PERRIN -v- JACKSON [2008] WASC 77 (8 May 2008)

Criminal law - Jurisdiction, practice and procedure - Arrests and incidental powers - Scope of magistrate's powers to stay proceedings for abuse of process - Whether power to arrest was exercised unlawfully or improperly in circumstances of present case - Whether arrest was effected pursuant to mandatory policy of arresting Aboriginal drinkers in a public place - Whether proceedings an abuse of process due to circumstances of arrest - Held that power to stay for abuse of process is to be exercised only on exceptional grounds - Magistrate erred in staying the proceedings - Appeal by prosecution allowed

Criminal Appeals Act 2004 (WA)

Criminal Procedure Act 2004 (WA), s 76, s 90

Liquor Control Act 1988 (WA)

Police Act 1892 (WA), s 43

1 The appellant in the subject appeal, Kirsten Louise Perrin, is a police officer. In that capacity, she initiated a prosecution against Sydney Watson, who is a member of the Parnpajinya Community at Newman in the north of Western Australia. The respondent was said to have committed an offence under the Liquor Licensing Act 1988 (WA) at Newman on 12 January 2006 in that he consumed liquor in a park known as Calcott Park.

2 The presiding magistrate held that she had power to stay proceedings pursuant to s 76 of the Criminal Procedure Act 2004 (WA) and an inherent power to prevent an abuse of process of the court. Pursuant to a finding that there had been an improper arrest, her Honour stayed the proceedings on the grounds that there had been an abuse of process.

3 This appeal, brought by the prosecutor against the learned magistrate's ruling, raises important issues concerning police powers of arrest and the scope of a magistrate's power to stay proceedings.

4 There are in fact three appeals before me. However, it will be convenient to focus on the appeal in respect of charge NE 56/2006 brought against Sydney Watson; that is, the appeal described as SJA 1061 of 2007. The subject appeal arose out of the events mentioned earlier.

5 Section 119(1) of the Liquor Licensing Act provides that a person who consumes liquor in any place or on any premises, including any park or reserve, without the consent of the occupier, commits an offence. At the material time the penalty for infringing the provision was a fine of $500. The maximum fine has now been increased to $2,000 and the short title of the Act has been amended to the Liquor Control Act 1988 (WA).

6 Section 167(2) of the Act provides that at the time, or within 21 days, an authorised officer who has reason to believe that a person has committed an offence may give to that person an infringement notice. A prosecution for the alleged offence can be commenced in a court, unless the alleged offender, within a period of 28 days after the giving of the notice, pays a modified penalty.

7 By s 3 of the Act the term 'authorised officer' includes a member of the police force. By s 168 a prosecution for an offence may be instituted by a member of the police force.

8 Section 172 of the Act concerns averments. Various matters will be taken as proved (in the absence of proof to the contrary) including that a substance referred to in the charge is liquor; that a specified place is a park; that on a specified date the person named in the charge did not have the consent of the person in control of the place.

9 It appears from the materials before me that prior to the events giving rise to the subject charge (against Sydney Watson), the police were troubled by the drinking habits of certain local people at Newman.

10 It was open to the police to issue infringement notices of the kind contemplated by s 167 of the Liquor Licensing Act. However, as appears from a ruling which was handed down by the magistrate at Newman on 27 June 2006 in a matter described as The Police v Henry Brand and Others, there were occasions when the police arrested persons who were later charged with consuming liquor in a park.

11 Her Honour observed in her reasons for decision in the Brand case that each case turns on its own facts and 'there will always be cases involving street drinking when it will be entirely appropriate for the police to exercise their powers of arrest' (ts 8). However, in the Brand case she concluded that the police had deliberately exercised a power of arrest in order to deal with a social problem and that this amounted to an abuse of process. She therefore stayed the prosecution notices directed to Henry Brand and to others pursuant to s 76 of the Criminal Procedure Act.

12 The Brand prosecutions arose out of events which were said to have occurred at Newman in January 2006. It appears from the prosecution notices the subject of the present appeals before me that at about the same time certain events occurred allegedly involving Sydney Watson and another member of the Parnpajinya Community, Cyril Jackson.

13 The subject prosecution notice (in respect of charge NE 56/2006) alleged that Sydney Watson on 12 January 2006 at Newman consumed a substance, namely liquor, in a park, namely Calcott Park, without the consent of the Shire of East Pilbara, having control of that place, contrary to s 119(1) of the Liquor Licensing Act.

14 The prosecution notice was issued by the appellant, Senior Constable Perrin, on 13 January 2006, being the day after the alleged offence.

15 The prosecution in question was brought on for hearing before the learned magistrate on 21 February 2007, being some months after her Honour's ruling in the Brand matter.

16 I understand that at the hearing of the matter the prosecution case against Sydney Watson was presented by a police officer. The accused was represented by counsel.

17 I must now turn to the evidence presented by the prosecution. The first witness was an employee of the municipality who confirmed that the area in question was controlled by his employer. No permission had been given for drinking on the land in question.

18 Sergeant Geoffrey Stewart said that on Thursday, 12 January 2006 he was in a vehicle patrolling near Calcott Park and saw a group sitting drinking from some cans. He recognised the respondent, Sydney Watson; he saw Mr Watson drinking from an Emu Export beer can; he recorded the incident on video; he contacted Senior Constable Perrin back at the station with an instruction for the respondent to be arrested. The video footage was viewed and received in evidence as part of the prosecution case.

19 Under cross-examination Sergeant Stewart conceded that no complaint had been received from the Shire and that Mr Watson and others in the group appeared to be behaving themselves. The accused man was taken to the police station after his arrest and processed through the lockup. He spent approximately three hours in custody before being released.

20 Sergeant Stewart said that the accused man and his companions were not warned about their behaviour on the day in question. The matter was dealt with by way of arrest in order to prevent the continuation of an offence. This was because warnings and infringement notices in the past had not been heeded. The arrests reduced the risk of the accused persons becoming victims or perpetrators of an offence. They were close to a shopping centre and public swimming pool, in a park frequented by kids and adults, 'so its not the best place to conduct that type of behaviour'.

21 Sergeant Stewart was pressed by the cross-examiner as to whether he had decided on the arrest of Mr Watson 'for his own good' but he affirmed on several occasions that 'I arrested him to prevent a continuation of the offence'. Sergeant Stewart denied emphatically that by seeking to arrest members of the group he was seeking to punish them twice. He acknowledged under re-examination that the outcome of arresting people such as Mr Watson had been 'a reduction in the frequency of that type of offence' and 'there had been a considerable improvement in that area'.

22 Evidence was also led from Constable Kirsten Perrin. She confirmed that she attended the park. She arrested the accused on the direction of Sergeant Stewart. She noticed that the accused had an open can of Emu beer. She said 'that what appeared to be beer drained out of the can and also smelt like beer'. There were several other people arrested at the same time as Mr Watson. Her evidence was that she had given Mr Watson a caution in the past, and that she had taken him back to Parnpajinya Community, but had not had any dealings with him since that date.

23 Police Officer Perrin conceded that apart from apparently committing the offence of park drinking, the members of the group, including the accused, were otherwise behaving themselves. The members of the group who were arrested may have spent four hours or less in the lockup. She was aware that the offence of drinking in a park did not, of itself, attract a term of imprisonment.

24 Sydney Watson did not give evidence at the hearing. At the conclusion of the hearing on 21 February 2007 there was a debate about certain legal issues which led to the hearing being adjourned so that the respective parties could finalise their closing submissions. These submissions were finally presented at a further hearing some months later on 23 May 2007. The learned Magistrate handed down her reasons for decision in respect of the Watson matter on 4 July 2007.

25 In the course of her reasons for decision her Honour summarised the evidence that had been presented. Having done so, she proceeded to make these observations:

Reference was made in the evidence of Sergeant Stewart to him being in company with Michael Starling. I should predicate my decision by stating that I refer to my decision in the case of Henry Brand and Others v Police. As is stated in the statement of material facts in relation to these offences and it was in the Henry Brand and others case, it is clear that the police are taking a proactive approach to the problem of park drinking and street drinking in Newman. They are actively conducting patrols, are arresting alleged offenders and processing them through the lock-up. Michael Starling is known to the court as the ranger and coordinator of emergency services in Newman.

The evidence of Sergeant Stewart is that a decision has been made that the issuing of infringement notices and fines has not had an impact on the situation. Essentially, it can be seen that the police in Newman did not consider that the fines were sufficient deterrence and decided to firm up the process by arresting anyone caught infringing this legislation and to arrest them and process them through the lock-up.

This is not a situation where an individual officer has made an individual determination of their discretion to arrest. It is a situation where there is a directive for mandatory arrest for this offence, irrespective of the circumstances of the offence or any other factors which would be germane to the exercise of that discretion to arrest. This is no question that police are vested with powers of arrest and that each individual officer has a discretion as to whether to exercise that power in the particular circumstances that he or she was confronted with.

In light of the apparent policy decision made by the officer in charge, the accused were arrested without consideration of any other way in which the matter could have been adequately disposed of.

26 Her Honour went on to make some further observations about the evidence and the nature of the social situation in Newman. She then said that she was pausing 'to repeat my comments in the Henry Brand decision and I adopt the remarks that I made that I am conscious of the serious social problem that the misuse of alcohol presents to the community and to those indigenous who have appeared before me in court'.

27 Her Honour then referred to the fact that each of the accused had been in the lockup for a unknown period of time and had suffered a penalty that would not and could not be imposed by a court of law. In her view, the process that had been followed appeared to have been aimed at addressing some social issues but it had 'a distinctly punitive element to it'. It was her view that the community would not and should not tolerate the police exercising powers of arrest without valid reason. She then said:

Again, I reiterate that this is not an instance of an individual officer exercising his individual discretion but it is a case of a policy decision to mandatory arrest those accused of this offence.

28 Her Honour went on to say that in relation to the circumstances before her there was no evidence that the police officers could not have issued a summons to each of the individuals in question who were known to the police. She said further that:

There was no real explanation advanced why powers of arrest were activated rather than this police decision to mandatory arrest those accused of committing the offence of park drinking. To put it another way, the police have formed the view that a fine is not a sufficient penalty or a specific or a general deterrence for this offence.

29 Her Honour went on to deal with the power to stay proceedings and observed (at [25]):

A criminal court has always had inherent power to make any order to prevent a abuse of its process; this is now encapsulated in section 76 of the Criminal Procedure Act which does not, in my view, subsume the power at common law in any event.

30 Having reviewed a number of decided cases bearing upon the exercise of the power to stay, she then arrived at her final conclusion in this way:

Obviously, as it flows from my reasons, this is a policy decision to compel the mandatory arresting of those alleged to be guilty of park drinking. It's not a situation where an individual officer has exercised his individual discretion. For the reasons that I have articulated I am satisfied that the proceedings constitute an abuse of process, both pursuant to section 76 of the Criminal Procedure Act and as part of the inherent discretion that a court has in any event to ensure that there is no abuse of its process.

For those reasons, the defence application succeeds under section 76 and there will be a stay of the prosecution. According to the legislation, the prosecution needs to be stayed for such period until the appeal period has expired and any appeal against the State order is concluded.

31 By an appeal notice dated 1 August 2007 the appellant sought leave to appeal against the decision made by the learned magistrate pursuant to the Criminal Appeals Act 2004 (WA). The grounds of appeal were that the learned magistrate erred in law in permanently staying the prosecution of the subject prosecution notice.

32 Leave to appeal was subsequently obtained pursuant to an order made by McKechnie J on 6 August 2007.

33 I note in passing that at the hearing before me I approved an amendment to the grounds of appeal so that in its final form the ground of appeal is that 'the learned magistrate erred in fact and in law in permanently staying the subject prosecution'.

34 In order to complete the narrative I should also mention that when the matter was first brought on for hearing before me on 22 October 2007 a difficulty arose concerning a transcript of the hearing before the learned magistrate. After a considerable period of delay, and after what seems to have been considerable difficulty in locating the required transcript, I was provided with a transcript of the hearing on 21 February 2007 (albeit dated erroneously 19 September 2007).

35 The consolidated Appeal Book contains transcripts of the further hearings on 23 May 2007 (when closing submissions were made) and 4 July 2007 (when the magistrate handed down her reasons for decision). The Appeal Book also contains a transcript of the magistrate's reasons for decision in the previously decided Brand case.

36 It will now be useful to look at various statutory provisions and legal principles bearing upon the issue raised by the appeal; that is, whether the learned magistrate erred in staying the prosecution. Her Honour purported to do so pursuant to both inherent powers of the court and s 76 of the Criminal Procedure Act upon the basis that the common law power was not displaced by or subsumed within the power afforded to the court by the statutory provision.

37 In Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65 McKechnie J provided a convenient summary at [34] - [44] of the context within which the issues raised by the present appeal must be considered.

38 His Honour observed that the Supreme Court has always had an inherent power to regulate its own proceedings so as to prevent its processes being abused: Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334. This power includes a power to stay proceedings on an indictment permanently, or temporarily, as the circumstances may dictate. The inherent power was implicitly recognised by parliament under repeal provisions of the Criminal Code (WA) which granted the prosecution a right of appeal against an order staying an indictment.

39 His Honour noted that the power is now encompassed in s 90 of the Criminal Procedure Act 2004 (WA) which invests the court with power to permanently stay an indictment if it is in the interests of justice to do so. In such a case the court has a duty to stay the indictment. There is no practical difference between the exercise of a duty and the exercise of a discretion in these circumstances. There is an evidential burden on an applicant seeking the exercise of the power because in the normal course an indictment will proceed to trial.

40 His Honour went on to observe that the power given to superior courts under s 90 of the Criminal Procedure Act is wider than the power given to the Magistrates Court under s 76 of the Act. The latter power is limited to stay for abuse of process. More particularly, s 76(1) provides that a court may at any time order that the prosecution of a charge be stayed permanently, if it is satisfied that the charge is an abuse of the process of the court. By s 76(2) on making such an order the court may discharge the accused from the charge and may make any orders it thinks fit to ensure the accused and any witness are amenable to justice until the time for appealing against the stay order has expired.

41 It emerges also from McKechnie J's observations that in deciding whether the interests of justice require a stay of an indictment a judge should be careful not to stray beyond a proper judicial role. The prosecutorial discretion involved in the institution and continuation of legal proceedings is a wholly executive function. The division is made plain in Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514. Put shortly, the role of the judge is confined to the forensic process. The judge controls neither the police nor the prosecuting authority: R v Sang [1979] UKHL 3; [1980] AC 402 at 454.

42 There are good reasons for ensuring that the functions of judges and prosecutors are not blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are brought with his consent or approval: Director of Public Prosecutions v Humphrys [1977] AC 1 at 26.

43 Further, the division ensures that the executive branch must answer politically for the decisions they make - not only decisions to prosecute in particular cases but decisions relating to the commitment of resources to the detection, investigation and prosecution of crime generally. They are decisions which courts are ill-equipped to make and, so far as they relate to the commitment of resources, powerless to enforce: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 391.

44 Various decisions of the High Court provide guidance as to what is meant by an abuse of process.

45 The decided cases suggest that if a prosecutor institutes proceedings for a purpose alien to the purpose which the proceedings are outwardly designed to serve, the proceedings will be an abuse of process whether or not they are well founded in fact and law: Walton v Gardiner (1992) 177 CLR 378 per Brennan J at 410. The testimony of a complainant or prosecution witness as to his intention is not conclusive. An improper act may, in appropriate circumstances, afford evidence of improper purpose and abuse of process: Williams v Spautz [1992] HCA 34; (1991) 174 CLR 509 at 527 and 532.

46 In Williams v Spautz Mason CJ, Dawson, Toohey and McHugh JJ at 520 dealt also with the rationale behind the concept. They said that a court is duty bound to protect itself against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that, unless the court protects its abilities so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.

47 Brennan J observed in Jago v District Court of New South Wales at 47 that an abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process.

48 His Honour went on to say that although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose. However, it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness.

49 It is apparent from his Honour's observations that the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome. However, the responsibility is not necessarily discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility can be discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

50 In Walton v Gardner at 392 Mason CJ, Deane and Dawson JJ observed that the inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court may be converted into instruments of injustice or unfairness. Thus, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Proceedings will constitute an abuse of process, if the court is, in all the circumstances of the case, a clearly inappropriate forum or if it would be unjustifiably vexatious and oppressive to litigate anew a case which has already been disposed of.

51 Their Honours observed at 396 that the question of whether proceedings should be stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations such as the requirements of fairness to the accused, the legitimate public interest in the disposition of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

52 Implicit in these observations is the notion that if permanent stay orders become commonplace, so that courts are frequently declining to exercise their jurisdiction, it would not be long before courts would forfeit public confidence. Indeed, Brennan J observed at 415 that to admit a power in the court to decline to exercise its jurisdiction in a case instituted on reasonable grounds for a proper purpose is to assert a power to elevate abstract notions of unfairness above the law itself.

53 These and other cases suggest that circumstances in the criminal context which would give rise to the exercise of the power to grant a stay on the basis that the prosecution is brought for an improper purpose or is otherwise oppressive will include where the prosecution destroyed evidence: Heinze v Burnley (1992) 57 SASR 452; failure to give sufficient particulars of the offence: S v The Queen [1989] HCA 66; (1989) 168 CLR 266; where an indigent accused is unrepresented through no fault of his or her own: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; in an extreme case, where pretrial publicity is such that there cannot be a fair trial: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 623.

54 It emerges also that the power to stay extends to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. That might be so in a case where the moving party can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of securing a collateral advantage or extorting a pecuniary benefit from the defendant: see Williams v Spautz at 522.

55 Nonetheless, it appears from observations made by Wilson J in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111 that the inherent power of a superior court to order a stay should be used only in the most exceptional circumstances, and where there is a fundamental defect which goes to the root of the trial which is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfairness. Powers at common law to ensure fairness include the discretion to refuse to admit evidence improperly or illegally obtained by the police: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 37.

56 The decided cases establish also that the exercise of the power to grant a stay of proceedings must be for the purpose of prevention of the abuse and cannot be used merely as a punishment for some inappropriate conduct by prosecution authorities: Rona v District Court of South Australia [1995] SASC 4922; (1995) 63 SASR 223 at 229, cited with approval in Visser v Hodgetts (2002) 131 A Crim R 553 at 560. There is no power to stay proceedings simply as a sanction or punishment.

57 The latter cases could be regarded as a corollary to the important precept mentioned earlier that courts should be careful not to stray beyond a proper judicial role in a manner which might be regarded as an interference with the discrete executive function of instituting and continuing legal proceedings. This precept resonates with the observations made by Brennan J in Jago's case that unfairness amounting to abuse of process may not be found to exist in circumstances where the unfairness has been occasioned by circumstances outside the court's control. This brings me to the decision of Smart AJ in Director of Public Prosecutions v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151.

58 In the Carr case the respondent was approached by police in regard to a minor incident. Being intoxicated, the respondent swore at the police and was then arrested in the course of a struggle. He was charged with resisting, assaulting and intimidating police. A magistrate held that the evidence relating to these charges was obtained in consequence of an improper act, namely, the arrest of the respondent for offensive language in circumstances where a summons was more appropriate as the offence was minor and there was no question as to the identity and usual place of residence of the respondent. The magistrate referred to decided cases to the effect that for the great majority of people, arrest is equivalent to an additional penalty and should not be used where the issue of a summons will suffice.

59 In dealing with the DPP's application for orders quashing the order for dismissal of the charge, Smart AJ observed that the Supreme Court of New South Wales in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear.

60 His Honour clearly gave weight to this view in dismissing various grounds of appeal and in holding that it was open to the magistrate to find impropriety in the arrest. His Honour was also of the view that it was open to the magistrate in assessing impropriety to rely upon his own experience and research. However, it was held in the end that the magistrate was obliged to alert the parties to material of that kind and give them an opportunity to deal with it. It followed that the prosecution was denied natural justice and the appropriate order on appeal was to quash the magistrate's decision and require that the matter be remitted to the magistrate to be dealt with according to law and conformably with the reasons given by the appeal court.

61 It is clear from the decided cases that a superior court has an inherent jurisdiction to stay proceedings for abuse of process. This flows from the fact that such a court is a court of unlimited jurisdiction, with responsibility for the administration of justice.

62 The same cannot necessarily be said of the Magistrates Court. Courts of Petty Sessions in Western Australia were held to possess the power to stay criminal proceedings, which power was implied from their power to try summary offences under the Justices Act 1902 (WA). The implication of the power to stay proceedings was necessary to enable the court to prevent an abuse of its own procedure: King-Brooks v Roberts (1991) 5 WAR 500.

63 However, following the constitution of the Magistrates Court pursuant to the Magistrates Court Act 2004 (WA), and the vesting of an express power to stay for abuse of process in courts of summary jurisdiction by s 76 of the Criminal Procedure Act, it is questionable whether the jurisdiction of the Magistrates Court to try summary offences should be construed as containing also, by implication, an inherent power to order a permanent stay of criminal proceedings for abuse of process corresponding in its content to the express power contained in s 76 of the Criminal Procedure Act.

64 In Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 the High Court was required to address the effect of s 41(6) of the Justices Act 1902 (NSW) which provided that a magistrate handling committal proceedings was obliged to commit the defendant for trial unless he was of the opinion that a jury would not be likely to convict the defendant of an indictable offence.

65 The High Court held that this provision left no room for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Hence a magistrate had no power to order a stay of committal proceedings as an abuse of process. However, it is important to understand, as appears from the reasoning of Dawson J, that the Grassby case concerned committal proceedings being conducted in the exercise of an executive or ministerial function. This left little room for the implication of a discretionary power to terminate the proceedings in a manner other than that provided.

66 It is apparent from the reasoning of Dawson J at 16 that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. A grant of power to a court of limited jurisdiction carries with it everything necessary for its exercise, and implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court.

67 Nonetheless, the reasoning of Dawson J suggests that a Magistrates Court does not possess an inherent power of the same kind as a court of unlimited jurisdiction. Thus, it will be difficult to assume that a Magistrates Court has implied powers corresponding to the inherent powers of a superior court in circumstances where a statute controlling the functions of the court of summary jurisdiction, such as the Criminal Procedure Act, makes express provision for a power of the kind which is said to exist by implication (being in this case the power to order a permanent stay for abuse of process).

68 Having regard to the reasoning in Grassby's case, I conclude, contrary to the view expressed by the learned magistrate in the present case, that the magistrate did not have an inherent jurisdiction to order a stay of the proceedings for abuse of process. The power to make such an order is to be found exclusively in s 76 of the Criminal Procedure Act. However, in the circumstances of the present case, little turns upon such a conclusion because the scope of the statutory power must inevitably be determined by reference to the common law principles emerging from the decided cases as to what constitutes an abuse of process.

69 I must now digress briefly to look at certain cases relied upon by counsel for the respondent concerning extradition. The reasoning in these cases was said to support the learned magistrate's ruling in the present case.

70 The appellant argued that the matter complained of in the present case, namely, improper usage of a power to arrest, could not be characterised as an abuse of process as it was occasioned by circumstances outside the court's control. A number of cases concerning extradition were therefore put to me by counsel for the respondent which were said to establish that a court could intervene to prevent an alleged abuse of process in circumstances where officials had deliberately engaged in unlawful or improper conduct before the proceedings in question were commenced. Unlawful or improper acts or omissions, it was said, could taint the subsequent proceedings: Winkler v Director of Public Prosecutions (1990) 94 ALR 361 at 377.

71 For example, in Levinge v Director of Custodial Services (1987) 9 NSWLR 546 Kirby P and McHugh JA accepted (McLelland AJA expressed no opinion) that the Supreme Court of New South Wales has jurisdiction to prevent an abuse of its process by staying criminal proceedings where, in procuring an alleged offender to be brought into New South Wales to answer the criminal charges, the prosecuting authorities have 'knowingly circumvented', or connived in the knowing circumvention of, an applicable extradition treaty: see also R v Hartley [1978] 2 NZLR 199.

72 However, the decided cases concerning extradition suggest that the circumstances must be so extreme that the court being requested to stay the proceedings could not tolerate or be part of the process in question. Thus, in Oates v Attorney-General for the Commonwealth of Australia [2001] FCA 84 it was held that there was no evidence of bad faith on the part of the respondent Attorney General, abuse of process or any conduct misleading the Polish authorities which would justify a stay. Lindgren J observed at [34] that there was simply no ground for intervention to be found in the principles addressed in Levinge's case.

73 In Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 a majority of the High Court held that there had been no abuse of process in the extradition and subsequent trial of the accused.

74 Kirby J observed at [136] that, whatever the prerequisites to the exercise of the power to stay proceedings for abuse of process, it is clearly established by the cases that it is not available to cure some 'venial irregularity'. Thus, where a technical breach of extradition law and procedure is later found to have occurred, in circumstances where the relevant officials were found to have held the affirmative belief that they were acting appropriately, a stay would be rightly refused. At the very least the departure complained of must be very serious, such that, in the circumstances, for the court to continue with the proceedings would offend the very integrity and functions of the court as such.

75 Truong and the other cases suggest that the extradition cases are in a special category, and cannot be easily applied to a case of the present kind. Further, and in any event, these cases indicate that relief by way of a stay of proceedings will only be afforded where there has been a serious and wilful defiance of the law by the police or prosecuting authorities.

76 Let me now return to the circumstances of the present case.

77 It was not seriously disputed at the hearing before me that at the material time the police officers dealing with the matter had a power to arrest. Section 43 of the Police Act 1892 (WA) provided as at 12 January 2006 that any officer of the police force, without any warrant other than the Police Act, at any hour of the day or night may apprehend any person whom he shall have just cause to suspect of having committed or being about to commit any offence.

78 I note in passing that the provision in question has now been repealed. The power to arrest without a warrant for an offence that is not a serious offence is to be found in s 128(3) of the Criminal Investigation Act 2006 (WA), being an Act that came into force on 1 July 2007. By that provision a police officer may arrest a person if the officer reasonably suspects that the person has committed, is committing or is just about to commit an offence, and that if the person is not arrested various contingencies may occur including that it will not be possible to verify the person's name and other personal details, or the person will continue or repeat the offence, or the person will endanger another person's safety or property. It was put to me in the course of argument in the present case that the list of contingencies reflects the police guidelines that were in force or generally acted upon in early 2006.

79 It emerges from the decided cases that police officers are expected to be circumspect in exercising powers of arrest. It was said in Carr's case that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. I note in passing that the recently enacted provision concerning arrest for less than serious offences does not appear to limit the power to arrest to that extent.

80 In Donaldson v Broomby (1982) 160 FLR 124 at 126 Deane J made these observations:

Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.

81 It is apparent from the learned magistrate's reasons for decision that in her view the police arrested Mr Watson upon the basis that a fine was not a sufficient penalty for park drinking. Further, the arresting officer did not make an individual determination to arrest in the light of the specific circumstances but did so pursuant to a previously determined policy of mandatory arrest. The effect of the arrest was to impose an additional penalty upon the accused.

82 In the present case it is questionable whether the conclusion drawn by the learned magistrate as to the reason for arrest was warranted by the evidence before her in the Watson case. There are indications that her Honour was influenced to some extent by the evidence she had heard and the conclusion she had arrived at in the previously decided Brand case. She gave little, if any, weight to the evidence of Sergeant Stewart that the arrest of Mr Watson had been effected in order to prevent the continuation of an offence; that is, having regard to the circumstances of the particular case. On the other hand, her Honour appears to accept in her reasons for decision that an offence had been committed and was likely to be repeated.

83 Police Officer Perrin gave evidence that she had given Mr Watson a caution in the past but had not had any dealings with him since that occasion. Mr Watson was said to have been a member of the Parnpajinya Community but it is by no means clear that he could be regarded (within the formulation in Carr's case) as an offender whose address was known and there was no risk of him departing.

84 Moreover, having regard to the averments available to the prosecution, the evidence before the magistrate appeared to be sufficient to support a finding that an offence had been committed, and that a further offence might be committed if no action was taken by the police.

85 Although the learned magistrate did not make a finding to this effect, the charge was clearly supported by evidence sufficient not only to establish a prima facie case but also to support a finding that an offence had been committed. There was no direct evidence of any improper purpose in the bringing of the charge or any admission by prosecution witnesses to that effect. In the absence of evidence to the contrary, a finding was clearly open that a charge was brought against Mr Watson as a means of enforcing compliance with a law concerning drinking in public places.

86 What the learned magistrate perceived to be an abuse of process derived essentially and solely from the fact that the respondent had been arrested, rather than being brought before the court by way of a summons; or, alternatively, being dealt with by way of an infringement notice. In other words, the matters relied upon by the magistrate as pointing to the existence of an 'abuse of process' were referable entirely to events preceding the commencement of the prosecution and which had no bearing on the prosecution in terms of the gathering of evidence or otherwise. The reasonableness of the decision made by the police officers to exercise the discretion to arrest the respondent does not appear to have had a discernible effect upon the capacity of the accused person to defend the charge brought against him.

87 It emerged at the hearing before me, after examining the evidence of Police Officers Stewart and Perrin, that there was little to justify the magistrate's finding that the police exercised their powers of arrest pursuant to a predetermined policy or with a view to punishing the persons arrested. Sergeant Stewart gave evidence to the effect that the decision to arrest the accused was to prevent the continuation of the offence or the commission of any further offence by Mr Watson. He agreed that the outcome of arresting people such as Mr Watson had been to reduce the frequency of the offence, but that does not necessarily establish the existence of a policy or of a failure to give consideration to the circumstances of the particular case.

88 In these circumstances, it is questionable whether there was any or any sufficient basis in the evidence for holding that the prosecutions had been commenced with a collateral or improper purpose of endeavouring to impose an additional penalty upon the offender.

89 Further, and in any event, having regard to the reasoning of Brennan J in Jago's case, it can be argued that the power to stay for abuse of process should not be exercised where the unfairness complained of has been occasioned by circumstances outside the court's control. The learned magistrate's reasons for decision did not address this issue and did not suggest that the way in which the respondent was arrested affected the evidence or had any bearing on the fairness of the trial.

90 Moreover, as appears from the decided cases, there was a legitimate public interest in the disposition of the charges through the trial process. It might be said that in failing to give sufficient weight to this factor her Honour overlooked a relevant consideration in determining whether to grant a stay.

91 Let me now draw together my various observations.

92 As at 12 January 2006 the two police officers at the scene in Calcott Park, Sergeant Stewart and Constable Perrin, had clear evidence before them that an offence under the Liquor Licensing Act had been committed by Mr Watson. The offender was known to them both. He was seen to be drinking from an open can of Emu Export beer, and he was with others who were drinking from cans of the same kind. It was not disputed then or at any later stage that this was being done without consent in a public place.

93 Each police officer had broad powers under s 43(1) of the Police Act to arrest without warrant any person whom he or she had just cause to suspect of having committed or being about to commit any offence. Police Officer Perrin exercised this power having regard to information received from her colleague and upon the basis of her own observation that Mr Watson was drinking from an Emu can. There was no direct evidence or admission from which it could be inferred that the power of arrest was exercised pursuant to some gratuitous or malevolent purpose. Suggestions by the cross-examiner that the police officers were using the arrest as a form of punishment were flatly denied, and the denial was not refuted by countervailing evidence. The evidence as a whole is consistent with Sergeant Stewart's assertion that the arrest was effected to prevent a continuation of the offence; that is, to prevent the repetition of an offence that had been committed.

94 In my view, it follows from this that on the uncontradicted evidence brought before the magistrate at the hearing the arrest was lawful.

95 The learned magistrate did not make a specific finding that the arrest was unlawful. However, the tenor of her reasoning might be said to point towards that conclusion. Having regard to evidence she had received in both the Brand and Watson cases, she seems to have inferred that the purpose underlying the arrest was, if not malevolent, at least an extraneous or improper purpose, namely, to implement a policy of mandatory arrest as a form of punishment, such that the police officers failed to give proper consideration to the circumstances of the particular case. Support for this conclusion was found in the notion that the police officers had failed to give proper consideration to dealing with the offence by the issue of a summons or an infringement notice.

96 Alternatively, in the absence of a specific finding that the arrest was unlawful, the magistrate's reasoning is open to the interpretation, having regard to cases such as Carr, that even if, in strict analysis, the arrest was lawful, it was improper, because it was inappropriate.

97 To my mind, the evidence before the magistrate in the Watson case was not sufficient for inferences to be drawn of the kind I have just described. Her Honour had before her clear and uncontradicted evidence that an offence had been committed by Mr Watson. He was then arrested to prevent a continuation of the offence committed by him. No admissions were made by the police witnesses that they were seeking to impose an extra punishment or that a policy of mandatory arrest existed or was being carried into effect. An explanation was provided as to why the other avenues of enforcement had not been pursued. The most that could be extracted from their evidence was that as a consequence of various arrests there was less offending in the area, but this, of itself, does not establish the existence of a policy that overrode consideration of the circumstances of the particular case. It appears that the learned magistrate may have given undue weight to evidence that came before her in the Brand case, in a manner that was not permissible, for each case must be judged on its own merits.

98 It follows from earlier discussion that, in my view, the learned magistrate did not have an inherent or implied power to stay the proceedings permanently for abuse of process, but she did have such a power pursuant to s 76 of the Criminal Procedure Act in circumstances where the subject proceedings were brought for an improper purpose. In the present case, the improper purpose was said to be the implementation of a policy of mandatory arrest which rendered the initial arrest unlawful or improper and thereby tainted the subsequent proceedings.

99 I am of the view that, on the evidence before her, the magistrate erred in concluding that the arrest was unlawful or improper. It follows that her Honour must also have erred in fact and in law in staying the subject proceedings, for, on this view of the matter, in the absence of any unlawful conduct or impropriety at any stage, there could be no finding that there was an abuse of process.

100 However, for the sake of completeness, I must go further. Even if it were open to the magistrate to infer, as she did, that the discretion to arrest was exercised pursuant to irrelevant considerations such as a policy of mandatory arrest, and thus unlawfully, or at least improperly, exercised, I am of the view that the magistrate erred in staying the proceedings for abuse of process.

101 It is clear from the decided cases that law enforcement and the decision to prosecute is an executive function. The court controls neither the police nor the prosecuting authority. The power to stay should only be used in the most exceptional circumstances and cannot be used merely as a sanction for some inappropriate conduct by prosecution authorities. Moreover, unfairness amounting to abuse of process may not be found to exist in circumstances where the unfairness complained of has been occasioned by circumstances outside the court's control. Having regard to these restrictions, a stay will not be ordered where it is possible to address any element of unfairness by rulings on evidence or by controlling the procedures of the trial.

102 In the present case, I accept, having regard to Williams v Spautz, that the pursuit by the prosecution of a strong case on the evidence is not enough, of itself, to establish that the proceedings were not tainted by an improper purpose. I accept also that the testimony of a prosecution witness as to his intention is not conclusive; an improper act can sometimes afford evidence of an improper purpose. However, the restrictions I mentioned a moment ago indicate that an applicant for a stay will have difficulty in establishing that an improper arrest amounts to an abuse of process, because this is a matter occasioned by circumstances outside the court's control.

103 It is possible, of course, to envisage an extreme case in which the power to arrest is used oppressively (perhaps with a view to obtaining evidence or intimidating a suspect). In such a case the improper act or omission may have such a profound and continuing effect upon the conduct of the proceedings that an abuse of process sufficient to justify a stay can be held to exist, provided that the unfairness complained of cannot be cured by the exclusion of evidence or other ruling.

104 However, for the reasons given previously, I am not persuaded that this is such a case. I proceed from the premise that each case must be dealt with on its own merits and having regard to the responsibility of a court to exercise its jurisdiction to hear and determine issues. The arrest complained of, even if improper, was a matter that lay outside the court's control. In the absence of any wilful defiance of the law or discernible effect upon the evidence or the conduct of the proceedings, it was not a matter that could be said to have tainted the subsequent proceedings.

105 In summary, then, I consider that, on the evidence before her, the learned magistrate erred in fact and in law in holding that the power to arrest was exercised unlawfully or improperly in the circumstances of the present case. In the absence of any other allegation of unfairness it was not open to the magistrate to stay the proceedings for abuse of process.

106 Further, and in any event, if the power of arrest was exercised unlawfully or improperly for the reasons given by the magistrate, the unfairness complained of was occasioned by circumstances which lay outside the court's control and were not of sufficient gravity or continuing effect upon the conduct of the proceedings to justify the grant of a stay. This conclusion is supported by the precept that a judicial officer is confined to the forensic process, controlling neither the police nor the prosecuting authority.

107 It will be apparent from earlier discussion that it would be wrong to assume that such a conclusion may encourage high-handed conduct by police and prosecuting authorities. As I have indicated, they are performing executive functions and remain subject to critique by the political process. Moreover, where powers of detention or arrest are exceeded remedies are available by way of the prerogative writs or claims for false imprisonment. The presence of these remedies and a proper understanding of the division between executive and judicial functions weighs against any expansion of the power to stay.

108 It emerges from the decided cases that a court must be circumspect in declining to exercise its jurisdiction in respect of proceedings instituted on reasonable grounds for the purpose of determining whether an offence has been committed. The power to stay for abuse of process is to be exercised only on exceptional grounds, and where there is no other effective means of preventing or curing the unfairness complained of.

109 The learned magistrate's summary of the evidence, considered in conjunction with the averments allowed for by the provisions of the Liquor Licensing Act mentioned earlier, suggests that there was sufficient evidence before the court to warrant a finding that the charges had been proved beyond reasonable doubt.

110 However, in the absence of a specific finding by the learned magistrate that she would have found the charges proved, it appears that the appropriate course is to uphold the appeal, and remit the prosecution to the learned magistrate for further consideration according to law, and having regard to these reasons for decision.

111 This brings me finally to the related appeals. It seems from the transcript that evidence was received only in relation to charge NE 56/2006 against Sydney Watson. The other charges were then adjourned to the intent that evidence would be heard in relation to them at a later stage. However, possibly with the agreement of counsel, it seems that on 4 July 2007 the magistrate handed down reasons for decision which purported to relate to all the matters concerning Mr Watson and Mr Jackson upon the basis that, first, the evidence in the Watson matter could be treated as applying to all charges, and, second, her Honour's ruling in regard to the power to stay, being essentially a ruling upon a legal issue, was applicable to each of the charges.

112 I note in passing that appeal SJA 1059 of 2007 concerning Mr Jackson related to two matters being NE 67/2007 and NE 137/2006 arising out of events at Hilditch Park on 13 January 2006 and events at Calcott Park on 9 January 2006 respectively. Appeal SJA 1060 of 2007 and appeal SJA 1061 of 2007 concerning Mr Watson arose out of events at North Newman Reserve on 10 February 2006 (NE 148/2006) and at Calcott Park on 12 January 2006 (NE 56/2006) respectively, the latter being the events reviewed at length in this judgment.

113 At the hearing before me both counsel were of the view that there were sufficient materials before me to deal with all three of the appeals because the key to resolution of each appeal was to be found in the resolution of the legal issue. If a finding were made (as it has been made) that the power to stay the proceedings in the Watson case was wrongly exercised, then the same conclusion will apply to each of the other cases. I will proceed accordingly.

114 Appeal SJA 1061 of 2007; in respect of the charge brought against Sydney Watson (NE 56/2006) will be allowed on the grounds set out in the appeal notice. The decision made by the learned magistrate to stay the subject proceedings will be quashed upon the basis that the matter is to be remitted to the learned magistrate to be determined in accordance with law. Orders in these terms will be made in respect of each of the other appeals, namely, SJA 1059/2007 and SJA 1060/07. I will hear from the parties as to whether any further orders or directions are required.