3 All offences were alleged to have arisen out of the one incident. The Crown case was based on the observations of police officers and civilian witnesses. Ms Gray pleaded not guilty. The defence case was that Ms Gray was not the driver. Two witnesses who were said to have been seated in a motor vehicle with her when she was spoken to by the police were identified as potential defence witnesses. Everything was disputed.

4 A trial date of 1 March 2002 was fixed. Negotiations occurred between the parties. A request was made by Ms Gray's counsel for a copy of the video tape footage taken of the charging procedure at the Mt Barker police station. The trial began as listed in the absence of the video. An adjournment was granted partway through the trial. On resumption on 18 April 2002 the court was told that whilst the video was being copied the police had accidentally erased the entire tape. The original videotape was overlaid with other images. The police subsequently withdrew all counts on the complaint except driving under the influence. On 24 April 2002 the magistrate granted an application that he disqualify himself and the matter was listed for retrial before a different magistrate on the remaining count.

5 On the first day of the retrial counsel for Ms Gray made an application to stay the proceedings. The magistrate was not prepared to conclude that he had the power to grant a permanent stay:

"It may be that the best view to take is to distinguish The Queen v O'Loughlin ex parte Ralphs on the basis that since 1992 the Magistrates Court of South Australia has been a court of record (per section 5 of the Magistrates Court Act). Whether that justifies a conclusion that a Stipendiary Magistrate is empowered temporarily or permanently to stay proceedings would seemingly be best left to a superior court to determine. I am not prepared to arrive at that conclusion."

6 Counsel for Ms Gray further contended that proceeding in the absence of the video tape amounted to an abuse of process. There was no voir dire hearing in regard to the alleged abuse of process. Evidence has yet to be taken on the retrial.

7 On appeal an affidavit outlining counsel for Ms Gray's submissions to the magistrate was filed. It contained the following:

• - "that every element of each charge alleged against [Ms Gray] was in dispute;
• - that one element of the charge alleged against [Ms Gray] was that she was driving a vehicle whilst so much under the influence of alcohol as to be incapable of exercising effective control;
• - that the only independent evidence as to [Ms Gray's] state of sobriety (given a contest between prosecution witnesses and the defendant and her witnesses as to this issue) was the video footage of her attendance with those officers before the charging sergeant following her arrest at the relevant time;
• - that on the basis of such video footage, independent evidence might have been able to be called for [Ms Gray] from an expert as to the degree, if any, of her intoxication at the time of the offence;
• - that the failure to follow the appropriate procedure in producing the video tape to the court upon subpoena, and the subsequent destruction of the video tape, had produced a result analogous to the circumstances arising in the cases of Police v Duncombe-Wall and Holmden v Bitar".

8 The magistrate refused the application for a stay. He concluded that even if he had power to stay the proceedings he would not do so as he understood that there was apparently other credible evidence which would allow for a fair trial:

"I remind myself that I am not dealing with a committal hearing, preliminary examination, nor an indictable offence, but a series of summary offences. I am in considerable doubt as to my authority to act at first instance otherwise by dismissing the complaint in an appropriate case. I decline to take that step. However, if I am wrong and notwithstanding my reasons for concluding that I do not have authority to act in the manner sought by [defence counsel], I should go on to consider the question whether abuse of process would have been involved here. In my opinion it is not.

...

The defendant's behaviour at Mount Barker for present purposes is irrelevant. At Mount Barker police station the defendant was interviewed and things were said and done. In my view they are not connected in time with what occurred at Hahndorf. If they are at all connected in circumstance then I have yet to hear how I will be asked to make that connection. I will not rule out the possibility yet that evidence as to what happened at Mount Barker can be given but my concern is with what happened at Hahndorf so far as counts one, three and four are concerned. The video tape recording of what happened at Mount Barker would not assist me to determine the state of the defendant's faculties or impairment thereof at Hahndorf, is my initial reaction. My determination of that issue will depend upon my evaluation of evidence of those who were able to observe the defendant at that place and time. For that reason I would not conclude that an abuse of process is involved and distinguish the factual setting in the Duncombe-Wall decision from that here."

9 The magistrate then reserved the following questions of law to this court pursuant to section 43 of the Magistrates Court Act 1991 (SA)[2]:

"Does a Magistrates Court in South Australia hearing charges under the Road Traffic Act on a Complaint have the power to stay (or to dismiss) the proceedings where the trial will be unfair (and hence amount to an abuse of the process of the Court)?"

"On the charges before the Court and the circumstances set out in the 'Reasons for Ruling of [the magistrate]' could a trial on the charges (or any one of them) in the absence of the video tape evidence be unfair?"

10 The enactment of the Magistrates Court Act established the Magistrates Court as a statutory entity. It is an inferior court of record with state wide jurisdiction.[3] The Magistrate's Court replaced the courts of summary jurisdiction that operated under the Justices Act 1921 (SA).

11 The Magistrates Court is a court of record[4]. The court's jurisdiction and powers are conferred by that Act. Section 9 of the Magistrates Court Act confers criminal jurisdiction.[5] This jurisdiction includes the hearing and determination of summary and minor indictable offences.

12 In Grassby v The Queen[6] Dawson J discussed the inherent jurisdiction of a court with defined powers:

"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 ... fundamental."

13 The power to prevent misuse is an incident of the general power of the court of justice to ensure fairness. A court of justice may prevent an abuse by staying proceedings. In Moevao v Department of Labour[7] the New Zealand Court of Appeal discussed the inherent power of a superior court to stay a prosecution for abuse of process. In a passage approved by the High Court in Jago v District Court (NSW)[8] Richardson J said:

"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice...

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor... that the Court processes are being employed for ulterior purposes or in such a way... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

14 The Magistrates Court has the implied power to ensure that its processes are not abused. It has been said that the continuation of processes which will culminate in an unfair trial can be seen as a misuse of the court processes. It has been held that such a situation will constitute an abuse of process. The public interest in holding a trial does not warrant the holding of an unfair trial. In Jago Mason CJ observed:

"In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed...

The continuation of processes which will culminate in an unfair trial can be seen as a 'misuse of the Court process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.

Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg. v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness."[9]

"The grant of such a stay in those circumstances does not mean that the judge is either stepping into the arena or assuming what is properly to be seen as a function of the executive government. It involves no more than the discharge of the responsibility and duty of a court to see that the process of law is not abused in proceedings before it."

15 In Rona v District Court of South Australia[10] King CJ considered the jurisdiction and powers of the District Court of South Australia:

"The District Court is created by statute, namely the District Court Act 1991, and its jurisdiction and powers are conferred by the statute. It is unable to draw upon "the well of undefined powers which is available to the Supreme Court" (Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17, per Dawson J) by reason of s 17 of the Supreme Court Act 1935. There is no doubt, however, that the District Court has power to stay criminal proceedings, permanently if necessary, to prevent abuse of its process: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, whether that power is regarded as inherent in the court by reason of its being a court of justice (Jago's case (supra), per Mason CJ (at 26) or as an implied by the grant of jurisdiction in s 9 of the District Court Act (Grassby v The Queen (supra), per Dawson J (at 16-17)).

That the power of a court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. Although the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the prosecution of proceedings brought for an improper purpose, Williams v Spautz (supra), "it is not possible to state exhaustively all the categories of abuse of process."

This reasoning was adopted and applied by Olsson J in Wunsch v SA Police[11] when considering the extent of the implied powers of the Magistrates Court:

"It seems to me that the reasoning applied by this Court in Rona v District Court (SA) [1995] SASC 4922; (1995) 63 SASR 223 clearly establishes that s 9 of the Magistrates Court Act 1991 (SA) carries with it at least an implied power, vested in that court, to ensure that its processes are not abused - subject to the caveat that, in relation to preliminary examinations, the only powers which, logically, can be exercised are those adverted to, in mandatory terms, by s 107 of the Summary Procedure Act.

It is, however, a moot point as to how far such an implied power may extend and it is certainly not appropriate, in the context of this case, to attempt a definitive exercise in that regard. Suffice it to say that it would clearly have power to precent patent abuses of processes evidenced by an improper manner of conduct of proceedings before it."

16 The conclusion to be drawn from these statements of principle is that the Magistrates Court in South Australia has the power to permanently stay proceedings where the prosecution of criminal proceedings will result in a trial that is unfair and an abuse of the processes of the court. The cases suggest that this power will only be exercised sparingly where good reason exists.

17 The magistrate in the present case felt constrained by R v O'Loughlin; Ex Parte Ralphs.[12] That decision concerned the jurisdiction of a special magistrate sitting as a court of summary jurisdiction pursuant to the Justices Act. Bray CJ concluded:

"... whatever a court of record may do by way of staying a prosecution, such a course is not appropriate or even competent in a court of summary jurisdiction in this State. In fact it seems to me that each time such a court sits, it sits ad hoc as constituted by the particular special magistrate or justices on the bench. There is no court of summary jurisdiction for the State as a whole, or for any geographical part of it, possessing permanence or continuity so as to permit one court to remove a stay imposed by a differently constituted court."

18 The remarks of Bray CJ were based on his analysis of the court's jurisdiction at that time. There was no court of summary jurisdiction for the state as a whole possessing permanence or continuity so as to permit one court to remove a stay imposed by a differently constituted court. As earlier observed this position was altered by the enactment of the Magistrates Court Act which provided for a court of permanence and continuity with state wide jurisdiction. The decision in O'Loughlin is distinguishable. It dealt with a materially different court.

19 It is only in rare cases that a court will order that proceedings be permanently stayed. In Barton v The Queen[13] Gibbs ACJ and Mason J said:

"It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced...though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue."

20 In Jago Mason CJ confirmed that the power to stay proceedings was only to be exercised in exceptional circumstances:

"'To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.'" [14]

21 Before proceedings can be permanently stayed, a court must be satisfied that the continuation of a prosecution would result in an abuse of process. Such a continuation must offend the principles of justice. There must be no other way of remedying the problem. There must be no other available means to bring about a fair trial. An order for a stay is an order of last resort. In Williams & Ors v Spautz[15] Mason CJ and Dawson, Toohey and McHugh JJ said:

"If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought."

22 The test for whether an abuse has occurred is whether the relevant act or omission is one which diminishes public confidence in the court as an institution. In Ridgeway v The Queen[16] Gaudron J explained the position as follows:

"The inherent powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice. And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice.

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment."

23 In Bass v Permanent Trustee Co Ltd[17] the High Court observed:

"The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. ...

If the 'facts' which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those 'facts'. In such a case, the parties' rights will be determined when the evidence finally determines the existence or non-existence of those 'facts'. ...

It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process."

24 In the present case the magistrate did not hear evidence on the application for a stay. There has not been a judicial enquiry considering whether a factual foundation had been laid to allow determination of whether there should be a permanent stay granted in these proceedings. There was no "concrete or agreed situation". No fundamental defect going to the root of the trial has been established. Exceptional circumstances have not been established. It is inappropriate to express a theoretical or hypothetical answer to the second question reserved. To answer the second question reserved would not conclude any issue of controversy.

25 The answers to the questions reserved are as follows:

Question: Does a Magistrates Court in South Australia hearing charges under the Road Traffic Act on a Complaint have the power to stay (or to dismiss) the proceedings where the trial will be unfair (and hence amount to an abuse of the process of the Court)?

Answer: The Magistrates Court in South Australia hearing charges under the Road Traffic Act on a complaint has the power to stay proceedings where a trial would be unfair and an abuse of the processes of the court.

Question: On the charges before the Court and the circumstances set out in the 'Reasons for Ruling of [the magistrate]' could a trial on the charges (or any one of them) in the absence of the video tape evidence be unfair?

Answer: It is inappropriate to answer this question.

26 The complaint is remitted to the Magistrates Court for hearing and determination.

List of CITATIONS AS THEY APPEAR IN THE JUDGMENT

"On the 15th day of December 2001 at Hahndorf in the said State, [Christina

Francis Gray] drove a vehicle namely a motor vehicle on a road, namely Main Road whilst she was so much under the influence of intoxicating liquor, as to be incapable of exercising effective control of the said vehicle.

Section 47 of the Road Traffic Act, 1961

On the 15th day of December 2001, at Hahndorf in the said State, [Christina Francis Gray] did not truly answer questions put to her by a member of the police force for the purpose of obtaining information which may have led to the identification of the person who was driving a vehicle namely a motor station wagon VFA513 on Main Road Hahndorf at about 1.45 am on the 15th day of December 2001.

Section 38 of the Road Traffic Act, 1961.

On the 15th day of December 2001, at Mt Barker in the said State, [Christina Francis Gray] being a person who was required under Section 47e of the Road Traffic Act, 1961 to submit to a breath analysis refused to comply with all reasonable directions of a member of the police force in relation to this requirement

Section 47e of the Road Traffic Act, 1961

On the 15th day of December 2001, at Hahndorf in the said State, [Christina Francis Gray] being the driver of a vehicle namely a motor vehicle on a two way road namely Main Road, with a dividing line, you did not, except as permitted under rule 134 or 139(2) of the Australian Road Rules, drive to the left of the dividing line.

Rule 132(2) of the Australian Road Rules.

It is further alleged that the said dividing line which took the form of 2 parallel continuous lines, applied to you as the driver and was a traffic control device on the said road."

2 Section 43 provides:

"(1) The Court may reserve any question of law arising in a criminal action (except a preliminary examination of a charge of an indictable offence) for determination by a superior court.

(a) if the question arises in proceedings related to an offence categorised under the Summary Procedure Act 1921 as an industrial offence - for determination by the Industrial Court;

(b) in any other case - for determination by the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the matter for determination by the Full Court).

(3) The Court for whose determination a question of law is reserved under this section may determine the question and give any consequential orders or directions that may be appropriate in the circumstances of the case."

3 Section 16(2) provides "The Court may sit at any place (either within or outside the State)."

4 Section 4 provides "The Magistrates Court of South Australia is established."

5 Section 9 provides "Subject to the Summary Procedure Act 1921 the Court has jurisdiction -

(a) to conduct a preliminary examination of a charge of an indictable offence;

(b) to hear and determine a charge of a minor indictable offence;

(c) to hear and determine a charge of a summary offence."

6 [1989] HCA 45; (1989-1990) 168 CLR 1 at 16-17

7 [1980] NZLR 464 at 470‑471, 473‑476, 478‑482

8 [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 30, Deane J at 58

9 [1995] SASC 4922; (1994-95) 63 SASR 223 at 226

10 [1995] SASC 4922; (1994-95) 63 SASR 223 at 226

11 (1994-1995) 64 SASR 203 at 210

12 (1971) 1 SASR 219 at 231

13 [1980] HCA 48; (1980) 147 CLR 75 at 94-95

14 [1989] HCA 46; (1989) 168 CLR 23 at 34 and 31

15 [1992] HCA 34; (1991-1992) 174 CLR 509 at 519

16 (1995) 184 CLR 19 at 74-75

17 [1999] HCA 9; (1999) 198 CLR 334 at [45] and [50-51]. See also Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 and Tepko Pty Ltd v Water Board (2001) 206 CLR 1.

[1] The complaint was in the following terms:

"On the 15th day of December 2001 at Hahndorf in the said State, [Christina Francis Gray] drove a vehicle namely a motor vehicle on a road, namely Main Road whilst she was so much under the influence of intoxicating liquor, as to be incapable of exercising effective control of the said vehicle.

Section 47 of the Road Traffic Act, 1961

On the 15th day of December 2001, at Hahndorf in the said State, [Christina Francis Gray] did not truly answer questions put to her by a member of the police force for the purpose of obtaining information which may have led to the identification of the person who was driving a vehicle namely a motor station wagon VFA513 on Main Road Hahndorf at about 1.45 am on the 15th day of December 2001.

Section 38 of the Road Traffic Act, 1961.

On the 15th day of December 2001, at Mt Barker in the said State, [Christina Francis Gray] being a person who was required under Section 47e of the Road Traffic Act, 1961 to submit to a breath analysis refused to comply with all reasonable directions of a member of the police force in relation to this requirement

Section 47e of the Road Traffic Act, 1961

On the 15th day of December 2001, at Hahndorf in the said State, [Christina Francis Gray] being the driver of a vehicle namely a motor vehicle on a two way road namely Main Road, with a dividing line, you did not, except as permitted under rule 134 or 139(2) of the Australian Road Rules, drive to the left of the dividing line.

Rule 132(2) of the Australian Road Rules.

It is further alleged that the said dividing line which took the form of 2 parallel continuous lines, applied to you as the driver and was a traffic control device on the said road."

[2] Section 43 provides:

"(1) The Court may reserve any question of law arising in a criminal action (except a preliminary examination of a charge of an indictable offence) for determination by a superior court.

(a) if the question arises in proceedings related to an offence categorised under the Summary Procedure Act 1921 as an industrial offence - for determination by the Industrial Court;

(b) in any other case - for determination by the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the matter for determination by the Full Court).

(3) The Court for whose determination a question of law is reserved under this section may determine the question and give any consequential orders or directions that may be appropriate in the circumstances of the case."

[3] Section 16(2) provides "The Court may sit at any place (either within or outside the State)."

[4] Section 4 provides "The Magistrates Court of South Australia is established."

[5] Section 9 provides "Subject to the Summary Procedure Act 1921 the Court has jurisdiction -

(a) to conduct a preliminary examination of a charge of an indictable offence;

(b) to hear and determine a charge of a minor indictable offence;

(c) to hear and determine a charge of a summary offence."

[6] [1989] HCA 45; (1989-1990) 168 CLR 1 at 16-17

[7] [1980] NZLR 464 at 470‑471, 473‑476, 478‑482

[8] [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 30, Deane J at 58

[9] [1989] HCA 46; (1989) 168 CLR 23 at 30-31

[10] [1995] SASC 4922; (1994-95) 63 SASR 223 at 226

[11] (1994-1995) 64 SASR 203 at 210

[12] (1971) 1 SASR 219 at 231

[13] [1980] HCA 48; (1980) 147 CLR 75 at 94-95

[14] [1989] HCA 46; (1989) 168 CLR 23 at 34 and 31

[15] [1992] HCA 34; (1991-1992) 174 CLR 509 at 519

[16] (1995) 184 CLR 19 at 74-75

[17] [1999] HCA 9; (1999) 198 CLR 334 at [45] and [50-51]. See also Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 and Tepko Pty Ltd v Water Board (2001) 206 CLR 1.