Neill v County Court of Victoria [2003] VSC 328

Supreme Court of Victoria|2003-09-08|Before: REDLICH J

County Court appeal - Magistrates' orders set aside - Scope of s.86 Magistrates' Court Act 1989 - Whether power to review order of Magistrate -Prosecution for breach of s.49(1)(b) and s.49(1)(f) Road Safety Act 1986 - Whether double jeopardy - Implied power of Magistrate - Implied power of County Court to stay proceedings where abuse of process - Whether convictions constitute double punishment.

Pursuant to Order 56 of Chapter 1 of the Supreme Court Rules the plaintiff seeks relief in the nature of certiorari, prohibition, and mandamus and also seeks a declaration in relation to a ruling made by a Judge of the County Court on 6 November 2002. The ruling was made at the commencement of an appeal by the plaintiff under s.83 Magistrates Court Act 1989 against sentencing orders made in the Magistrates' Court at Melbourne on 10 September 2001 in relation to charges brought pursuant to Section 49(1)(b) and Section 49(1)(f) Road Safety Act 1986. The ruling was given before the evidence to be called on the appeal was heard.

Following the ruling an application to this Court pursuant to Order 56 was foreshadowed. His Honour indicated that he and other County Court Judges would be assisted by clarification of the extent of the County Court's powers. The appeal was then adjourned to permit such a course. The interruption of the hearing of a criminal matter does not, as this Court has frequently observed, serve to advance the orderly and efficient administration of justice. It is a course which should generally be discouraged.

The plaintiff had been charged that on 1 July 1998 he drove a motor vehicle while more than the prescribed concentration of alcohol was present in his blood, being .05 grams per 100 millilitres of blood (the s.49(1)(b) offence). He was further charged that on 1 July 1998 he did, within three hours after driving a motor vehicle, furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) Road Safety Act 1986, and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol, being .05 grams per 100 millilitres of blood was present and the concentration of alcohol indicated by the analysis to be present in his blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle the (s.49(1)(f) offence). On the s.49(1)(b) offence, the plaintiff was convicted and fined $700, all licences were cancelled and he was disqualified from obtaining a licence for a period of 23 months. In relation to the s.49(1)(f) offence the plaintiff was convicted and discharged. Following his convictions, the plaintiff lodged a Notice of Appeal to the County Court at Melbourne against his conviction on both charges. That appeal commenced on 26 August 2002. What thereafter occurred is set out in the ruling of the County Court Judge which was given on 6 November 2002. It is that ruling which gives rise to the originating motion now brought by the plaintiff.

Because of the issues which arise for determination on this application, it is convenient if I set out the relevant passages of the ruling:

"During the debate on Mr Billings submissions I directed that the orders of the learned Magistrate be set aside and accordingly I am faced with two charges properly laid and properly before this Court. Mr Billings does not submit otherwise. In my view the proper course is to hear the evidence and then determine whether the two charges are found proved on the evidence presented. It is then appropriate to consider whether Mr Billings is correct in his submission that the sentence should be imposed on one of the charges and the other charge be struck out or dismissed. In my view I do not have any power to strike out a charge properly laid before hearing any evidence in the matter. With respect to Mr Billings I reject his submission and propose to hear the two charges before me de novo."

The application before me was commenced by Originating Motion filed on 5 January 2003, the first defendant being the Court who the plaintiff submits failed to exercise jurisdiction and who, as is customary, took no part in the proceedings. The second defendant is the police officer who was the informant in the Magistrates' Court. The Director of Public Prosecutions filed an appearance on his behalf. The application and motion were supported by an affidavit sworn by the plaintiff on 18 February 2003. An affidavit was filed on behalf of the second named defendant by the solicitor of the Office of Public Prosecutions on 27 May 2003. There are differences between the accounts given in each of the affidavits as to what occurred on the hearing of the County Court appeal on 26 August 2002. Neither party in the course of their oral submissions before me sought to attach any importance to these differences. There was no dispute as to the facts set out in the learned Judge's ruling.

The plaintiff sought relief in the nature of certiorari seeking to having the ruling of the learned Judge quashed, orders in the nature of prohibition to prohibit the County Court from proceeding to hear the appeal until one of the charges was struck out or otherwise disposed of, orders in the nature of mandamus directing the County Court of Victoria to strike out or otherwise dispose of conclusively one of the said charges before continuing to hear the appeal and a declaration that s.86 of the Magistrates' Court Act 1989 grants the County Court power to strike out or otherwise dispose of conclusively one of the two charges brought on appeal.

Relief in the nature of certiorari under Order 56 will go to correct errors of jurisdiction on the part of an inferior court or errors of law on the face of the record. Craig v South Australia[1]; Re McBain Ex parte Australian Catholic Bishops' Conference.[2] If his Honour's reasons contained within the ruling, as it is so described, reveal a mistaken denial of the existence of jurisdiction or misconceive the court's role or the nature of its jurisdiction, it would be appropriate to grant the plaintiff relief.[3] Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[4] His Honour's reasons would also constitute an error of law on the face of the record. That his Honour's reasons are part of the record now seems beyond argument. Flynn v DPP[5]; Thompson v His Honour Judge Byrne[6]; De Corrado v His Honour Judge Gebhardt[7]; Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission[8]; Turil v Potter[9]; Kuek v Wellens[10]; Perkins v County Court[11]; Sidebottom v County Court of Victoria[12]; McPherson v County Court of Victoria[13]; Kuek v Victoria Legal Aid.[14]

A declaratory judgment is available on judicial review though the power is not derived from 0.56. See s.36 Supreme Court Act 1986; Ainsworth v Criminal Justice Commission[15]; Forster v Jodedex Aust. Pty Ltd.[16] The existence of other remedial procedures by resort to the prerogative writs does not prevent action for a declaratory judgment. See Barnard v National Dock Labour Board[17]; Vowell v Hastings Shire.[18]

I need not, for reasons which will become apparent, refer further to the other relief sought.

(1) Both before the learned County Court Judge and in support of this application it was submitted by Mr Billings, who appeared on behalf of the plaintiff, that the Magistrate had acted contrary to s.51(1) Interpretation of Legislation Act 1984 and contrary to common law principles in convicting the plaintiff on both charges. The plaintiff was doubly punished for essentially the same conduct.

It was submitted that the learned Magistrate should have dismissed or struck out one of the charges as a conviction by itself constitutes punishment. Consequently the plaintiff was compelled to appeal against both convictions when he should only have had to appeal against one sentencing order s.83(1) Magistrates' Court Act 1989.

(2) The Magistrate's error could not, the plaintiff contended, have been corrected by appealing to the Supreme Court pursuant to s.92 Magistrates' Court Act 1989 because such an appeal, if successful, would have corrected the sentencing error leaving the appellant convicted on the other charge which he would be barred from defending by virtue of s.83(2) Magistrates' Court Act 1989.

(3) It was argued on the County Court appeal and before me that s.86 Magistrates' Court Act 1989 conferred sufficiently wide powers upon a County Court Judge so that the error made by the learned Magistrate could be corrected at the commencement of hearing the County Court appeal.

(4) Both on the appeal and before me Mr Billings referred to the forensic advantage which he submitted the Crown obtained by virtue of charging the plaintiff with the s.49(1)(b) offence and the s.49(1)(f) offence. The s.49(1)(b) offence required the person charged to discharge the onus raised by s.49(4) Road Safety Act with respect to the blood alcohol analysis whereas proof of the result of an analysis under the other charge remained at all times with the prosecution. To establish the s.49(1)(f) offence requires proof that there has been compliance with the proscribed statutory procedure. It was submitted that the prosecution should not have a forensic advantage at the commencement of a County Court appeal because of the requirement that a conviction on only one of the charges should have been recorded at the sentencing stage in the Magistrates' Court.

(5) The effect of the provisions of the Magistrates' Court Act 1989 governing County Court appeals from a sentencing order of the Magistrate was to confer upon a County Court Judge all of the powers which resided with the Magistrate which included a power to correct any defect of procedure or error of law made by the Magistrate. It was submitted that s.86 authorises the Judge to consider the Magistrate's sentence and correct the error of law resulting from conviction on both charges.

(6) It was submitted both on the appeal to the County Court and before me that the County Court Judge has an inherent power to prevent an abuse of process to ensure procedural fairness and natural justice. The Judge should have struck out one charge or prevented an appeal on one of the charges.

(7) It was contended that either pursuant to s.86 Magistrates' Court Act or exercising the inherent power the County Court should have stayed the appeal until the prosecution elected as to which charge they were prepared to proceed with on the appeal thereby correcting the sentencing error made by the learned Magistrate.

(1) By contrast to the position adopted by the prosecutor in the County Court appeal, Ms Judd who appeared before me on behalf of the second named defendant contended that there was no basis for concluding that the learned Magistrate had necessarily fallen into error in the course of the sentencing process. Ms Judd drew my attention to s.7 Sentencing Act 1991 which sets out the type of sentencing orders which can be pronounced by a Magistrate including the power to record a conviction and order the release of the offender or the adjournment of the hearing on conditions or the discharge of the offender or without recording a conviction order the release of the offender on the adjournment of the hearing on conditions or order the dismissal of the charge.

(2) It was submitted that where two charges were both found proved, even if they were based upon the same act or omission, which was not conceded, it was not incumbent upon the prosecution to withdraw one of the charges as the sentencing options available to the Magistrate would not require the Magistrate to impose a conviction on both charges in the event that it would be wrong to do so. It was submitted that it was a matter for the Magistrate to determine the appropriate sentencing order and that the prosecution had acted properly in the course it followed.

(3) On the hearing of an appeal from the Magistrates' Court to the County Court, counsel for the director submitted that the Judge must set aside the orders made by the Magistrate (s.86(1)(a) Magistrates' Court Act 1989) and proceed to hear the appeal without regard to the correctness of the course followed by the Magistrate. As the appeal was a hearing de novo, the course followed by the Magistrate was irrelevant. For the purposes of such an appeal the County Court Judge was required to exercise all of the powers of the Magistrate. (Section 86(1)(b) and (c) Magistrates' Court Act 1989).

(4) It was said by Ms Judd that the County Court Judge had power to entertain a submission at the commencement of the appeal that it was an abuse of process to hear one or both of the charges.

(5) It was argued that the course followed by the Magistrate could not constitute an abuse of either the Magistrates' Courts or County Courts' process.. Any claim of abuse of process would have to relate to the conduct of the informant in having laid and proceeded with the charges. Ms Judd relied on the fact that no such submission was made by the plaintiff before the County Court. It was submitted that the plaintiff had conceded on the appeal that the prosecution was permitted to bring both charges and have them heard at the same time. It was submitted that an error of law by the Magistrate in sentencing cannot found an abuse of process submission on the County Court appeal.

(6) Finally it was said that the Judge's ruling did not involve any jurisdictional error but rather the Judge had exercised his discretion within jurisdiction by indicating that he would consider the question of whether a charge should be struck out at the conclusion of the appeal.

The term "re-hearing" by an appellate tribunal has traditionally been regarded as entitling the appellate tribunal to receive further evidence. Its powers are not necessarily confined to those possessed by the tribunal at first instance. The origins of this appellate process can be traced back to the Court of Appeal in Chancery where the trial was heard again on the evidence used in the court below but with a special power to receive further evidence. R v Longshaw[19]; Camilleris Stock Feeds Pty Ltd v Environment Protection Authority[20]; Builders Licensing Board v Sperway Constructions Pty Ltd & Ors.[21] Such an appeal stricto sensu is to be contrasted with a re-hearing de novo where the matter is heard afresh and an appellate decision is given on the evidence presented at the re-hearing. Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors.[22] In an appeal by way of hearing de novo the party succeeding below derives no advantage from the result below and must win the case a second time. Turnbull v The New South Wales Medical Board[23]; Aldrich v Ross[24]

The powers of an appellate court are defined by statute. It is common place for appellate courts to be invested with power to receive and act upon evidence which was not before the court at first instance. The statute conferring original jurisdiction will ordinarily determine the limits upon the exercise of such power. Eastman v The Queen.[25] Upon an appeal stricto sensu the powers of the appellate court are exercisable only where the appellant can demonstrate some legal factual or discretionary error in the court or tribunal at first instance. Allesch v Maunz.[26]

The nature of appeals to the County Court pursuant to s.83 of the Magistrates' Court Act 1989

The right of appeal to the County Court from a sentencing order of the Magistrates' Court is created by statute. The true nature of the appeal depends upon the terms of the statute confirming the right. Re Coldham; ex-parte Brideson (No 2).[27] The nature of such appeals and the powers of the County Court are to be determined by reference to the statutory regime set out within sub-division 1 of Division 4 of Part 4 Magistrates' Court Act 1989. Section 85 requires the appeal to be conducted as a re-hearing. It is settled that the nature of such an appeal is in the form of a hearing de novo. R v Longshaw[28]; DPP v Fricke[29]; Justices of Surrey and Bell[30]; Sweeney v Fitzhardinge.[31] The procedure followed on County Court appeals pursuant to s.83 Magistrates' Court Act 1989 was explained by Gillard J in Mr and Mrs X v Secretary to the Department of Human Services & Anor[32] in the following terms:

"The appeal court is not concerned with the reasons given by the body at first instance for they are irrelevant, and it is not concerned as to whether an error was made or not by the body at first instance or whether the decision was wrong. It is not concerned as to whether any error of law occurred at first instance. On the appeal, the party who brought the proceedings below presents his case first, the appeal is determined on the evidence called on the appeal, the parties call whatever relevant evidence each considers appropriate and the Court determines the appeal without regard to the reasons of the Magistrate. The parties may call other evidence, they are not bound to call evidence which was called on the first hearing and the Court of Appeal substitutes its decision based on the facts proven and law as at the date of the appeal [60]."

The appeal may be instituted in relation to any sentencing order made pursuant to Parts 3, 4 or 5 Sentencing Act 1991. Once an appeal has commenced the Magistrates' Court is functus offico and the County Court must set aside the orders of the Magistrates' Court. Section 86(1)(a) Magistrates' Court Act 1989; Helfenbaum v Sattler.[33] The Court may exercise any power which the Magistrates' Court could have exercised and may make any order which the Magistrates' Court could have made. Section 86(1)(b) and (c).

Section 86 of the Act requires the order of the Magistrates' Court to be set aside so that when the Judge embarks upon the hearing of the appeal it is as though the order of the Magistrates' Court has gone. DPP v Fricke. The suggestion by Beach J in Marr v Judge Lewis,[34] a case upon which the plaintiff relied, that it is only mandatory to set aside the orders of the Magistrates' Court after having heard the appeal was subsequently re-visited by Beach J in Helfenbaum v Sattler.[35] His Honour concluded that at the commencement of the hearing of the appeal the order of the Magistrate is either formally set aside or at least deemed to be set aside. This was for the reason that:

"As the hearing is a hearing de novo and regardless of the outcome the order of the Magistrates' Court must be set aside there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court. Support for that proposition is to be found in the decision of the Full Court in DPP v Fricke[36]."

Does s.86 of the Magistrates' Court Act 1989 confer a power to review and correct an error of the Magistrate?

It was submitted that decisions of the County Court in Rattray v Murphy[37] and Roderick v Poppeliers[38] support the proposition that the County Court at the outset of an appeal has power to correct an error of law made by the Magistrate. Both cases concerned the question of whether the County Court could permit the amendment of the information charging the offence. Neither case assists the plaintiff.

Pursuant to s.83 of the Magistrates' Court Act an appeal to the County Court is against a "sentencing order" as defined in s.3(1) and means any order made under the Sentencing Act 1991 following upon a finding of guilt. In Rattray's case Judge Mullaly initially considered whether the County Court on appeal could amend the sentencing order pronounced by the Magistrate. While the existence of a sentencing order attracts the jurisdiction to entertain a County Court appeal, it is, as I have observed, mandatory that the sentencing orders be set aside on the hearing of the appeal. The County Court on appeal is not concerned with the form or substance of the sentencing orders made by the Magistrate. Consequently, no issue can arise on such an appeal as to whether the County Court can or should amend the sentencing orders pronounced by the Magistrate. Judge Mullaly was correct in his conclusion that the County Court had no such power although I am not to be taken as necessarily agreeing with His Honour's reasons for so concluding.

Judge Mullaly in Rattray's case then considered whether the Magistrate had erred in law in permitting an amendment of the information at the commencement of the summary hearing before the Magistrate. His Honour in my respectful view, fell into error in approaching the matter in this manner. It was not for the Judge to consider whether the Magistrate had made an error in allowing the amendment but whether, if the prosecution sought to amend the information on the hearing of the appeal, it should be allowed to do so. The appeal was a re-hearing of the offence as expressed in the information at the time of the commencement of the summary hearing before the Magistrate. It was irrelevant on the County Court appeal that the information had been amended at the commencement of or during the Magistrates' Court hearing. If the prosecution wishes to amend an information, it may do so on the hearing of the appeal. The decision of Judge O'Shea in Roderick v Poppeliers is to this effect and accords with the approach adopted by Ormiston J (as he then was) in DPP v Webb.[39]. The County Court may on the hearing of the appeal exercise the power which the Magistrates' Court possesses to amend an information. This does not advance the plaintiff's argument.

The plaintiff, in his written submissions to the County Court, which were adopted before me, supported his argument that s.86 allows the County Court to correct any error of law made by a Magistrate at the commencement of an appeal by reference to the decision of Beach J in Marr v Judge Lewis and Anor.[40] His Honour had before him a motion to quash the decision of a County Court Judge who on appeal had imposed the same sentence as had been imposed on the appellant by the Children's Court sentencing the appellant to 12 months detention in a youth training centre. By the time of the appeal the appellant had attained the age of 18 years and doubts were raised as to whether or not the County Court could deal with the appeal or impose the same sentence as the Children's Court as the appellant was no longer a child within the meaning of the Children and Young Persons Act 1989. Beach J concluded that the wording of s.86(1)(b) Magistrates' Court Act was clear and unambiguous placing the County Court Judge in the position of the Children's Court Magistrate at the time the appellant came before the Children's Court so that the Judge on appeal had the power to make the same orders as the Magistrate made or could have made. Marr's case does not advance the plaintiff's contention that s.86 confers a power to correct an error of law by the Magistrate.

Section 86 is to be construed as investing in the County Court during the re-hearing the same capacity to pronounce any order which the Magistrate could have pronounced or to exercise any power which the Magistrate could have exercised at the time of the proceedings in the Magistrates' Court. The fact that a County Court Judge may reach a different conclusion to the Magistrate on either the question of conviction or sentence or both with respect to a particular charge does not mean that the County Court on appeal is correcting an error of law made by a Magistrate. A County Court Judge upon hearing the evidence which may be the same or different to the evidence called before the Magistrate will make a determination about whether the evidence establishes the guilt of the appellant. After receiving submissions and such evidence as the appellant may call on penalty - which may be the same or different to that placed before the Magistrate - the Judge will make the sentencing order which he or she regards as appropriate. As s.86(1)(b) provides, such order as the Judge pronounces may be the same as that made by the Magistrate but that will be because the Judge in the exercise of his or her discretion having regard to the evidence heard on the appeal considers that to be the correct order to make.

The County Court Judge hearing an appeal from the Magistrates' Court has no jurisdiction to undertake an examination of whether a Magistrate has made an error of law during the course of the summary hearing before the Magistrate. Budget Nursery Pty Ltd v Commissioner of Taxation.[41] I reject the plaintiff's submission that the Judge wrongly concluded that he had no jurisdiction to determine whether the Magistrate had made an error of law which should be corrected on appeal. Neither the nature of the re-hearing process nor s.86 permit or require a County Court Judge to review any decision made by the Magistrate to determine whether he or she erred in law.

I now turn to the alternate argument that the Judge pursuant to the Court's inherent jurisdiction had power to strike out one of the charges.

Power of the Magistrates' Court and County Court on appeal to prevent an abuse of process

The County Court exercising its civil jurisdiction has those powers incidental to its jurisdiction to prevent abuse of and correct irregularities in and fraud upon its rules and procedures. Mason v Ryan[42]; Duncan v Lowenthal[43]; R v McGowan.[44] This power has been described as part of the Courts' inherent jurisdiction. The Magistrates' Court has similar incidental powers.

The County Court in hearing an appeal pursuant to s.83 Magistrates' Court Act is conducting a criminal proceeding Perkins v County Court of Victoria.[45]

In common law jurisdictions, in a criminal matter there has been a traditional reluctance to intrude into the area of the prosecutor's discretion to commence or maintain a prosecution even where the Court considered the prosecution to be inappropriate. Barton v The Queen[46]; R v Jewett[47]; R v Humphreys[48]; _R v Powe_r[49]; Fox v Attorney-General & Anor.[50]

While the right of a civil court to stay proceedings on the basis that they constituted an abuse of its process was beyond controversy as the judgment of Lord Selborne LC in Metropolitan Bank Ltd v Pooley[51] demonstrated, until Connelly v Director of Public Prosecutions[52] the view appeared to prevail that courts lacked jurisdiction to stay a criminal prosecution for abuse of court process because of the general reluctance of the courts to intervene in that process. In Connelly Lord Morris of Borth-Y-Gest observed that a criminal court had power to prevent an abuse of its process so as to "safeguard an accused person from oppression or prejudice"[53] described by Lord Devlin as "an inescapable duty to secure fair treatment for those who are brought before them."[54] Despite decisions of the highest courts in New Zealand and Canada which recognised the power of a criminal court to stay proceedings; R v Hartley[55]; Moevao v Department of Labour[56]; DPP v Humphreys[57]' R v Jewett[58] the matter remained in doubt in Australia. Rath J in Miller v Ryan[59] following the statement of Lord Parker CJ in Mills v Cooper[60] held that a Magistrate had power to stay criminal proceedings on the grounds that they were an abuse of process. Subsequently the High Court in Barton v The Queen[61] declared that a power existed in a superior court to stay an ex officio indictment but that it had yet to determine whether the power of the Courts to prevent abuse extended as far as Connelly and Cooper suggested. In Herron v McGregor[62] McHugh JA, in the judgment of the Court concluded that absent a contrary decision of the High Court, the power of a superior Court extended so far.

In successive judgment in 1989 the High Court laid to rest any such doubts at least in relation to superior courts recognising the right of a superior court to stay criminal proceedings to prevent an abuse of its process. Jago v The District Court of New South & Ors[63]; Grassby v The Queen.[64]

In Grassby v The Queen Dawson J, with whom the other members of the Court agreed, concluded that though a Magistrate's powers may be defined, it possessed jurisdiction arising by implication which extended to ordering a stay of proceedings where appropriate. His Honour emphasised the fundamental distinction between inherent jurisdiction and jurisdiction by implication, the Magistrates' Court being confined to its defined powers and those which arise by necessary implication. Despite the judgment of Dawson J the circumstances in which such a power existed and could be exercised by a Magistrate remained attended by doubt for some time.

A Magistrates' Court has jurisdiction to "hear and determine all summary offences". Section 25 Magistrates' Court Act 1989. I am not concerned here with jurisdiction but with the power conferred by the Act and "such powers as are incidental and necessary to the exercise of the jurisdiction or power so conferred". Parsons v Martin[65]; Harris v Caladine.[66]

There are numerous illustrations of the powers of a Magistrate which arise by necessary implication. A Magistrate may give leave to an informant to withdraw an information prior to or during the course of the hearing. Willis v Magistrates' Court of Victoria[67]; Evans v DPP.[68] The implied power to stay proceedings has been invoked in a series of cases in which offenders were unlawfully brought within the Court's jurisdiction Levine v Director of Custodial Services[69]; R v Chen[70]; Queen v Raby.[71] The power of a Magistrate to compel the production of documents by an informant is necessarily implied to achieve fairness. Gaffe v Johnson[72]; Kaschke v Hornsby.[73]

In the absence of statutory limits a discretionary power to stay proceedings is necessarily implied. A Magistrate finally determining rights and obligations in the exercise of the court's summary jurisdiction has the power to stay criminal proceedings before it which are an abuse of process. Such power is an essential attribute of the exercise of the jurisdiction with which it is invested. Smiles v Commissioner of Taxation[74]; Coleman v Gray[75]; DPP v Shirvanian.[76] It is a power which is reasonably required for the effective exercise of the jurisdiction which has been expressly conferred upon it. Grassby v The Queen[77]; Pelechowski v The Registrar, Court of Appeal (NSW).[78] It is reasonable to imply the power notwithstanding that it is an exception to the duty of a court to hear and determine that proceeding. DPP v Shirvanian[79]; Newson v Ly[80]; Bou-Simon v Attorney-General.[81]

In England Magistrates exercising a summary jurisdiction are also recognised as having the implied power to stay proceedings on the ground of abuse of process in relation to matters directly affecting the fairness of the proceedings before them. R v Horseferry Road Magistrates' Court ex-parte Bennett.[82]

A Victorian Magistrate's implied power to prevent an abuse of the Court's process can no longer be doubted. Tien Tran v Magistrates' Court of Victoria & Anor[83]; Edebone v Allen[84]; DPP v Croaker.[85] Similar statutory provisions in relation to local courts in other States have been construed in a like manner as supporting such a power. Wunsch v SA Police[86]; R v Vuckov & Romeo[87]; Whitbread v Cooke[88]; Police v R[89]; Commonwealth Service Delivery Agency v Bourke[90]; Wilson v The Police[91]; Doonan v McKay[92]; Visser v Hodgetts[93]; Ross v Hou Doc Tran[94]; DPP v Shirvanian[95]; DPP v Sinton[96]; Rona v District Court (SA)[97]; Police v Gray.[98]

In CC v Department of Human Services[99] Habersberger J found that the County Court has an inherent power to stay a Children's Court order pending an appeal to prevent unfairness or injustice to a party on the appeal. Although I prefer to speak of the power as deriving by implication from the jurisdiction with which it is expressly invested, the County Court clearly has the implied power to protect its own processes from abuse whether it be exercising the Magistrate's powers on appeal or original jurisdiction.

As a County Court Judge exercises the powers of a Magistrate upon the commencement and during the hearing of an appeal pursuant to s.83 Magistrates' Court Act 1989 the County Court Judge may make orders to prevent an abuse of the criminal process before the Court.

Nature and Width of the power to prevent an abuse of process

The implied power will enable the Magistrates' Court to prevent an abuse of its criminal process where the conduct complained of involves vexation, oppression or unfairness to the defendant or where tolerance of the abuse to its process will bring the administration of justice into disrepute. Jago v District Court (NSW)[100]; Williams v Spautz[101]; Walton v Gardiner[102]; Fox v Attorney-General and Anor[103]; Rogers v The Queen[104]; R v Horseferry Road Magistrates' Court ex-parte Bennett[105]; R v Latif.[106]

Only in exceptional circumstances will a Court exercise its power to prevent such an abuse. Jago v District Court[107]; Walton v Gardiner[108]; Rogers v The Queen[109]; Ridgeway v The Queen[110]; Williams v Spautz.[111] The power to prevent an abuse of process may be exercised where the proceedings are doomed to fail (Ridgeway) or where a fair trial cannot be had because of irremediable prejudice (Jago) or where a purpose is pursued which the law is not intended to serve (Spautz). The circumstances which may give rise to an abuse are not closed. Shirvanian.[112] Many of the circumstances in which a stay of proceedings for abuse of process has been considered are referred to in the judgment of Teague J in R v Dowding, Grollo and Grollo.[113] By virtue of either inherent jurisdiction (superior court) or implied power, every court has the capacity to ensure that its processes are not utilised to cause injustice. Maxwell v The Queen[114]; CSR Ltd v Cigna Insurance Australia Ltd.[115] See Freckelton V. 2 Criminal Law Investigation and Procedure - Victoria par 2.17.40.

An abuse of process may arise in circumstances which infringe against the prohibition against "double jeopardy". Walton v Gardiner.[116] It is a notion closely linked to the ancient maxim nemo debet bis vexari pro una et eadem causa (a person shall not be twice vexed for one and the same cause). The existence of the power to stay double punishment for the same act or omission is now settled. Williams v Spautz.[117]

The judicial discretion to prevent an abuse of process may be exercised where a person is subjected twice to prosecution for the same act or faces the peril of punishment inconsistent either with a previous conviction or acquittal or faces repeated prosecution where no plea in bar is available. The judicial discretion to stay criminal proceedings extends to prevent double punishment for what is substantially the same conduct by an accused. Moevao v Department of Labour[118]' R v Hoar[119]; Connelly v Director of Public Prosecutions[120]; Rogers v The Queen[121]; R v Sessions[122]; Pearce v The Queen.[123] If there was an abuse of process involved in the plaintiff facing both charges at the commencement of the County Court appeal, the learned County Court Judge had the power to prevent it.

All Courts whether they be superior, intermediate or inferior courts have powers to permanently or temporarily stay a prosecution as a result of their implied power to prevent an abuse of their process. Jago[124]; Rogers[125]; Ridgeway[126]; DPP v Shirvanian[127]; Nominal Defendants v Manning.[128]

In R v O'Meara the New South Wales Court of Appeal stated:

"The power to grant a stay to prevent, or to rectify the consequences of an abuse of process, permits the grant of both permanent and conditional or limited stays. The nature of the stay granted depending upon the circumstances which have given rise to the application. A limited or conditional stay may be granted until such time as the prejudice to which the defendant will otherwise be subjected if the proceedings were to continue has been removed (Barton v The Queen)."[129]

A permanent stay should not be granted in the absence of a fundamental defect which goes to the root of the hearing or trial and must be of such a nature that nothing can be done in the conduct of the hearing to relieve against its unfair consequences. Barton.[130]

A Magistrates' Courts' power extends to prevent an abuse of process by staying the charges. Such a course may be followed prior to the commencement of the hearing of the charges, during the course of the hearing or at the conclusion thereof. DPP v Shirvanian; Edebone v Allen[131]; Halsbury's Laws of Australia - 'criminal procedure', V.11 par 39. Underwood J in Visser v Hodgetts[132] followed the decisions in R v O'Loughlin[133] and Potter v Liddy[134] holding that there was only a power in a Magistrate to dismiss but not stay proceedings. The decision of Nathan J in Edebone v Allen that a Magistrate had power to stay was considered unsupported by authority. Subsequent appellate decisions in DPP v Shirvanian and Police v Gray[135] declined to follow R v O'Loughlin distinguishing it on its facts. Both appellate decisions confirmed that the Magistrate's power to stay is a necessary ancillary power to those expressly conferred.

The preponderance of authority in most States is to the effect that a Magistrate has the implied power to stay proceedings. Newby v Moodie[136]; Watson v Attorney-General[137]; Tien Tran v Magistrates' Court of Victoria[138]; Police v R[139]; Commonwealth Service Delivery Agency v Bourke[140]; Wilson v Police[141]; DPP v Shirvanian[142]; Jago[143]; DPP v Sinton[144]; Nominal Defendant v Manning[145]; Rona v District Court of South Australia[146]; Police v Gray[147]; DPP v Heagney[148]; R v O'Meara[149]; Newson v Ly[150]; Bou-Simon v Attorney-General[151]; Evans v DPP[152]; Wills v Laurence.[153] The same power exist in local courts in England and New Zealand. R v Horseferry Road Magistrates Court[154]; Fox v Attorney-General.[155]

Many applications to stay proceedings are based upon facts anterior to and independent of the evidence supporting the prosecution case. Edebone v Allen.[156] As a consequence such applications will normally occur prior to the commencement of the prosecution. Commonwealth Service Delivery Agency v Bourke[157]; Police v Gray.[158] For the reasons I have given, a County Court Judge exercising the jurisdiction conferred pursuant to s.83 Magistrates' Court Act may, in exceptional circumstances, make such orders at the commencement of or during or at the conclusion of the appeal to prevent an abuse of process.

The oral and written submissions made to the County Court Judge were to the effect that failing an election by the prosecutor as to which charge he wished to proceed with, the court should strike out one of the charges. Although the submissions made before the County Court were adopted before me, no oral argument was advanced to support such a power to strike out or dismiss. The written submission filed in these proceedings spoke only of the Judge's power to stay proceedings. As the matter has not been fully argued I shall make only a few general observations.

Decisions made by the prosecution within power are ordinarily beyond judicial superintendence. There must be substantial limits upon a court's power to make orders which have the effect of intruding upon the functions of the Crown. B_arton v The Queen_[159]; Queen v Pearce.[160] I seriously doubt the County Courts' power to select a charge and strike out or dismiss it. Nor would it be desirable for a Court to be involved in such a process. It is the exclusive province of the prosecution to determine what charge will proceed and it is for the court to determine if there is a need to stay the proceedings. The circumstances for granting a stay must be strictly confined to those rare occasions where the Court's process is being utilised as an instrument of injustice.

Different considerations arise at the sentencing stage of criminal proceedings. A court may dismiss a charge to avoid double punishment where the doctrine of double jeopardy is applicable

I turn now to consider whether the plaintiff, by having to face both charges was exposed to an abuse of process.

Does the prosecution or conviction of the plaintiff for both a s.49(1)(b) offence and a s.49(1)(f) constitute an abuse of process?

The learned Judge observed in his ruling, that the plaintiff did not argue that it was not open to the prosecution to bring both charges and have them heard together. However, before me it was faintly suggested that such a course constituted an abuse of process, although the point had not been taken on the appeal. The nature of the charges, their elements and the acts relied upon to establish them bear upon double jeopardy in a similar manner at both the prosecution and punishment stage of the Court's process.

The provisions of s.49 Road Safety Act 1986 have already been the subject of extensive consideration in superior courts. A s.49(1)(f) offence and a s.49(1)(b) offence was the subject of an appeal to the High Court in Mills v Meeking & Anor.[161] In that case the driver had been charged under s.49(1)(f) and at the close of the prosecution case it was submitted that it was an abuse of process of the court to charge him under s.49(1)(f) rather than s.49(1)(b). The Magistrate amended the information to charge the driver with an offence under s.49(1)(b). On appeal it was argued that s.49(1)(f) applied only when the defendant drove a vehicle which had been involved in an accident and the Magistrate had erred in amending the information. The majority of the court concluded that s.49(1)(f) did not refer only to a motor vehicle that had been involved in an accident. Mason CJ and Toohey J, with whom Brennan J agreed, stated that there was nothing within the statutory regime which would require a driver to be prosecuted for a s.49(1)(b) rather than a s.49(1)(f) offence. They concluded that in accordance with s.51(1) Interpretation of Legislation Act a driver was liable to be prosecuted under either of those provisions and there was no basis for alleging abuse of process because a decision was made to prosecute under (f) rather than (b).[162] Mason CJ and Toohey J referred with apparent approval to the following passage from the judgment of the Victorian Court of Appeal[163]:

"Section 49(1)(b) and section 49(1)(f) create different offences. The first relates in effect to having more than 0.05% alcohol in the blood when driving or in charge of a motor vehicle while the second relates solely to having that excess within three hours after driving."[164]

Batt J (as he then was) in Nutting v Rider[165] had concluded that the ultimate relevant facts for a s.49(1)(f) offence were different to those under s.49(1)(g). His Honour also concluded that the Magistrate, having dismissed a charge against s.49(1)(g) could convict under s.49(1)(b) and that no abuse of process was involved as principles of double jeopardy or autrefois acquit were not infringed.[166]

The decision of the Victorian Court of Appeal in Meeking v Crisp, affirmed in the High Court, was followed in the subsequent decision of the Court of Appeal in Bracken v O'Sullivan[167] it again being emphasised that a s.49(1)(f) offence and a s.49(1)(b) offence are different in nature.

These offences were the subject of further consideration in Thomspon v Judge Byrne & Ors.[168] The driver was charged with both a s.49(1)(b) offence and a s.49(1)(f) offence. At the conclusion of the summary hearing the Magistrate convicted the driver under s.49(1)(f) and either struck out or dismissed the s.49(1)(b) offence. The driver appealed his conviction pursuant to s.83 Magistrates' Court Act 1989. After a re-hearing de novo the Judge of the County Court found the s.49(10(f) offence proved and imposed a penalty. The plaintiff then sought a judicial review under Order 56 Supreme Court Rules inter alia on the ground that the s.49(b) offence was the appropriate offence and it was an abuse of process for the prosecution to have pursued a s.49(f) offence.

The plaintiff Thompson's application was heard at first instance by Ashley J who, consistent with the High Court's decision in Meeking observed that the two provisions on their face creates separate offences requiring proof of different matters and leaving different defences available. His Honour noted that it had not been argued before the High Court that s.49(1)(f) should be read down so that there could be no conviction thereunder unless a conviction could also have been obtained for a s.49(1)(b) offence. His Honour, correctly in my view, concluded that both in principle and by reference to the decision in Meeking, such a construction of s.49(1)(f) could not be accepted. His Honour rejected the submission that there was any abuse of process disclosed as a result of the informant proceeding against the plaintiff under s.49(1)(f). His Honour said:

"Even if it were the situation that a charge laid under s.49(1)(b) would certainly have failed (that was not established in the present matter) it would not follow that it was an abuse of process to lay a charge under s.49(1)(f). As I have already said, the elements of the offences constituted by the two paragraphs are different; and a conviction under s.49(1)(f) is not precluded by it being demonstrated that a charge laid under s.49(1)(b) would have failed".

The plaintiff Thompson's argument that there was an abuse of process in proceeding with the s.49(1)(f) offence was rejected in the Court of Appeal[169] for the reasons given by the High Court in Meeking. The plaintiff Thompson then appealed to the High Court who affirmed its previous decision in Meeking.[170] In considering the nature of an offence under s.49(1)(f) Gleeson CJ, Gummow, Kirby and Callinan JJ said:

"The offence as defined in Part (f) does not select as its criterion the coincidence of intoxicating liquor or the concentration of alcohol at the time the person charged 'drives a motor vehicle or is in charge of a motor vehicle'. Instead, it attaches its consequences to the result of the recording of breath analysis, so long as such analysis was performed in accordance with the Act, on a sample provided by the person within three hours after driving or being in charge of the motor vehicle. The offence enacted by Part (f) is quite different from that enacted by the earlier paragraphs of the sub-section. Whilst it is true that the consequence is to afford to the apprehending officer and the prosecuting authorities discretions the exercise of which has significance for the charge which the accused must meet, that is by no means unique. Ordinarily, at least in cases which do not give rise to a collateral attack on the lawfulness of the exercise of the discretion or to a complaint that its exercise involves an abuse of process affording a ground for relief against prosecution on that charge, courts will not interfere in such decisions. In Mills, the majority expressly reserved the position which would arise if it were shown that the prosecution of the person upon one offence rather than another amounted to an abuse of process. But in this, as in many other cases where the alternative charges are available arising out of the same facts, it is for the police and prosecuting authorities to determine which charges may be brought. If that determination has consequences for the ingredients of the offence which must be proved and the defence is available to the person charged, that affords no reason for assuming that Parliament have meant something different from what it has stated in clear terms."[171] (emphasis mine)

The Court of Appeal was again called upon to consider these provisions in the DPP v Foster and Bajram.[172] President Winneke after observing that the two offences are discreetly different noted that the court had been informed that it was the practice in Victoria to allege both offences and to try them together but in the event of a finding of guilt to seek a conviction and penalty on one offence only.[173] The court gave apparent approval to the submission made on behalf of the Director that charges under the two provisions might depend for their proof upon the same set of facts but were nonetheless discreetly different offences which involve proof of different ingredients. It was not suggested in the reasons for judgment that it was other than appropriate for the prosecution to allege both offences and to seek to prove each by admissible evidence. This procedure was, counsel for the Director submitted, consistent with the decision of the High Court in Pearce v R.[174] So much appears to have been accepted by the Court of Appeal as correct.

Counsel for the Director in Foster and Bajram referred to the practice of not proceeding to conviction on each charge and submitted that it might not be open to a court to penalise the defendant on each charge having regard to the provisions of s.51 Interpretation of Legislation Act 1984. This issue was not considered by the court in its judgment.

In DPP v Connor[175] O'Bryan J, hearing an appeal from an order of the Magistrates' Court dismissing a s.49(1)(b) offence and a s.49(1)(f) offence observed that though the proof of the two offences might depend upon the same facts, they were as the court in Foster and Bajram had stated, nonetheless discreetly different offences involving proof of different ingredients. His Honour thought that "had the Magistrate found both charges proved, he would not have imposed a penalty on each charge".[176] After considering questions which are irrelevant for present purposes, O'Bryan J ordered that in lieu of the Magistrate's order dismissing both charges, a conviction be recorded against each charge unless the informant elected to withdraw one charge and that the proceedings be remitted to the Magistrates' Court for plea and sentence.[177] The plaintiff in the case before me submitted that this order of O'Bryan J in Connor should be viewed as per incuriam.

The differences in the two provisions was further considered by the Court of Appeal in Furze v Nixon[178] and again in Luff v The DPP[179] and again no suggestions were made that the charges were not properly laid or heard together.

Though the prosecution for a s.49(1)(b) offence and a s.49(1)(f) offence be based on the same facts it has been repeatedly said that the elements of the two offences are different and the ultimate facts to be proved for each offence are different. If an informant chooses to lay charges for both offences it is not the function of a court to involve itself in determining whether or not a prosecution should be instituted for one or both unless it can be demonstrated that the defendant cannot receive a fair hearing or there is some other consideration such as mala fides on the part of the prosecution which would warrant the court's interference. R v Humphrys[180]; Barton[181]; Shirvanian.[182]

Despite the numerous occasions that these two provisions have been judicially considered I am aware of only one occasion on which it was thought that it would be inappropriate for a s.49(1)(b) offence to be laid conjunctively with one under s.49(1)(f). Hedigan J in DPP v Constantinou[183] expressed the view that the offences should not be laid conjunctively when the driver had undergone a preliminary breath test. These observations were obiter and were undoubtedly influenced by His Honour's decision that where a s.49(1)(b) offence is "annexed" to a s.49(1)(f) offence in a case in which the police procedure commenced with a requirement under s.53(1) to undergo a preliminary breath test, the elements or pre-conditions were the same as those for the s.49(1)(f) offence.[184] The Court of Appeal in Foster and Bajram overruled the decision in DPP v Constantinou.

The authorities to which I have referred demonstrate that there is nothing inappropriate in principle in the laying of charges and undertaking a prosecution of both offences which contain different elements notwithstanding that they are based on the same facts.

Whether a conviction on both offences was contrary to law

It was said, that even if the prosecution was entitled to lay and proceed with both charges, the Magistrate had fallen into error in convicting upon both charges and one of the charges should have been dismissed or struck out by the learned Judge. In support of this argument counsel relied upon Mills v Meeking[185]; R v Sessions[186]; Nutting v Rider[187]; and _Papadopoulos v H_unter.[188] None of these decisions considered or resolved the point in question. The plaintiff contends that an abuse of process arose as a consequence of the sentencing orders pronounced by the Magistrate who was not by virtue of s.51 of the Interpretation of Legislation Act 1984 or the common law permitted to punish the plaintiff for both offences.

An offender may not be convicted twice for the same offence. Where the one offence is an element of another offence the person cannot be convicted of both offences. Li Wan Quai v Christie[189]; R v Dodd[190]; R v Sessions.[191] The rule against double jeopardy is the foundation for the pleas of autrefois. Davern v Messel.[192] Though a plea in bar of autrefois does not strictly arise out of the prosecution of a summary offence in the Magistrates' Court[193] the doctrine of double jeopardy would prevent dual convictions. Whether as a consequence of the common law or by virtue of s.51 Interpretation of Legislation Act 1984 an offender cannot be punished twice for the same act or omission. Sentencing - Fox & Freiberg 2nd Edit par 1.409. Whilst the boundaries of the doctrine remain uncertain they extend to prohibit conviction where the elements of the offences are the same, or where the two offences contain elements established by the same act unless there are different consequences from the same act. R v Sessions[194]; R v Bekhazi[195]; R v Lelah[196]; R v El Kotob Hi Jazi[197]; R v R.H.McL[198]; R v Henderson[199]; R v Lancefield[200]; Queen v Pearce[201]; Pearce v The Queen[202]; R v Tricklebank.[203] Though the doctrine has a scope of operation beyond such circumstances, the fact that the offences are similar or arise substantially out of the same facts is not determinative of whether a conviction on both offences offends these principles. R v Henderson[204]; R v El Kotob Hi Jazi .[205]

To determine whether an abuse of process had arisen as a consequence of the plaintiff facing two sentencing orders, His Honour would need to have before him both the facts upon which the prosecution relied to establish each of the offences and the facts relied upon by the plaintiff to establish the conduct of the prosecution which it was said gave rise to the abuse of process. Without such material the learned Judge was not in a position to determine the plaintiff's preliminary application. That may explain both the ruling and the course that the learned Judge adumbrated. His Honour intended to hear the evidence.

The plaintiff's submission necessitates some consideration of the evidence which was before the learned Judge as to what occurred before the Magistrates. Only the plaintiff's affidavit refers to what occurred. Following the determination of some preliminary issues by the Magistrate the hearing of the two informations commenced. The affidavit continues:

"5(f) Mr Palmer indicated to the court that under the circumstances (and in order to preserve his position) he would not enter any plea to either of the charges and I was not called upon personally to enter any plea. The matter then effectively proceeded ex parte with evidence called by the prosecution. No witnesses were cross-examined and no evidence was led on my behalf. At the conclusion of the prosecution case (and after being satisfied that no evidence was being called on my behalf) the learned Magistrate proceeded to find both charges proved. 5(g) No plea was taken as to sentence on my behalf. However Mr Palmer submitted to the court that one of the charges had to be struck out, given that the defendant could not be punished on both charges either at statute or at common law. The police prosecutor submitted to the court that the court was entitled to convict and punish on both charges, that there was no law to the contrary, and that he was asking for a conviction on both charges. Furthermore, the police prosecutor refused to elect to withdraw one of the charges or indicate to the court that he consented to one of the charges being struck out. 5(h) Mr Palmer submitted that to punish on both charges was an abuse of process and contrary to law. He further submitted that a conviction was itself a punishment. No authorities were produced to the court by Mr Palmer or the police prosecutor. 6. The learned Magistrate ruled that she would convict me of both charges and then proceeded to do so."

The plaintiff's affidavit also refers to what occurred in the proceedings before the learned County Court Judge upon the hearing of the appeal. Although the second defendant disputes part of that account the relevant portion of the plaintiff's affidavit to which I shall refer is not in dispute.

"Para 13(c). My counsel proceeded to inform the learned Judge as to what he was instructed had occurred at the Magistrates' Court as outlined in paragraphs 5 and 6 herein."

The parties in their submissions before me were in disagreement as to whether the Magistrate had made a sentencing error in convicting the plaintiff on both offences. The parties also disagreed as to whether the learned Judge had accepted the plaintiff's submission that the Magistrate had made such an error. The learned Judge would not have been in a position to form a judgment about this issue in the absence of the facts relied upon by the prosecution to establish each offence.

Counsel for the plaintiff's attention was drawn during submissions before me to the fact that paragraphs 5, 6 and 13(c) of the plaintiff's affidavit do not suggest that the evidence upon which the prosecution intended to rely to establish the commission of either offences was revealed to the County Court Judge. It appears that the submissions in the County Court proceeded on the assumption that these offences arose out of the same facts and circumstances and were based upon the same act or omission.

The learned Judge had not been placed in a position where he could make a determination of whether the convictions offended the principle against double punishment. It could only be as a result of agreed facts conveyed to the Judge by way of submission or as a result of hearing evidence that the Judge would be in a position to discern whether the two offences were based upon the same facts and more importantly upon the same acts or omissions of the plaintiff. No such facts or evidence were placed before the County Court. Because of the lack of evidence, I like the learned Judge, cannot form a clear view as to whether the convictions offended the doctrine of double punishment.

If, upon the facts becoming known to the County Court Judge, it emerges that the convictions infringe upon the protection afforded to an offender from double punishment, it would be necessary to determine whether there was any unfairness which should be attributed to the prosecution. It is the conduct of the prosecution which is critical to a determination of whether the Court's process has been abused. Were the error that solely of the Magistrate, no abuse of process could on any view arise. It would be an error of law which was redressed by setting aside the orders on the re-hearing pursuant to s.86 Magistrates' Court Act. It could have been addressed by way of appeal to the Supreme Court pursuant to s.92 Magistrates' Court Act.

The provisions of the Sentencing Act 1991 provide the Magistrate and a County Court Judge on appeal with all of the powers that are necessary to ensure that an offender is not doubly punished for the same conduct. When s.51 Interpretation of Legislation Act 1984 comes into play the court cannot convict on both offences as a conviction constitutes punishment. Section 7 Sentencing Act 1991; Queen v Pearce.[206] Where the act or omission constituting each offence is identical or an act or omission required to establish one offence is a necessary part of one or more elements of the other offence a conviction on both is in most circumstances impermissible.[207] Where that is not so but both offences arise out of the same facts the question may still arise as to whether there should be a conviction on both charges, or if it is recorded whether any additional punishment should be imposed. Queen v Pearce.[208]

An error of law in sentencing by the learned Magistrate does not found a claim for abuse of process. Were it otherwise, any appellant to the County Court could rely upon any procedural or substantive error made by the Magistrate which might have affected the finding of guilt to found a submission that a particular charge should not be before the County Court on the appeal. This would convert a re-hearing de novo in the County Court into an appeal stricto sensu in which the decision and the process by which it was reached would be amenable to review on appeal. A Court at first instance does not by committing an error of law or by the making of an order based upon such an error abuse its own process or that of the Court to whom an appeal from its decision may lie.

If it be the case that the Magistrate fell into error in the sentencing process, any conduct of the prosecution which may have brought about an abuse of process was not explored before me. Double punishment that is not accompanied by prosecutorial conduct sufficient to constitute an abuse of process, will not justify any intervention by the learned Judge.

Although a County Court Judge re-hearing charges on appeal is not concerned with errors of law made by a Magistrate I would leave open the possibility that events could occur during a summary hearing which might support an application to a County Court Judge on appeal to make such orders as were necessary to prevent an abuse of process. Such exceptional circumstances as need to be established are not revealed by the limited affidavit material that has been filed.

I have considered the plaintiff's motion and summons on the basis that the submission made to the learned Judge that he had the relevant power was based upon s.86 Magistrates' Court Act or alternatively upon the inherent jurisdiction of the Court to prevent an abuse of process (which I have treated as reliance by the plaintiff upon the implied power possessed by a Magistrate). I have referred to the passage of the plaintiff's affidavit which suggests that an oral submission was made on the day of the appeal that the Court invoke its inherent powers to regulate its own proceedings and prevent an abuse of process. It may be that it was not made sufficiently clear to the learned Judge that he was being asked in the alternative to prevent an abuse of process. The written submissions filed on behalf of the plaintiff in the County Court and which I was given did not raise such a question or seek the exercise of such power. The written submission is confined to the plaintiff's argument that the learned Judge had the necessary powers by virtue of s.86.

It is quite possible that His Honour's ruling was limited to the relief sought in the plaintiff's written submission which relied only on the suggested power conferred by s.86. So confined, His Honour's reasons would not disclose any error of law. If His Honour's ruling was that he had no power to prevent an abuse of process His Honour's reasons would disclose an error of law as to jurisdiction. If that is how His Honour's reasons are to be interpreted, I do not think there is any substance in the submission made on behalf of the director that His Honour has not made a jurisdictional error but has exercised a discretion within jurisdiction. A conclusion by the Court that it had no power to strike out the charge before hearing the evidence cannot accommodate the possibility that His Honour was exercising a discretion.

No argument was advanced by either party as to the appropriateness of any of the relief sought by the plaintiff. Granting relief on single issues arising within a criminal matter before the matter is finally determined should generally be discouraged. [209] As the hearing of the County Court appeal was adjourned pending an application to this Court for a review of the learned Judge's reasons, I do not regard it as necessary or appropriate to further consider the intended ambit of His Honour's ruling that the Court had no power to make the order sought by the plaintiff. The occasion does not call for granting any of the relief in the form in which it is expressed in the originating motion or summons. The declaration sought by the plaintiff was only as to the scope of s.86 Magistrates' Court Act 1989.

A County Court Judge at the commencement of an appeal pursuant to s.83 Magistrates' Court Act 1989 or during the hearing of the appeal has power to stay proceedings in the event that the Court is satisfied that it would constitute an abuse of process for the informant to be permitted to prosecute a charge on appeal.

It will be for the learned County Court Judge to hear and determine the appeal according to law. It will be for the Judge to determine whether, in accordance with these reasons, there has been an abuse of process as a consequence of prosecutorial conduct which would require an order to stay proceedings.