Grassby v The Queen

I agree also in his Honour's observations with respect to the need for Hunt J. to have disqualified himself from sitting as a member of the Court of Criminal Appeal.

I would grant special leave to appeal and dismiss the appeal.

Subject to one qualification, I am in general agreement with the judgment of Dawson J. The qualification relates not to a matter of general principle but to the effect of the statutory provisions directly involved in this case. My view on that narrow question of construction leads, however, to a different conclusion about the outcome of the appeal from that reached by Dawson J.

The particular statutory provisions are those of s. 41(6) of the Justices Act 1902 N.S.W. ("the Act"). That sub-section identifies the primary function of a magistrate in New South Wales at the conclusion of the hearing of evidence on committal proceedings in relation to an indictable offence. It provides:

When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices -

(a) if of the opinion that, having regard to all the evidence before the Justice or Justices, a jury would not be likely to convict the defendant of an indictable offence - forthwith order the defendant to be discharged as to the information then under inquiry; or

(b) if not of that opinion - commit the defendant for trial.

The question which s. 41(6) requires a magistrate to address relates to the likely outcome of a trial if a committal order were to be made. It is whether, having regard to "all the evidence" before the magistrate, he or she is "of the opinion that a jury would not be likely to convict the defendant of an indictable offence". The resolution of that question will necessarily involve, in many cases, an assessment of the likely rulings which would be made by a trial judge (if a committal order were made) about whether particular evidence is admissible or should be received. If, for example, a magistrate were of the view that the only incriminating evidence would clearly be excluded by the trial judge in the exercise of a judicial discretion, he or she would, in my view, necessarily be of the opinion that, having regard to all the evidence before him or her, a jury would not be likely to convict the defendant of an indictable offence. In that regard, it seems to me that the requirement that the magistrate have regard to "all the evidence before the Justice or Justices" does not require the magistrate to disregard the question whether some or all of that evidence would be either ruled inadmissible or excluded on discretionary grounds upon a trial (cf. Seymour v. Attorney-General (Cth) [2] and on appeal [3] ; Clayton v. Ralphs and Manos [4] ). To the contrary, a magistrate cannot intelligibly address the question whether a jury would not be likely to convict without deciding, to the best of his or her ability and on the material before him or her, what the evidence before the jury would be.

1. (1984) 1 F.C.R. 416, at p. 441. 2. (1984) 4 F.C.R. 498, at pp. 503-504. 3. (1987) 45 S.A.S.R. 347, at pp. 358, 409.

In its judgment in the present case, the New South Wales Court of Criminal Appeal rightly accepted that there are circumstances in which criminal proceedings instituted in the Supreme Court could constitute an abuse of process notwithstanding that there was evidence upon which a jury could find the accused guilty. Prolonged delay on the part of the Crown in instituting proceedings could give rise to such circumstances. An extreme and purely hypothetical case should suffice to illustrate the point. If, for example, it was established that the prosecution had deliberately delayed bringing proceedings until defence evidence was no longer available, the reason for and the consequences of the delay might produce a situation in which any subsequent trial would necessarily be unfair and an abuse of process. In the rare case where a trial would necessarily be unfair and an abuse of process, the Supreme Court possesses inherent jurisdiction permanently to stay further proceedings in the matter (see Jago v. District Court (NSW) [5] ).

If, in the course of committal proceedings, a serious question emerges about whether a prosecution of the accused in the Supreme Court would be stayed by that court as an abuse of its process, the magistrate hearing the committal proceedings is, in my view, neither obliged nor entitled to disregard that question in determining whether a committal order should be made. If the magistrate is of the view that, having regard to all the evidence, a prosecution in the Supreme Court would be permanently stayed as an abuse of the process of that court, he or she would, in my view, necessarily be of the opinion that a jury would not be likely to convict the defendant of an indictable offence if a committal order were made. That seems to me to be the effect of a literal construction of the words of s. 41(6). As a matter of policy, I see no convincing reason for departing from that literal construction. To the contrary, it seems to me to be undesirable that a magistrate should be required to make an order that an accused be committed for a trial which would constitute an abuse of process if it were held. Nor can I see any convincing reason why an accused should be subjected to the anxiety and jeopardy involved in being committed for trial in such circumstances. If the view be taken by the prosecuting authorities that a magistrate is clearly in error in concluding that the circumstances are such that proceedings in the Supreme Court would be permanently stayed, it will remain open to the Attorney-General or the Director of Public Prosecutions to test the matter in the Supreme Court by filing an indictment or, arguably, by proceedings for declaratory relief (see, Spautz v. Williams [6] ).

The material before the Court indicates that the question whether, if a committal order were made, proceedings in the Supreme Court would constitute an abuse of the process of that court was clearly raised before the learned magistrate in the present case. That being so, he was, in my view, required to advert to the question whether proceedings in the Supreme Court would be permanently stayed in forming an opinion about whether a jury would not be likely to convict the applicant of an indictable offence. His Worship did not, however, advert to that question in the process of considering whether he was of the opinion that a jury would not be likely to convict the applicant if an order were made that he be committed for trial. Instead, having indicated that he was not of that opinion, he purported himself to make an order permanently staying the committal proceedings. For the reasons given by Dawson J., that order was not one which he was entitled to make.

In the result, the Court of Criminal Appeal was correct in concluding that the order permanently staying the committal proceedings should not be allowed to stand. On the other hand, the applicant was, in my view, entitled to have the question whether proceedings in the Supreme Court would be permanently stayed as an abuse of the process of that court considered by the learned magistrate in forming an opinion about whether a jury would not be likely to convict him if a committal order were made. Ordinarily, the appropriate course in these circumstances would be to make orders which would have the effect that the matter was remitted to the learned magistrate to enable him to consider that question in that context. However, in the special circumstances of this case where there has already been long delay and where carefully reasoned views on that question have been expressed by the members of a Court of Criminal Appeal whose constitution has been made the object of a successful attack in this Court, it appears to me that the preferable course is to remit the matter to a freshly constituted Court of Criminal Appeal so that that court can consider whether it would be open to the learned magistrate to conclude that proceedings in the Supreme Court should be stayed as an abuse of process and that, for that reason, it was not likely that a jury would convict the applicant. Accordingly, I would grant special leave to appeal, allow the appeal and make orders having that effect.

This application for special leave to appeal raises the question whether a magistrate has power to order a stay of committal proceedings as an abuse of process of court. Such an order was made in committal proceedings in which the applicant was a defendant, but the order was set aside by the Court of Criminal Appeal. The applicant now seeks special leave to appeal against the decision of the Court of Criminal Appeal.

In 1977 Mr. Donald Bruce Mackay disappeared. He had been actively involved in a campaign against drug trafficking in the Griffith area of New South Wales. After his disappearance, a Royal Commission was appointed to inquire into drug trafficking. In 1979 the Royal Commission found that Mr. Mackay had been murdered by an organization, comprised largely of people of Calabrian descent, involved in the cultivation of marijuana in the Griffith district.

Following the finding of the Royal Commission, a document was published containing allegations that Mr. Mackay had been murdered, not by persons connected with the drug trade, but by his wife, his son and their solicitor or by someone on their behalf. The authorship of that document has not been established.

In 1987 the applicant, together with a number of others, was charged with conspiracy to pervert the course of justice and criminal defamation. Both charges related to the publication of the document in question but the charge of criminal defamation was based upon its publication on 29 July 1980 to a member of the Legislative Assembly of New South Wales, Mr. Michael Maher. The prosecution alleged that the applicant on that date asked Mr. Maher to read the document in Parliament and told him to keep on reading it despite any points of order which might be taken.

The committal proceedings in relation to both charges were heard in April and May of 1988. Applications based upon delay were twice made for a stay of the proceedings and were twice dismissed by the magistrate hearing the proceedings. Having heard the evidence, the magistrate discharged the defendants upon the charge of conspiracy. He also discharged the defendants other than the applicant upon the charge of criminal defamation. Upon that charge the magistrate found a prima facie case against the applicant and was not of the opinion, having regard to all the evidence before him, that a reasonable jury properly instructed would not be likely to convict the applicant. His failure to form such an opinion was relevant by reason of s. 41(6) of the Justices Act 1902 N.S.W.. Section 41, which lays down the duties of justices hearing committal proceedings for an indictable offence, provides in sub-s. (6) as follows:

When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices -

(a) if of the opinion that, having regard to all the evidence before the Justice or Justices, a jury would not be likely to convict the defendant of an indictable offence - forthwith order the defendant to be discharged as to the information then under inquiry; or

(b) if not of that opinion - commit the defendant for trial.

Notwithstanding this the magistrate did not commit the applicant for trial upon the charge of criminal defamation, but acceded to a renewed application, which he invited, for a stay of proceedings on that charge and ordered a permanent stay.

The matter came before the Court of Criminal Appeal by way of appeal against the stay order pursuant to s. 5F of the Criminal Appeal Act 1912 N.S.W.. That court expressed the view that, whilst the magistrate had no power to stay a trial, he did have power, even at the stage which the committal proceedings had reached, to stay those proceedings if they amounted to an abuse of the process of those committal proceedings. The Court of Criminal Appeal found, however, that the proceedings in the magistrate's court did not amount to an abuse of that court's process and set aside the order made by the magistrate. It directed the magistrate to conclude the hearing upon the charge of criminal defamation against the applicant in accordance with s. 41(6) of the Justices Act.

It was submitted on behalf of the applicant that the Court of Criminal Appeal was wrong in its view that the magistrate, in determining whether to impose a stay, was limited to considerations affecting the process of the committal proceedings themselves and was precluded from taking into account the fairness of any trial for which the applicant might be committed. It was, however, conceded that the stay which was ordered could operate only upon the committal proceedings and could not operate to prevent the trial of the applicant upon indictment. The assumption underlying this submission is that there was power, whatever its extent, inherent in the magistrate to bring the committal proceedings to a halt, even after the calling of evidence had been concluded, in order to prevent injustice or oppression constituting an abuse of process.

Such a power has been denied upon the highest authority in the United Kingdom. In Connelly v. Director of Public Prosecutions [7] views were expressed, notably by Lord Devlin [8] and Lord Pearce [9] , that every court has a right to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court. See also Mills v. Cooper [10] , per Lord Parker C.J. Whether such comments were correct in relation to inferior courts exercising ordinary judicial functions has been doubted (see Reg. v. Humphrys [11] per Viscount Dilhorne, [12] per Lord Salmon; to the contrary Reg. v. West London Stipendiary Magistrate; Ex parte Anderson [13] ), but it is clear that they do not extend to a magistrate hearing committal proceedings. In Atkinson v. Government of the United States of America [14] Lord Reid (with whom Lords MacDermott and Guest agreed) said:

The question is whether, if there is evidence sufficient to justify committal, the magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice. The appellant argues that every court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires.

The appellant argues that this was established, if it had been in doubt, by the decision of this House in Connelly v. Director of Public Prosecutions.

Whatever may be the proper interpretation of the speeches in Connelly's case with regard to the extent of the power of a trial judge to stop a case, I cannot regard this case as any authority for the proposition that magistrates have power to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to require him to be tried. And that proposition has no support in practice or in principle. In my view once a magistrate decides that there is sufficient evidence to justify committal he must commit the accused for trial.

1. [1964] A.C. 1254. 2. [1964] A.C., at p. 1354. 3. [1964] A.C., at pp. 1361-1362. 4. [1967] 2 Q.B. 459, at p. 467. 5. [1977] A.C. 1, at p. 26. 6. [1977] A.C., at pp. 45-46. 7. (1984) 80 Cr. App. R. 143, at p. 149. 8. [1971] A.C. 197, at pp. 231-232.

In Miller v. Ryan [15] , Rath J. read these passages as referring only to the case where the magistrate has heard all the evidence and not as denying generally the power of a magistrate to stay committal proceedings as an abuse of process. Rath J. went on to hold [16] that a magistrate otherwise does have power to stay committal proceedings upon the ground that they are oppressive and vexatious. The present case is, of course, one in which the magistrate had heard all the evidence before he purported to stay proceedings, but I am unable to read Lord Reid's remarks as confined to that situation. Nor is there any logical reason for doing so. If committal proceedings are an abuse of process justifying a stay, they do not cease to be so merely because the evidence is closed and there is no reason why a power otherwise existing to order a stay should cease at that point. The question is more fundamental than that and the answer lies in the nature of committal proceedings and of the function of the magistrate in hearing them.

1. [1980] 1 N.S.W.L.R. 93, at p. 107. 2. [1980] 1 N.S.W.L.R., at p. 109.

It has consistently been held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of an executive or ministerial function. See Ammann v. Wegener [17] ; Lamb v. Moss [18] ; Reg. v. Nicholl [19] ; In re Mercantile Bank; Ex parte Millidge [20] ; Huddart, Parker & Co. Pty. Ltd. v. Moorehead [21] ; Ex parte Cousens; Re Blacket [22] ; Ex parte Coffey; Re Evans [23] . The explanation is largely to be found in history. A magistrate in conducting committal proceedings is exercising the powers of a justice of the peace. Justices originally acted, in the absence of an organized police force, in the apprehension and arrest of suspected offenders. Following the Statutes of Philip and Mary of 1554 and 1555 (1 & 2 Philip & Mary c. 13; 2 & 3 Philip & Mary c. 10), they were required to act upon information and to examine both the accused and the witnesses against him. The inquiry was conducted in secret and one of its main purposes was to obtain evidence to present to a grand jury. The role of the justices was thus inquisitorial and of a purely administrative nature. It was the grand jury, not the justices, who determined whether the accused should stand trial.

1. (1972) 129 C.L.R. 415, at pp. 435-436. 2. (1983) 76 F.L.R. 296, at p. 321; 49 A.L.R. 533, at p. 559. 3. (1862) 1 Q.S.C.R. 42. 4. (1893) 19 V.L.R. 527, at p. 539. 5. (1909) 8 C.L.R. 330, at pp. 356-357. 6. (1946) 47 S.R. (N.S.W.) 145. 7. [1971] 1 N.S.W.L.R. 434.

With the establishment of an organized police force in England in 1829, the role of the justices underwent change. The most significant factor in this change was in The Indictable Offences Act 1848 U.K. (11 & 12 Vict. c. 42), "Sir John Jervis' Act", which provided for witnesses appearing before the justices to be examined in the presence of the accused and to be cross-examined by the accused or his counsel. Depositions of the evidence were to be taken down in writing and signed by the magistrate and the accused. The accused was no longer obliged to be examined. He was to be invited to make a statement and was to be cautioned with the now familiar words: "Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." The Act went on to provide that "if, in the opinion of such justice or justices such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise[s] a strong or probable presumption of the guilt of such accused party, then such justice or justices shall, by his or their warrant, commit him to the common gaol or house of correction or admit him to bail ".

The provisions of Sir John Jervis' Act established committal proceedings in essentially the same form as they are today and were adopted in New South Wales in 1850: Justices of the Peace (Adopting) Act 1850 N.S.W. (14 Vict. No. 43); see now Justices Act 1902 N.S.W., s. 41. It is to be noted that even under Sir John Jervis' Act the function of the justices was not to determine whether the accused should stand trial - that was still a matter for a grand jury - but to decide whether the accused should be committed to gaol to await trial, admitted to bail or discharged. Cf. The Interpretation Act of 1897 N.S.W., s. 28. But in determining whether an accused should be committed to gaol to await trial - committed for trial - it was necessary to determine whether a sufficient case had been made against him, thus duplicating in a practical sense the inquiry to be made by a grand jury in determining whether to indict the accused by returning a true bill. More and more the grand jury became a formality until it was finally abolished in the United Kingdom in 1933. By that time it had ceased to serve any real function.

The abolition of the grand jury was effected by the Administration of Justice (Miscellaneous Provisions) Act 1933 U.K.. It laid down another procedure for the indictment of offenders which gave a significance to committal proceedings which they do not have in this country. Under the provisions of that Act, as amended, a bill may only be preferred, save in limited circumstances, if the person charged has been committed for trial and, where he has been so committed, the proper officer of the Crown Court is required to sign a bill preferred for his signature. Upon signature the bill becomes an indictment and is proceeded upon accordingly. Where committal proceedings have resulted in the discharge of the person charged, no indictment can be brought except through fresh committal proceedings or by leave of a judge of the High Court. Thus committal proceedings in the United Kingdom have become an integral part of the process leading to trial and form a substitute for the grand jury process.

The procedure for indictment differed in New South Wales and other Australian colonies. Whilst the grand jury is mentioned in various enactments, it seems that it may never have been used in New South Wales. See, however, Reg. v. McKaye [24] . At all events it is clear that grand juries have not been used there since 1850 when the provisions of Sir John Jervis' Act were adopted. In 1823 the New South Wales Act Imp. (4 Geo. IV c. 96) provided that those crimes which would nowadays be indictable offences should be prosecuted "by information in the name of His Majesty's Attorney General, or other officer duly appointed for such purpose by the governor": s. 4. A similar provision was subsequently made by s. 5 of The Australian Courts Act 1828 Imp. (9 Geo. IV c. 83) but it was expressed to be an interim measure pending the constitution of grand juries. See also s. 17 and the Crimes Act 1900 N.S.W., s. 572 in relation to District Courts. Grand juries were never constituted, but the term "information" continued until s. 3 of the Criminal Law Amendment Act of 1883 N.S.W. made way for the use of the term "indictment". See now Crimes Act, s. 4(1) and Criminal Procedure Act 1986 N.S.W., s. 4.

Section 5 of The Australian Courts Act and s. 572 of the Crimes Act have been repealed by ss. 4 and 3 and Sched. 1 of the Miscellaneous Acts (Public Prosecutions) Amendment Act 1986 N.S.W.. Indictable offences are now punishable by information - to be called an indictment - on behalf of the Crown in the name of the Attorney-General or the Director of Public Prosecutions: Criminal Procedure Act, s. 4(1); Director of Public Prosecutions Act 1986 N.S.W., s. 7. A Crown Prosecutor, acting in the name and on behalf of the Director of Public Prosecutions, may also find a bill of indictment: Crown Prosecutors Act 1986 N.S.W., s. 5(1)(b). Thus in New South Wales indictment on behalf of the Crown in the name of the Attorney-General or the Director of Public Prosecutions takes the place of the grand jury's bill and the indictment founded upon it. The Attorney-General or Director of Public Prosecutions is not bound by the decision of a magistrate to commit or not to commit a person for trial. An indictment may be filed whether or not the accused has been committed for trial upon the charge contained in the indictment, indeed, even if the accused has been discharged in committal proceedings: Criminal Procedure Act, s. 4(2). See Reg. v. Cummings [25] ; Reg. v. Walton [26] ; R. v. Baxter [27] .

1. (1846) 1 Legge 289. 2. (1851) 1 Legge 706. 3. (1904) 5 S.R. (N.S.W.) 134.

In New South Wales the indictment also takes the place of the ex officio criminal information which it was the established privilege of the Attorney-General to file in the Queen's Bench Division of the High Court at will or at the relation of a private person or common informer. See Holdsworth, History of English Law, 3rd ed. (1944), vol. 9, pp. 236 et seq. Section 12 of the Administration of Justice (Miscellaneous Provisions) Act 1938 U.K. abolished criminal informations, although "informations filed ex officio by His Majesty's Attorney-General" were preserved. As a matter of practice ex officio informations have ceased to be used at all in the United Kingdom. See Edwards, Law Officers of the Crown (1964), p. 266. Notwithstanding the element of historical inaccuracy, any indictment filed in New South Wales in the absence of committal for trial, whether or not there have been committal proceedings, is commonly referred to as an ex officio indictment. See Barton v. The Queen [28] ; Kidston, The Office of Crown Prosecutor, Australian Law Journal, vol. 32 (1958), p. 148.

In fact the old, unpopular ex officio information, now largely abolished in the United Kingdom, was reflected in s. 6 of The Australian Courts Act rather than in the authorization given by s. 5 to the Attorney-General to assume the functions of a grand jury. Section 6 was peculiar to Australia and authorized any person, by leave of the Court, to exhibit a criminal information in the name of the Attorney-General for any crime or misdemeanour other than a capital offence. It was suggested in Reg. v. McKaye [29] that the reason for this extraordinary power lay in the "small number of inhabitants [of New South Wales] many of whom were convicts. In fact, it was very little better than a gaol, and it might be that in those days it was thought right that the Court as well as the Attorney-General should have power to direct informations to be filed in all cases, not being capital."

Committal for trial does not in New South Wales determine, as it now effectively does in the United Kingdom, whether a person charged with an offence shall be indicted. He will, of course, ordinarily stand trial if committed, although not necessarily so, and a person discharged may nevertheless be indicted. The powers of a magistrate in committal proceedings are thus, strictly speaking, still confined to determining whether the person charged shall be discharged, committed to prison to await trial or admitted to bail and do not involve the exercise of a judicial function.

The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s. 41(6) of the Justices Act that the magistrate should discharge a defendant if he is of the opinion that, having regard to all the evidence, a jury would not be likely to convict. Furthermore, the value of committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial: Barton v. The Queen.

The committal proceedings in question in this case were heard by a magistrate sitting as a Local Court. See Local Courts Act 1982 N.S.W., ss. 7 and 8. As Gibbs J. pointed out in Ammann v. Wegener [30] , it does not follow that because a magistrate is not exercising judicial functions he cannot be said to sit as a court. It is common enough for courts which are not subject to constitutional restraints to exercise administrative functions. Moreover, whilst not required to make a judicial decision, the magistrate was no doubt bound to act judicially in arriving at a result, that is to say, he was bound to act justly and fairly. There is controversy whether the existence of that duty, coupled with the nature of the function performed by the magistrate, is sufficient to subject him to prohibition and the question must still be regarded as undecided. In Sankey v. Whitlam [31] , Mason J. thought that such a result did follow, but the other members of the Court went no further than to affirm the availability of declaratory relief in a proper case.

1. (1972) 129 C.L.R., at p. 436. 2. (1978) 142 C.L.R. 1, at p. 83.

The fact that a magistrate sits as a court and is under a duty to act fairly does not, however, carry with it any inherent power. Indeed, in my view, the nature of a magistrate's court is such that it has no powers which might properly be described as inherent even when it is exercising judicial functions. A fortiori that must be the case when its functions are of an administrative character. In Reg. v. Forbes; Ex parte Bevan [32] , Menzies J. pointed out that:

"Inherent jurisdiction" is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as "inherent jurisdiction", which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have "inherent jurisdiction". Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol. 57 (1947) 83, at p. 85, cited by Jacob, The Inherent Jurisdiction of the Court, Current Legal Problems, vol. 23 (1970) 23, at p. 27 . But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental. 1. (1972) 127 C.L.R. 1, at p. 7.

The point may be illustrated by reference to the power to punish summarily for contempt not committed in the face of the court. Such a power is inherent in a superior court but forms no part of the powers of an inferior court: see Reg. v. Lefroy [33] . A superior court, however, not only has power to punish contempt against itself committed out of court, but in the exercise of its inherent jurisdiction it may prevent and punish summarily as a contempt any interference with the due course of justice in an inferior court. In John Fairfax & Sons Pty. Ltd. v. McRae [34] this Court pointed out that the jurisdiction over contempts committed against inferior courts was inherited by the superior court as "custos morum of all the subjects of the realm" and was but an aspect of "the traditional general supervisory function of the King's Bench, the function of seeing that justice was administered and not impeded in lower tribunals" [35] . The immediate basis for the exercise of such a function is to be found in the absence of any inherent jurisdiction in inferior courts similarly to protect themselves: see R. v. Davies [36] . A magistrate's court in New South Wales now has, of course, a statutory power to punish for contempt: Justices Act, s. 152.

1. (1873) L.R. 8 Q.B. 134. 2. (1955) 93 C.L.R. 351, at p. 365. 3. (1955) 93 C.L.R., at p. 363. 4. [1906] 1 K.B. 32, at pp. 47-48.

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction". There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf. R. v. Hush; Ex parte Devanny [37] .

The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him. The latter are now to be found in s. 41 of the Justices Act. But the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial. If the defendant is committed for trial and subsequently indicted, the charge contained in the indictment will take the place of the charge upon the information.

Section 41 of the Justices Act commences with sub-s. (1) which provides that: "Whenever a person charged with an offence upon an information appears or is brought before a Justice or Justices the Justice or Justices shall, if the person so charged has been provided with a written copy of the charges against him, take the evidence for the prosecution in [the] manner hereinbefore provided." The section goes on in sub-s. (2) to provide that after all evidence for the prosecution has been taken, the magistrate shall, after considering it, discharge the defendant as to the information if he is not of the opinion that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence and otherwise proceed. The section concludes the procedure with sub-s. (6) which requires the magistrate, after considering the evidence for the prosecution and any evidence for the defence, to order the defendant to be discharged as to the information if he is of the opinion that a jury would not be likely to convict the defendant of an indictable offence and otherwise to commit him for trial.

There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform. Having regard to the exceptional nature of the occasions upon which the prosecution of an offence will amount to an abuse of the process of the court trying that offence, oppression arising from, and confined to, the committal process itself is difficult to conceive. Indeed, having regard to the inability of a magistrate to stay the trial, it is not possible for him to know conclusively whether the person charged may, having regard to the interests of justice, safely be deprived of the advantage of committal proceedings. No doubt it is possible to conceive of committal proceedings being allowed to be conducted in an oppressive manner. But that is something within the control of the magistrate. Indeed, under sub-s. (9) of s. 41, which has not yet come into force, a magistrate will have added power for this purpose. Sub-section (9) reads:

The Justice or Justices may at any stage during the examination or cross-examination of any witness giving evidence for the prosecution or the defence terminate the examination or cross-examination on any particular matter if satisfied that any further examination or cross-examination on the matter will not assist the Justice or Justices in forming any opinion referred to in subsection (2) or (6). Be that as it may, the fact remains that in committal proceedings a magistrate is performing an administrative or ministerial function which is governed by statute and the terms of the statute afford no basis for the implication of any power to dispose of those proceedings by the imposition of a permanent stay.

What I have said would be sufficient to dispose of the appeal, but it is necessary in the circumstances to go on and deal with a further ground which was raised before us. When this matter came on for hearing in the Court of Criminal Appeal comprising Lee C.J. at C.L., Yeldham and Hunt JJ., counsel for the applicant suggested that Hunt J. should disqualify himself from sitting. The suggestion was prompted by a comment made by his Honour in his judgment in Waterhouse v. Gilmore [38] , which, it was submitted, could give rise to a reasonable apprehension of bias. The comment was as follows:

A prosecution has also been brought by the appropriate public authorities against Mr. A. Grassby, the former politician, in relation to his publication of grossly defamatory statements concerning the widow of Mr. Donald McKay (the Griffith drug campaigner), following Mr. Grassby's successful (but hardly meritorious) claim that her right to recover damages from him was barred by the Limitation Act 1969. That prosecution is obviously an appropriate use of the criminal law, as the fact of the publication by Mr. Grassby and the extraordinary circumstances surrounding it were not discovered until a statutory inquiry was held after the limitation period had expired. Hunt J., with the concurrence of the other two members of the Court, declined to disqualify himself from sitting, saying of the comment which he had previously made: It was no more than an illustration of one set of facts where I thought that the public interest, rather than merely private interests, would justify the use of the criminal defamation law.

As it subsequently turned out, that set of facts was incomplete, because the fact of this publication had indeed been discovered prior to the expiration of the civil limitation period, even if its significance may not have been realized at the time. That may be quite a different situation, but that is not something which I need explore at this stage. I simply have no view one way or the other.

No question of a stay of the prosecution of Mr. Grassby by reason of prejudice caused by the Crown's delay was under consideration by me in Waterhouse v. Gilmore. That is perfectly clear from my judgment in that case.

Whilst I have found it possible without regard to any question of lack of impartiality to reach the conclusion that there ought to be no interference with the orders made by the Court of Criminal Appeal, that Court in a joint judgment adverted to the possibility that, if the applicant were committed for trial, an application might be made to the trial court, based upon delay, for a stay of proceedings. The Court of Criminal Appeal then proceeded to express its views upon the merits of such an application in order to assist the judge who might hear it. If there were reasonable grounds for the apprehension of bias on the part of Hunt J., it would plainly be inappropriate for any judge hearing the later application to be guided by the views expressed by the Court of Criminal Appeal upon the question of a stay.

The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v. New South Wales Bar Association [39] ; Reg. v. Watson; Ex parte Armstrong [40] . If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs C.J. pointed out in Reg. v. Simpson; Ex parte Morrison [41] , the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.

1. (1983) 151 C.L.R. 288. 2. (1976) 136 C.L.R. 248. 3. (1984) 154 C.L.R. 101, at p. 104.

In this case, it is true that the comment in question was made in the context of another case, Waterhouse v. Gilmore, which involved issues different from those before the Court of Criminal Appeal in the present case. The comment was made by his Honour in a context in which he was attempting to draw a distinction between prosecutions for criminal defamation serving only private interests and those which, because they had a public aspect, justified the use of the criminal law. But in seeking to draw that distinction and in using the present case as an example, his Honour necessarily spoke of the prosecution of the applicant in terms of approbation at a time when the evidence against the applicant had not even been heard in committal proceedings. He did so without reference to any presumption of innocence. The comment was made, not merely in the course of argument where it may have been regarded as the momentary choice of a convenient example, but in a considered judgment. Moreover, the reference to the prosecution against "Mr. A. Grassby, the former politician" as being "obviously an appropriate use of the criminal law" involves an element of prejudgment in emphatic, if not coloured, terms which must surely have justified apprehension on the part of the applicant that the attitude of his Honour towards his prosecution might not be impartial or unprejudiced. Indeed, the fact that the comment appeared in a judgment in an entirely different case, in which presumably there was no consideration of the evidence against the applicant or of any argument that may have been available to him, is so unusual as to lend added significance to the comment. Nor does the factual error which may be contained in it lessen its impact. In the minds of those unfamiliar with the capacity of the judicial mind to accept correction, if there were an error it would merely serve as an additional suggestion that the remarks were of a gratuitous nature.

Whilst a court may readily accept that no prejudice was intended by his Honour in expressing the views which he did and that in hearing the appeal before him his Honour was quite capable of putting those views to one side, the conclusion is, I think, unavoidable that the applicant or a member of the public might entertain a reasonable apprehension of bias. The matter having been raised, the due administration of justice required Hunt J. to have disqualified himself. It follows that, should the applicant be committed for trial and should any application subsequently be made to the trial court to stay the proceedings, the views expressed by the Court of Criminal Appeal upon the matter should be disregarded in the determination of that application.

I would grant special leave and dismiss the appeal.

I agree with the conclusion of Dawson J. and with his Honour's reasons for reaching the conclusion that, in the circumstances, the magistrate was bound by s. 41(6)(b) of the Justices Act 1902 N.S.W. to commit the applicant for trial.

I agree also with what Dawson J. has said regarding the disqualification of Hunt J. as a member of the Court of Criminal Appeal.

It follows that there should be a grant of special leave to the applicant but that the appeal should be dismissed.