditions precedent to an authority to issue a warrant of apprehension. But when these conditions are satisfied, the magistrate has materials upon which he must form his judgment. In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend."

In Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 105 Mason CJ and Toohey J said at 105:

"The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant. There was no challenge to the jurisdiction of the Supreme Court to grant a warrant; counsel sought to challenge the sufficiency of the grounds on which the warrant had been granted. This attack on the warrant was misconceived. The admissibility of the evidence of Miss X depended on the existence of the warrant, not on the sufficiency of the grounds for granting it."

The limited nature of the inquiry that can be made into the validity of warrants was elucidated by Gaudron J in Ousley v R at 520-521:

"Once it is accepted, as it must be, that, even though issued by the Supreme Court, a warrant under s4A(1) of the Act is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard. It is to be remembered, however, that inquiry as to the validity of a warrant is a limited inquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the materials supporting the application for its issue. See Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 106."

Thus, her Honour emphasised that, generally speaking, the validity of an instrument made in the discharge of an administrative function "may be challenged in collateral proceedings, no matter the court in which those proceedings are heard". However, special rules apply to challenges to the validity of certain warrants. Such a warrant can only be challenged in collateral proceedings by reason of invalidity appearing on its face. However, the limitations on collateral challenges to such warrants have no application to the principles applicable to collateral challenges to other forms of administrative acts.

Finally, Mr Mitchell sought to rely on the remarks made by Dixon J in Posner v Collector for Interstate Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461 at 483, namely:

"When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity. Modern legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attacked collaterally or ignored as ineffectual, if the directions of the statute have not been pursued with exactness."

Mr Mitchell submitted that these remarks were applicable not only to orders made by magistrates or other inferior judicial tribunals, but to all administrative acts, generally. He advanced no authority for this proposition and it cannot be accepted. There is a fundamental difference between judicial orders (which are generally subject to appeal) and administrative acts: see Posner v Collector for Interstate Destitute Persons (Vict) at 476 (per Starke J).

Accordingly, in my view, the complainant's appeal should be dismissed.

As regards the question of costs, I agree with the reasons for judgment to be published by Wallwork J and the order proposed by his Honour.

The background to this matter has been set out in the reasons for judgment of Ipp J and I will not refer to it except as is necessary.

It is apparent from the relevant notice dated 16 February 1995 that "the Land" is the land defined in the Schedule to the notice which is "All of the land shown bordered green on CALM registered plans 1770 and 1774 titled 'Temporary Control Areas' ... but excluding all gazetted public roads." That land comprised "parts of State forest No 59" and was State forest vested in the Lands and Forest Commission ("the Commission") - cl 1 of the notice.

It is stated in the notice that road activities had commenced or were about to commence on the Land and that those road activities posed a danger to the safety of any member of the public who might enter onto the Land - cls 3 and 4 of the notice.

"The Commission has recommended to me that, in the interests of public safety, part of the Land be classified as a temporary control area."

"Now, pursuant to section 62(1)(d) of the Conservation and Land Management Act 1984, I hereby classify the Land referred to in the Schedule to this Notice as a temporary control area."

It is clear from the notice that the Commission had recommended that part of "the Land" be classified as a temporary control area and that the Minister had classified the whole of "the Land" as a temporary control area.

Section 62 of the Conservation and Land Management Act 1984 (WA) provides:

"(1) Subject to this section, the Minister may, on the recommendation of a controlling body ... by notice published in the Gazette classify the whole or any part of land that is vested in that controlling body as -

The controlling body in this case had recommended that in the interests of public safety part of "the Land" be classified as a temporary control area. The Minister classified the whole of "the Land" in question as a temporary control area.

The evidence did not indicate what the difference between the two areas of land was but it could have been a big difference.

The notice on its face departed from the recommendation of the controlling body which grounded the right of the Minister to:

"... classify the whole or any part of land ... that is vested in that controlling body as -

The learned Judge from whom this appeal is brought was of the view that:

"... it is, in the last resort, a question of fact and degree, where the Minister departs from or varies in some way the recommendation of the controlling body in classifying land or waters, whether that departure or variation is of such extent or significance that the classification can no longer be seen to be 'on the recommendation of' the controlling body."

In this case, there was no way in which the learned Magistrate could know what the extent of the departure or variation was, as the prosecution was not prepared to call evidence as to that question. However, on its face, the notice did not comply with the recommendation.

"The most that can be said is that the recital and terms of the notice of the Minister pursuant to section 62(1) may give rise to a question whether the nature and extent to which the Minister has exceeded the recommendation in respect of the area of land is such that the classification made by the notice may no longer properly be seen to be made on the recommendation of the controlling body for the purposes of section 62(1)(d)."

In Egarr v Registrar of Board of Optical Registration [1952] SASR 163 Napier CJ had to consider a provision which empowered the Governor to make regulations "on the recommendation of the Board." The Board had recommended regulations. Napier CJ said:

"I think the intention of the statute is that the Executive is to act at the instigation of the Board, who are to suggest the subject matter upon which a regulation is required, and as it may be, to indicate the lines that it should take ... In the last resort I think that it may be a question of fact and degree whether the regulation is being made 'on the recommendation of the Board'."

In Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide [1975] 11 SASR 504 Wells J was called upon to consider the validity of regulations made pursuant to s36 of the Planning and Development Act 1966-1972 (SA) which Act provided that the Governor might make regulations "on the recommendation of the Council and on receiving a certificate from the Minister to whom the administration of the Act had been committed, that in his opinion such of the provisions of section 38 of that Act as were applicable had been complied with." Wells J concluded that the regulations were invalid because the alterations made to the draft regulations submitted by the Council were such that the regulations were not recommended by the Council within the meaning of s36.

Wells J distinguished the situation in Egarr supra and said at 545:

"But it is to be observed that the Opticians Act (in Egarr) had nothing to say about the machinery for making the proposed regulations; it tabulated the several subject matters upon which it authorised regulations to be made and then merely followed the time honoured formula of authorising the Governor to make regulations on those subjects on the recommendation of the Board." (my words in brackets).

"I have no hesitation in drawing, both from principle and from the passage cited above, the inference that the bounds or compass within which fact and degree will determine whether a regulation has been made on the recommendation of the relevant authority or not, are fixed by reference not only to the meaning of the word 'recommendation' in its immediate context, but also to the statute as a whole insofar as, expressly or by implication, it signifies an intention as to how far the regulations made are expected or permitted to depart from the very words of the recommended draft."

In his argument in this case for the invalidity of the notice, Ms Selby's counsel referred to Murphy v Matlock [1926] VicLawRp 22; (1926) VLR 170 which was concerned with the exercise of a power to make regulations on the recommendation of the Pharmacy Board. At page 174 of his reasons in that decision, Mann J said:

"It is quite true that if this regulation, as appearing in the Gazette, on its face appeared to be all in order and to be a well made regulation, the maxim in question (omnia praesumuntur rite esse acta) would relieve the prosecution from proving anything more, and all presumptions would be made which would be consistent with what appeared in the regulation itself. But on the face of this regulation it appears to be made without authority. The Governor in Council, without the preliminary step to be taken by the Pharmacy Board, has no more power to create offences, or to repeal previously existing regulations, than any other body, and when there are matters essential to the exercise of the power such as I have to deal with, I think they must be proved. What I have said is not to be taken as indicating that this power has not been properly exercised. All I am deciding is that the due exercise of the power has not been proved, as it is necessary for the prosecution to prove it in order to found its case."

Counsel for Ms Selby also relied on the words of Gowans J in Bolton v Dance [1968] VicRp 83; [1968] VR 631 where his Honour, having discussed Murphy v Matlock supra; Lucerne v Collins (1967) 1 NSWR 407; Foster v Aloni [1951] VicLawRp 69; [1951] VLR 481; Walter v Parry [1952] VicLawRp 4; [1952] VLR 19; and MacGregor v Australian Mortgage Land & Finance Co (1898) 15 Weekly Notes NSW 128 said:

"These cases, in my opinion, show no more than that the presumption of regularity will not be applied to the making of regulations, proclamations or ordinances if there is an apparent defect on the face of them. The absence of a statement that a preliminary step in the making of the instrument has in fact preceded its making may present the appearance of such a defect if by reason of the surrounding circumstances the absence of the statement appears significant. But there is no rule that there must always appear a statement specifying the preliminary steps that have been taken or that all preliminary steps have been taken."

In my view the learned Magistrate's comment in this case that pursuant to s62 of the Act, the word "recommendation" was the trigger to the Minister publishing the relevant notice in the Gazette is correct. It is apparent, however, that the trigger related to only part of the land and not to the whole of the land as classified by the notice.

If there had only been small differences in the two areas of land, evidence could have been produced of that before the learned Magistrate, if the prosecution had chosen to do so.

It was suggested at the hearing of this appeal that when the question of the defect in the notice was raised at the hearing, the prosecution should have applied for leave to adduce evidence to clear up the doubt raised on the face of the notice. I agree with that proposition.

Ms Selby's counsel referred to reg86 of the Forest Management Regulations which provides that a person shall not, without authorisation of the Executive Director, enter any area of State forest that is classified under s62 of the Act. The regulation provides for a punishable offence.

Counsel relied on the decision L S v Director General of FACS (1998) 18 NSWLR 481 which concerned a Ministerial order that a State ward was to be dealt with as a handicapped person and the preconditions to the making of such an order. Having referred to Bolton v Dance at 641-642, Lucerne v Collins (1966) 86 Weekly Notes Part 1 NSW 247 and also Pearce on Delegated Legislation Australian and New Zealand 1977 at 269, Young J at 486 of the report of that decision, said:

"In my view, with an order that restricts the freedom of the subject, if and only if certain preconditions are fulfilled, the absence of any statement on the fulfilment of the preconditions in the order is significant. In my view the order is not valid unless these are stated in the order itself."

Ousley v R [1997] HCA 49; (1997) 148 ALR 510 was concerned with the subject of listening devices under the Victorian Listening Devices Act 1969. It was also concerned with the rights of citizens. When referring to Tran Nominees Pty Ltd v Scheffler [1986] 42 SASR 361 Toohey J at 516 said:

"In the Full Court Cox J with whom O'Loughlin J agreed said at 392-3:

'It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity ... It is a very different thing to state even unnecessarily the jurisdictional grounds and then to get them wrong ... It is really a question of what conclusion, if any, one is disposed to draw from an inappropriately expressed recital."

"If a warrant discloses that an essential or jurisdictional precondition was not satisfied, as was the case in Tran Nominees Pty Ltd v Scheffler (supra), it is clearly invalid. A recital which misstates an essential precondition may be taken to indicate that that condition was not satisfied, whether or not it is necessary for the warrant to recite the matters upon which its validity depends."

"... there is no means of ensuring that those courts have complied with the requirements of s4A(1)(a) and (b), unless it happens that a warrant purports so to state and, in the process, so misstates one or both of those matters so as to give rise to the inference that the Act's requirements were not in fact satisfied."

In the same decision at 531 McHugh J quoted Merkel J in Carmody v MacKellar (1996) 68 FCR 265, which was a case concerned with the issue of warrants pursuant to the Customs Act and the Telecommunications Interception Act 1979 (Cwlth) where his Honour quoted the statement made by the High Court in Love (1990) 169 CLR 307 at 322-3:

"Once it is accepted that the warrant is not a judicial order it becomes an instrument made pursuant to a circumscribed statutory authority."

'It must be open to a trial court in which the issue of validity ... arises, to hear and determine that issue ... The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error'."

McHugh also referred at 531 to the decision in Coco v R [1994] HCA 15; (1994) 179 CLR 427 and said that:

"The court found that the issue of the warrant amounted to jurisdictional error. It is implicit in the court's reasons that the judge who presided at the trial of Coco was entitled to determine whether the warrant was validly issued."

At 538-539, McHugh J discussed the decision in Tran Nominees v Scheffler (supra). Subsection (5) of s52 of the relevant Act provided that an officer of police, special magistrate or justice should not issue a warrant unless satisfied:

"(a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and

(b) that a warrant is reasonably required in the circumstances."

"In Tran the warrant recited only that a named police inspector had reasonable grounds for suspecting 'that there is equipment used in connection with a prohibited substance.' In a decision that was upheld by the Full Court of the Supreme Court of South Australia, Jacobs J held that the warrant recited a state of satisfaction 'which, if it has any meaning at all, is not a state of satisfaction required by the statute, and therefore the warrant is bad on its face, whatever the true state of satisfaction may have been'."

"Although during argument in this Court a proposition was advanced that separate legal proceedings might be taken to set aside a warrant signed by a Supreme Court Judge this was not the view adopted by this Court in Coco v R supra. It is implicit in the reasons and orders of this Court that the objections could be taken in the course of a trial or at least in an appeal against conviction where such conviction rested in whole or in part upon private conversations obtained otherwise than pursuant to a valid warrant under the Queensland equivalent of the Act."

"In respect of legal challenges based upon suggested defects appearing on the face of a warrant, the trial Judge appears competent to make the necessary ruling whatever place he holds in the judicial scheme of things. If that ruling is wrong there are procedures for correcting it. If it is right it saves fragmentation of the trial and may save time and costs. In either event it ensures observance of the rule of law throughout the conduct of the trial."

Kirby J at 575 quoted Cox J in the Tran case as saying:

"I do not accept ... that any deficiency in the wording of the recital is unimportant because this was an unessential part of the warrant. The law (it was said) does not require the issuing authority to state the object of his suspicion in that explicit way. Even if the premise be correct - and I say nothing about that - the conclusion is in my opinion unsound. It is one thing for a warrant to be silent about the basis for its issue leaving the reader to assume, perhaps, that all was done with due regularity. (But cf R v Tillet; ex parte Newton). It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong."

"However the essential flaw in the warrant appeared on its face without the need to draw inferences about the subjective considerations affecting the officer who signed it. The omission on the face of the warrant was sufficient to deprive it of validity - Crimes Act s568(1)."

"To adapt what Cox J said, it is one thing for warrants to be silent about the basis for their issue. It is a very different thing to state in a recital, even unnecessarily, jurisdictional grounds and then to get them wrong. That is what occurred in the present case. The recital was incomplete. Therefore on the face of the warrants it was inaccurate."

The reasons in Ousley are very supportive of the appellant's argument in this case. Although Ousley was concerned with listening devices, the reasoning is consistent with the strictness required where the criminal law affects the rights of citizens.

The words of the Court in Bugg v The DPP [1993] QB 473 are relevant to the present situation. At 495, it is said:

"In the case of substantive invalidity, it is a matter of law whether, for example, a bye-law is unreasonable in operation, or is outwith the authorising power. No evidence is required; the court can decide the issue by looking at the terms of the primary legislation and the subordinate legislation which is alleged to be invalid. The situation is different with procedural invalidity. Evidence will be required, for example, as to what happened during the course of the making of the bye-law in order to see whether or not it has been validly made. It has long been established that in criminal proceedings, and formerly in civil proceedings, a defendant can challenge the substantive invalidity of an instrument or order for the breach of which a prosecution or claim is brought."

At 497 the Court agreed that Justices can refuse to convict "in the case of a licensing authority's decision which is invalid on its face".

At 499 the Court said that in the case of substantive invalidity of bye-laws there is no need for evidence to establish such invalidity. In the case of a procedural irregularity, the evidence can be all important.

"Where the law is substantively invalid the position is different. No citizen is required to comply with a law which is bad on its face. If the citizen is satisfied that that is the situation, he is entitled to ignore the law."

"In the case of substantive invalidity, no issue as to the evidential burden of proof should arise on attack upon the validity of a bye-law. The prosecution has to produce the bye-law in evidence and when this has been done, the bye-law, together with the enabling legislation, will provide a defendant with all he needs."

Although some of the reasoning in Bugg was later criticised in Boddington v British Transport Police [1998] UKHL 13; (1998) 2 WLR 639 - see below - the above comments are still valid.

Section 43(1) of the Interpretation Act WA is relevant to this case. That subsection says:

"Subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency."

It was suggested for Mr Pennings that s43(3) of the Interpretation Act could supply the answer to the problem here. That subsection provides:

"(3) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed."

Section 62(1)(d) of the Act has the effect that the Minister may, on the recommendation of a controlling body, classify the whole or any part of land as a temporary control area. In this case, the Minister classified the whole of the land when only part of the land was recommended. The notice is inconsistent on its face with s62(1)(d) of the Act and there is therefore, in my opinion, evidence that "all conditions and preliminary steps precedent to the making of subsidiary legislation" have not been complied with and performed within the meaning of s43(3).

The above reasoning does not result in the notice necessarily being invalid. The result is that it was not proved before the learned Magistrate in this case that the notice was valid and therefore the appellant was rightly acquitted of the charge.

Counsel for Mr Pennings relied on the decision in Boddington v British Transport Police [1998] UKHL 13; (1998) 2 WLR 639.

In Boddington, Lord Irvine said that the decision in Bugg (supra) had been wrongly decided. At 650 his Lordship said:

"No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires Act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever."

Mr Pennings also appealed. His first contention was that the judicial review of a notice which is valid on its face stands outside the jurisdiction of a Court of Petty Sessions. Secondly, it was said that a notice which was valid on its face is taken to be effective until set aside. Once that was done it would be void and of no effect from its beginning. It was contended that the Court of Petty Sessions was not properly equipped to deal with judicial review for latent invalidity.

In my opinion, that proposition was put to rest by Boddington v British Transport Police (supra) at 639. I will not canvas the reasons which were discussed by Lord Steyn in the Boddington decision but I adopt them for the purposes of these reasons.

I add that many defendants do not have the know-how or the finance to mount a collateral challenge by way of prerogative writ or an action for a declaration in the Supreme Court. If persons are charged in Courts of Petty Sessions they should be allowed to defend in those Courts.

It was suggested for Mr Pennings that if defendants were allowed to raise procedural invalidity of subsidiary legislation in Courts of Petty Sessions, it could involve high placed Government Officials giving evidence on numerous occasions. There are two answers to that. Firstly, if there is a serious problem raised by the evidence, then the relevant Official should perhaps give the relevant evidence, or it could be agreed what his evidence would be. Secondly, it is only in a case where there is an obvious difficulty with a procedural matter that such evidence would be required. The presumption of regularity applies where there is no problem apparent either on the face of relevant documentation or with the evidence in the case. It would not be sufficient to displace the presumption of regularity to suggest that the documentation might not be in order. There would have to be some evidence of that, as there was in this case.

I agree with Ipp J that the complainant in this case failed to discharge the onus of proving the validity of the notice. I also would uphold Ms Selby's appeal, set aside the order made by his Honour and restore the order of the learned Magistrate upholding the no case submission.

Ms Selby, appeals against the decision of the learned Judge that Mr Pennings have the costs to be paid on taxation and asks that the costs order made by the learned Magistrate should stand and that Mr Pennings should pay the costs of the appeal before the Judge and of this appeal.

In his reasons for judgment, the learned Judge held that the complaint should not have been dismissed nor costs awarded to Ms Selby. His Honour set aside the learned Magistrate's orders concerning costs. His Honour said that as the question of costs would arise again in the course of the continued hearing, it was appropriate, and he would think sufficient for him to indicate some surprise that in a summary proceeding, as protracted as the one in question, it should be thought fair and reasonable to award costs calculated by reference to an hourly rate and to do so for both hearing and preparation and further, without a clear demonstration that the amount so calculated would not exceed the amount Ms Selby had actually and reasonably incurred for costs.

At the hearing of this appeal, counsel for Mr Pennings said that if the Ms Selby was successful with her appeal, it would not automatically follow that orders should be made restating the Magistrate's costs order. It was said that in Washbourne v SEC [1992] WAR 188, Ipp J had said that a global approach was inappropriate. That such an approach failed to recognise the scale made under the Official Prosecutions (Defendants' Costs) Act as at least reflecting a guide. It was submitted for Mr Pennings that the learned Magistrate had erred in making an award without any evidence as to what time was actually spent, or what costs were actually incurred and that the quantification of costs should go back to the Magistrate.

In answer to the proposition that there had been a global award of costs by the Magistrate, counsel for Ms Selby said that the Magistrate had actually used a time basis to award the costs. Counsel for Ms Selby said that he was not ready to argue the question of costs before this Court as it had not been raised on the notice of appeal. The Court gave Mr Pennings seven days to file written submissions and Ms Selby seven days thereafter to file submissions. Those submissions have since been filed and I take them into account in these reasons.

When the question of the costs came before the learned Magistrate, it was submitted to him by counsel for Ms Selby that the matter had not been a typical matter in Petty Sessions. It was said that the relevant charges had involved complex questions of law and that if it had been fully fought, Ms Selby's case would possibly have gone for another three days. It was submitted that a lot of research had gone into the matter. Also, that it was not typical to have two Crown counsel present a matter in Petty Sessions as had happened in this case.

The learned Magistrate said that he accepted that the case was complex because it had involved a diverse range of issues. He said effectively that there had been five or six separate submissions made and that had been merely on the basis of the prosecution case without the defence case having been presented.

Counsel for Ms Selby told the learned Magistrate that he had spent a whole day at the Department of Lands researching maps in preparation for the defence. Further, there had been hours and hours over a period of a month spent in the Supreme Court Library. There had been a trip to Walpole to take a proof from Ms Selby. There had also been considerable research put into decisions which had not been presented to the court on the no case submission. If the matter had not been dismissed at that stage, the matter would have quite likely gone for another three days. Counsel said he had had accommodation expenses for five nights in Albany and the expense of two trips from Perth and back and various incidentals. Additionally, there was probably $100 worth of photocopying. Counsel suggested that a figure of $100 a night was reasonable for accommodation expenses and $250 for travel for each visit to and from Albany. He said he did not know whether the trip to Walpole was claimable or not.

The learned Magistrate said he thought that the journey to Walpole was part of the getting up and that it was something that he would simply allow for in the totality of the order. He said he must make an allowance for any witness who might have been available to give evidence. Counsel replied that there was one person who had come down especially to give evidence and another man who had attended to give evidence. None of the other witnesses had had to take time from their normal occupation.

Counsel suggested that the figure of $1,800 a day should be taken as a guide and then multiplied by four. To that, he said, should be added an allowance for preparation. It was said that half of the preparation was actually preparing the defences.

The learned Magistrate was referred by counsel for Mr Pennings to the decision of Klahn v Talbot (1995) 83 A Crim R 535. The submission was made that regard should be had to the scale under the Official Prosecutions (Defendants' Costs) Act, although that scale had been declared invalid in Klahn v Talbot (supra). Counsel said that she was not suggesting that this was a case where the maximum ought not to be allowed. It was accepted that it was a complex case. However, it was submitted that the sum of $1,800 per day was extravagant and was over double the maximum under the scale. It was said that under the scale the fee for the first day of trial was $710, including preparation and counsel fee. A second or subsequent day of trial was allowed for $470. It was submitted that there should be four days in court properly allowed. It was also submitted that the appellant's solicitor was entitled to his travelling and accommodation expenses, although the scale did provide that they must be actual financial loss rather than what would be reasonable in the circumstances. It was submitted that if in fact Ms Selby's solicitor had not incurred accommodation at $100 a night, it would be unreasonable to award that amount. Also in relation to travelling, once again it was the financial loss actually incurred which was relevant. It was submitted that it was in the learned Magistrate's hands as to whether to allow an extra amount for preparation for getting up. Further, that under the scale there were allowances made for witness fees and travelling and accommodation.

There had originally been a second charge against Ms Selby but that had been withdrawn. It was submitted for the prosecution that because that charge simply related to the second time Ms Selby had been observed within the temporary control area, there had therefore been very little, if any, additional work which would have been involved concerning that matter. The learned Magistrate said he thought the two matters could be treated globally.

The learned Magistrate observed that from the authorities it seemed to him that what he had to do was to award reasonable costs. He said that he did not think that the former scale under the Official Prosecutions (Defendants' Costs) Act was a guide which was appropriate to the particular matter because the matter had been a lot more complex than the normal run of Petty Sessions' trials. In any event, that scale clearly set an upper limit. Without the scale there was no upper limit. He said he did not believe he should use the scale's maximum as a guide in the circumstances where clearly, reasonable costs would exceed that maximum. His Worship said that the other scales available to him were the Local Court scale, which was not particularly appropriate to the circumstances, and the Legal Aid Commission scale, which once again was a scale which effectively set a ceiling which, in his view, was not appropriate. He said that perhaps the only other scale he could look at was what was called improperly, the conveyancing scale. He had been informed that the maximum under that scale per hour was $250. He said that in the circumstances the complexity of the matter was such that he should allow something reasonably substantial as a reasonable fee. He intended to allocate the figure of $200 an hour to the time spent. He said that the case had occupied four days. He would allow on average five hours a day. That amounted to $4,000.

His Worship said that it was obvious that a considerable amount of research had been done and in his view appropriately done. The defence had been thoroughly prepared and ready for eventualities. He said he believed he should allow, in relation to the getting up, twice the amount allowed for the matter in Court. That made a total of $12,000. That figure should include all extraneous expenses, including transport, accommodation, witness transport and accommodation.

In Washbourne v SEC supra at 193, Ipp J said:

"Item 11 covers 'other' expenses; that is to say, expenses that do not fall within items 1-10. Item 1, for example, provides for the costs allowable for counsel's fee for the first day of trial and also for the costs for the preparation of the case for the trial. In the circumstances no amount could be allowed under item 11 for counsel's first day fee and for preparation of the case for trial. As the scale provides, in regard to item 1(and item 2), that no allowance should be made for second counsel or solicitor attending trial, there would be no power to allow the costs of second counsel or the solicitor (for the matters covered by item 1) under item 11. Furthermore, although under s5(5) the Court may award an amount in excess of the maximum allowable amount for any items in the scale, the maximum laid down in the scale is a guide or signpost to the amount eventually allowed. Thus, it was material to know whether an amount was to be allowed under item 1, where the maximum allowance was fixed at $626, or under item 11 where no maximum amount was stipulated."

"Accordingly I consider that a Magistrate, in awarding costs under s5(5), should not merely 'make a general discretionary award reflecting what is reasonable and proper in all the circumstances.' The starting point is that the amount of the costs are to be in accordance with the scale prescribed. If, however, the special difficulty, complexity, or importance of the case leads the court to order higher costs than those laid down in the scale, the court is empowered to order costs in excess of the amount for scale items; nevertheless, the scale items are to be the basic guidelines in determining the amount of costs to be ordered. The amounts reflected in the scale are substantially lower than the costs set out in the Supreme Court Costs Scale. Plainly, the intention of the Legislature is that the costs awarded under the Official Prosecutions (Defendants' Costs) Act are to be lower, generally, than the costs awarded in a Supreme Court action. The court, in ordering costs under s5(5) therefore does not have a discretion limited only by considerations of reasonableness. Even if costs are ordered in excess of the scale, regard must be had to the scale as a guideline."

Ipp J said that item 1 of the scale covers both the preparation of the case for trial and counsel's fee for the first day. It expressly provides that no allowance should be made for second counsel or the solicitor attending the trial. He said the scale makes no provision for "getting up" fees and that it is important that the distinction between the fee for getting up and that for the preparation involved for the first day be borne in mind.

His Honour said that the fee for the first day of the trial is remuneration for a preparation extending up to at least a substantial part of the day and night before the hearing as well as for the time spent in court before the first refresher commences. It includes a good deal of time spent on reading facts or in preparation for trial. On the other hand, "getting up" involves preparation not included under the fee on brief. His Honour said it was significant that item 1 under the scale includes "preparation of case for trial" whereas item 11 covers "all other expenses ... reasonably and properly incurred in the preparation of the case." His Honour said that a distinction is made between "preparation of case for trial" and "preparation of the case". His Honour said that in his view the former covered preparation which is part of the fee on brief whereas the latter includes getting up.

Ipp J said in Washbourne that, having regard to the preparation involved, the complexity and the importance of the matter and the fact that the maximum sum allowable for a fee on brief under item 1 was $626, he considered that an amount of $1,500 should be allowed for item 1. His Honour said he had borne in mind that at the relevant time the maximum allowable sum for counsel's fee on trial under the Supreme Court Scale was $3,265.18.

In Klahn v Talbot supra at 547, Franklyn J, after referring to the provisions of the Official Prosecutions (Defendants' Costs) Act, said that on appeal, a successful defendant is entitled to an order for his costs as defined in the Act and that the appeal court "shall make an order as to the amount of his costs". His Honour said:

"It is clear in my view from the wording of s5(3) and s5(4) of the Act that the amount to be so ordered is in the discretion of the Court, subject to any other provision of the Act affecting that discretion. Prior to the repeal of s10, s5(5) required the discretion to be exercised so that, save in special cases there provided for, the amount of costs ordered should be in accordance with the scale."

Franklyn J said that the scale also provided for allowances to witnesses which were required to be assessed on actual loss up to the maximum and in some cases for an assessment to be made of the actual financial loss and for payment of travelling and accommodation and other expenses "reasonably and properly included." The requirement to "assess" allowances to witnesses and to consider whether other expenses were reasonably and properly incurred required the exercise of discretion.

"The repeal of s10 in my opinion does not, in any way, affect a relevant defendant's entitlement to his costs nor the obligation of the Court to make an order as to the amount of his costs. Its effect is to remove the fetter as to amount imposed on the exercise of discretion by the 'scale prescribed under the Act' when in operation."

"In my opinion, as the scale promulgated in the Gazette of 27 March 1991 has, as a matter of practice, been accepted and acted upon by both complainants and defendants, summary courts dealing with official prosecutions, appeal courts on appeal from such summary courts and by the profession generally, as appropriately indicating the limits within which the discretion to order costs should be exercised, it is appropriate that regard continue to be had to it for that purpose whilst recognising that it cannot bind the court in the exercise of its discretion. That discretion can only be exercised of course in respect of expenses which are 'costs' within the definition in s4 of the Act and so properly incurred expenses in an official prosecution due and payable or paid by the defendant to another person or as court fees."

Having regard to the reasons of Ipp J in Washbourne (supra) and to the reasons of Franklyn J in Klahn (supra), it is my opinion that regard should still be had to the differences in quantum between the scale items under the Official Prosecutions (Defendants' Costs) Act and the rates which prevailed under the then scale of fees in the Supreme Court, whilst recognising that that "cannot bind the Court in the exercise of its discretion". The difference between the amounts in the Supreme Court scale in 1991 and today should also be regarded. The observations of Ipp J in Washbourne are then applicable.

In Washbourne, Ipp J allowed the costs of the transcript plus photocopying charges for the authorities, proofs of evidence and transcript. His Honour also allowed charges for facsimile, courier, taxi and printing costs. He allowed for those items under item 11.

In Gill v King, unreported; FCt SCt of WA; Library No 970654; 17 November 1997 the Court made an order referring the amount of costs to a Registrar of the Court for inquiry and report pursuant to O65A r13(2) of the Rules of the Supreme Court 1971. A report was later received from the Registrar. The Chief Justice said:

"The report indicates that the Registrar has made inquiry of the appellant both by written request and by seeing him in Chambers. The Registrar has heard submissions in relation to the expenses."

The Court accepted the certificate from the Registrar and the recommendation contained in his report.

In my view, as in this case the Court does not know the details concerning the various expenses which were incurred in connection with the preparation and conduct of this case, including the various accommodation and travelling expenses, we should adopt the same course as was followed in the Gill decision and fix the costs after a report has been received.

I have seen the reasons for decision that Ipp J intends to publish. I agree with his Honour's reasons. There is very little that I can add. However, because these appeals raise some important issues of principle for the administration of justice, I should state very briefly my own views on them. In these remarks I will refer to the first appellant, second respondent as "the defendant" and to the second appellant, first respondent as "the complainant".

To be valid, a classification by the Minister of land as a temporary control area under s62 of the Conservation and Land Management Act 1984 ("the Act") must be made "on the recommendation of a controlling body". However, I do not accept that the classification must "mirror" the recommendation, as was submitted by counsel for the defendant. It is clear from the plain wording of the section, construed in accordance with the scope and purpose of the Act as a whole, that Parliament has conferred a discretion on the Minister. It is a discretion that must be exercised in accordance with the Act. However, it would strain the language, and be contrary to the apparent scheme of the legislation, to say that the Minister was obliged to act strictly and absolutely in accordance with the recommendation.

I agree with the opinion expressed by the learned Judge at first instance when he said that it was a question of fact and degree. Where the Minister departs from the recommendation the issue is whether the departure is of such extent or significance that the classification can no longer be seen to be "on the recommendation of a controlling body". This will vary from case to case and it must be seen in the light of the Minister's power and obligation to exercise a discretion.

The Notice issued by the Minister contains a definition of "Land" (with a capital "L"), namely, "parts of State Forrest No 59 and referred to in the Schedule hereto". The Schedule contains this information:

"All of the land shown bordered green on CALM registered Plans 1770 and 1774 titled 'Temporary Control Areas', --- but excluding all gazetted roads."

Paragraph 5 of the Notice states: "The Commission has recommended to me that, in the interests of public safety, part of the Land be classified as a temporary control area". The words that I have emphasised assume importance when the substantive portion of the Notice is considered:

"Now, pursuant to section 62(1)(d) of [the Act], I herby classify the Land referred to in the Schedule to this Notice as a temporary control area."[emphasis added]

The problem becomes immediately apparent. Ordinary principles of construction compel the conclusion that the Commission recommended that part only of the Land (with a capital "L") be classified and that the Minister classified the whole of the Land (with a capital "L"). In other words, either the Notice is poorly and inelegantly worded or the Minister departed from the Commission's recommendation. There is nothing that would justify the former conclusion so it must be the latter. This brings into play the question of fact and degree to which I have already referred. The difference between the area of land in the Notice from that in the recommendation might have been minor and inconsequential or it might have been major and significant. No evidence was led before the learned Magistrate or the Judge at first instance or this Court as to the extent or area of land encompassed within the recommendation of the Lands and Forest Commission or of the degree of departure consequent on the form of the Notice.

I am not saying that the Notice was invalid on its face. However, the Notice was in evidence before the Magistrate and what was apparent on its face is the potential for such a problem to arise.

The next issue is whether, and to what extent, the problem could be overcome by resort to the presumption of validity. In this respect I wish to associate myself particularly with the careful analysis contained in the reasons of Ipp J. Like Ipp J, I think it is an open question (and one that it is not necessary to decide in this case) whether the presumption (either at common law or under the statute) applies at all in a criminal case. Clearly, the fact that it arises in the context of a criminal prosecution will be one of the factors to be taken into account in determining its applicability. The law still views the consequences of a criminal conviction (whether or not it involves the liberty of the subject in the sense of potential incarceration) as a matter of grave significance.

I also think the presumption does not shift the burden of proof. In the absence of a clear statutory statement to the contrary the burden of proof in a criminal case remains on the Crown. The phrase in s43(3) "in the absence of evidence to the contrary" does not mean that the defendant bears the burden of establishing the invalidity of the subsidiary legislation. Phrases such as "evidentiary onus" tend to cause as many problems as they solve and there is much to be said for avoiding them. I think it is sufficient to say that the defendant must point to evidence that raises in the mind of the tribunal of fact a doubt (going beyond mere trivia or speculation) as to the validity of the impugned act. Once that has happened the focus of attention reverts to the Crown in accordance with standard principles of the criminal law.

In this case, as I have already said, the Notice itself was sufficient to raise such a doubt. It was not patently invalid on its face. But the question of fact and degree was readily apparent on the face of the Notice. There was nothing else in the evidence that went to establish the connection between the Notice and the recommendation on which it was based. Once this is appreciated, it seems to me that the Magistrate was correct in upholding the no case submission.

The next, and second to last, issue on which I wish to comment is the submission made by counsel for the complainant [based on ground 1(e) of the complainant's grounds of appeal] that the validity of subordinate legislation cannot be challenged collaterally in a prosecution before the Court of Petty Sessions. The practical effect of the submission is that where a defendant in a criminal prosecution that is to be dealt with summarily wishes to challenge the validity of subordinate legislation on which the charge is based he or she is left with two alternatives. First, the defendant could allow the prosecution to take its course and, if convicted, rely on the appellate court to take into account the issue of invalidity, being an issue that was not before the Magistrate. This raises its own problems and would not be attractive, especially if the penalties included a term of imprisonment (which I acknowledge is not this case). Secondly, the defendant could take out proceedings for declaratory relief or for a prerogative writ in this Court and seek a stay of the prosecution until the superior court proceedings had been completed.

In my opinion the reasoning of Lord Steyn in Boddington v British Transport Police [1998] UKHL 13; [1998] 2 WLR 639 at 664 (the text of which is set out in the reasons of Ipp J) is compelling and I respectfully adopt it. The common law has, over the centuries, developed numerous rules to avoid or discourage multiplicity of proceedings. This is a matter of high public policy. Similarly, the Courts are generally reluctant to stand in the way of the progress of criminal prosecutions. It is not usual (although not unheard of) for a civil court to grant a stay of a criminal prosecution to permit a matter to be heard in the civil jurisdiction. There is also the public interest in preserving for members of the community ready and affordable access to the Courts. Anything that increases costs and delay (and splitting the proceedings in the way suggested has that potential) has public policy ramifications.

It is true that challenges to the validity of subordinate legislation can raise complex issues which would justify the attention of a judge of a superior court. It is true also that challenges of this type will often have ramifications far beyond the interest of the immediate parties to the prosecution. On the other hand, in the modern age Magistrates are all legally qualified and are appointed on criteria that seeks to assess competence and suitability for the task that they are expected to perform. Part VIII of the Justices Act 1902 entitles both the prosecution and the defendant to appeal if dissatisfied with the decision of a Magistrate. Weighing up all of the competing public policy considerations I think there is good reason to follow the course adopted in Boddington (supra). I would reject the complainant's challenge on this issue.

Finally I turn to the question of costs. I have seen the reasons that Wallwork J intends to publish. I agree entirely with what Wallwork J has said on this issue and there is nothing that I can usefully add.