Plaintiff v First Defendant

Jeff Cranston and Associates, town agent for Diana Velevski Tax Lawyer

2 On 10 October 2019, a member of Victoria Police, Detective Senior Constable ('DSC') Poynton, attended before a magistrate at the Ringwood Magistrates' Court seeking the issue of a warrant to arrest the plaintiff under s 12 of the Criminal Procedure Act 2009 ('CPA'). The magistrate granted that application and signed a combined charge-sheet and warrant to arrest.

3 The alleged offences are serious indictable offences, including extortion and intentionally causing serious injury. When the charges were filed, a registrar or magistrate had the discretion to issue a summons to attend court or a warrant to arrest. In this case the power was exercised by a magistrate and he chose to issue a warrant. Pursuant to the warrant, and under the provisions of the Service and Execution of Process Act 1992 (Cth) ('SEPA') the plaintiff was arrested in Perth, brought before a Western Australian magistrate and bailed pending resolution of an application for extradition to Victoria.

4 The plaintiff seeks in this Court to have the warrant set aside and consequential or declaratory relief. He submits that the magistrate who issued the warrant was misled; that it was granted for the sole, and therefore impermissible, reason the plaintiff was resident interstate; was legally unreasonable; and, because the warrant was combined with a charge-sheet, was in an unauthorised form.

5 For the reasons that follow, none of the grounds have been established and the proceeding must be dismissed.

6 The first page of the combined charge-sheet and warrant completed by the magistrate, headed 'charge - sheet and warrant to arrest', is divided into two portions. The top portion identifies a single charge, alleging that the plaintiff at Rowville on 13 September 2019 entered part of a building as a trespasser with intent to assault a person, being an indictable offence under s 77(1) of the Crimes Act 1958 ('Crimes Act'). Four additional charges are set out over the following two pages, each headed 'Continuation of Charges'.

7 The bottom portion of the first page contains a box headed 'Request for issue of a warrant to arrest'. Before providing the document to the magistrate, DSC Poynton inserted the following description of the grounds for the issue of the warrant to arrest:

The accused is permanently residing in Western Australia and wanted for arrest for offences of Aggravated Burglary and Extortion with Intent to Inflict Injury with intention of seeking extradition to Victoria.

8 As prepared by DSC Poynton, the form recited that the magistrate was satisfied by evidence on oath that a warrant should be issued on the following grounds:

'...for other good cause namely: Extradition from Western Australia is being sought'.

9 The reference to 'other good cause' picks up s 12(5)(c) of the CPA, to which I shall return.

10 The magistrate signed the warrant which authorised police officers to arrest the plaintiff and bring him before the court as soon as practicable.

11 On 22 October 2019, the plaintiff made a written request to the magistrate for reasons for his decision to issue the warrant.[1] Following the request, a registrar wrote to DSC Poynton on behalf of the magistrate, seeking a copy of a statement outlining the allegations which the magistrate understood had been read on the application for the warrant. In response to that request, DSC Poynton wrote to the registrar advising that she had given a verbal account to the magistrate regarding her 'intimate knowledge of the investigation' and that she was happy to outline the circumstances of the offence and her investigation to the best of her recollection but would not be able to provide a document to support this.

12 On 14 November 2019, in answer to the request for reasons, a registrar of the Magistrates' Court provided the following response on behalf of the magistrate:

1. I am a duly appointed Magistrate in the State of Victoria

1. On 10 October 2019, I was sitting at Ringwood Magistrates' Court, the Court to which I am currently assigned.
2. On that day, along with my other duties in Court, I was the assigned Duty Magistrate, responsible for the consideration of Chamber matters, which included the consideration of applications by police for search warrants, the review of any property seized under such warrants, and any other matter that needs to be dealt with in Chambers.
3. The above matters are routinely attended to in a private office in the Registry of the Court, and are not audio recorded.
4. On 10 October 2019, I was asked by Court staff to consider the issue of interstate arrest warrants, which they informed me required the attention of a Magistrate. I was informed that whilst a Registrar could and usually did issue warrants for the arrest of an accused person, the fact that these matters related to accused residing interstate, they required my attention.
5. I believe that I satisfied myself that I had the power to so issue the warrants in question, pursuant to ss29 and 57 of the Magistrates' Court Act 1989 (Vic.).
6. I attended the office used for these purposes in the company of a clerk of Courts, and was introduced to D/S/C Joanne Poynton
7. She informed me that she was the Informant in the matter and proceeded to provide me with a narrative of the matters that she said were relevant to the issue of the arrest warrants involving accused Peter Fiore and Dane Corbet
8. Upon hearing the narrative, and I believe viewing still shots taken from the CCTV footage, I formed the view that reasonable grounds existed for the belief that the persons named in the arrest warrants were involved in the alleged offending the subject of the proposed charges.
9. As I had reached that view, I signed and caused to be issued the two charge sheets and warrants to arrest in relation to Peter Fiore and Dane Corbet

13 I note that the reference to the CCTV stills does not appear to have been prompted by the email exchange between the registrar and DSC Poynton as no mention of it is made in that exchange.

14 On 18 November 2019, the magistrate supplemented his reasons, by a further email sent by the registrar, which said:

As is my practice, my recollection is that I had the applicant informant take the oath/affirmation prior to her providing me with the material that was said to support the application for the issue of the arrest warrants as referred to in paragraph 8.

15 In so far as the evidence discloses, the plaintiff did not seek further reasons from the magistrate. No submission was made to me that the reasons provided by the magistrate were inadequate.

16 On 15 October 2019, DSC Poynton swore an affidavit in aid of an application to have the plaintiff extradited from Western Australia to Victoria under the SEPA. Immediately after setting out various formal matters, DSC Poynton commences her affidavit with the words 'I have received information as to certain facts, namely:' and in the 13 paragraphs that follow she sets out the circumstances of the relevant alleged offending.

17 DSC Poynton deposes that she is the informant in relation to the investigation of offences of aggravated burglary and extortion with intent to inflict injury that were committed on 13 September 2019. In relation to the offences she continues:

1. On Friday the 13th of September 2019, four male offenders attended the business premises at 'RTunes' situated at 11/9 Hi Tech Place, Rowville in a black Range Rover. Two of the offenders pushed past the 'Staff Only' designated area and went upstairs and confronted the victim in this matter, Suresh KRISHNAN who recognised one of the males as an associate of his cousin in Perth. The victim knows this male as Dane CORBET. The other male is not known to the victim but has since been identified as Engin GEMCI.
2. CORBET immediately dragged the victim down the stairs, where the other two offenders who have been identified as Nicholas BOCHRINIS and Peter FIORE joined GEMCl and CORBET in assaulting and kicking the victim repeatedly. The victim's business partners were witnesses to the assault-and were told not to intervene.
3. CORBET made demands for the victim to pay an $80,000 drug debt incurred by his cousin. The victim was assaulted further by being punched in the face which split the victim's lip causing his mouth to bleed. The victim was threatened if he did not pay the debt that they would kill him and his family, and burn the business to the ground. All the accused were acting in concert to commit the offences of aggravated burglary, extortion and assault and the victim was told repeatedly that the males were 'bikies'.
4. The victim was seriously injured as a result of the assault and conveyed to hospital. He sustained a deep laceration which extended his mouth and lip that required plastic surgery. The victim also sustained a serious injury to his right eye where the retina has the high possibility that it may detach.
5. Internal and external CCTV cameras capture the assault in its entirety as well as the personalised Victorian registration plates, 'RRGPHY' of the black Range Rover that the offenders arrived in. The vehicle was registered to GEMCI Pty Ltd at a previous residential address of GEMCI.

18 DSC Poynton deposes that two co-accused, Gemci and Bochrinis, had been arrested, charged and remanded in custody until a committal mention on 16 December 2019. DSC Poynton further states that airline records and airport CCTV footage revealed that the plaintiff, together with the fourth co-accused, Corbet, had arrived in Melbourne on 12 September 2019, were collected at the airport by Gemci in the black Range Rover and departed Melbourne for Perth on 14 September 2019.

19 DSC Poynton further deposes that the plaintiff and Corbet both permanently reside in Perth, are both currently on bail for minor matters and are not detained under sentence. She notes that the plaintiff had prior convictions for armed robbery and firearms offences in 1989 and 1988 for which he was sentenced to three years' imprisonment.

20 On 16 October 2019, pursuant to s 82 of SEPA, the plaintiff was arrested in Perth. That day, the plaintiff's solicitor received a copy of the charge-sheet and warrant as well as a document titled 'Statement of Material Facts' which sets out the alleged offending.

21 The statement of material facts refers to the alleged offending on 13 September 2019. The statement does not say that the plaintiff was involved in physically assaulting the victim but does say that the plaintiff, together with the other co-accused, stood with an intimidating presence and that all of the accused were acting in concert to commit the offences of aggravated burglary, extortion and assault. The statement says that each of the accused were intimidating the victim and witnesses and preventing them from getting involved or contacting police.

22 On 17 October 2019, that is the day after the plaintiff's arrest, he was taken before a magistrate in Perth. The Victorian warrant to arrest was produced and an order was sought that the plaintiff be remanded in custody under s 83(14) of SEPA.

23 The plaintiff applied to set aside the warrant on the basis that it was invalid and also applied for bail. The various matters were adjourned to 24 October 2019 for further hearing in the Magistrates' Court in Perth and the plaintiff was admitted to bail. Those matters have not yet been determined.

24 At the hearing on 17 October 2019, the prosecution was represented by an officer of the Western Australian Police force, Sergeant Smith. During the hearing there was some discussion about the plaintiff's role in the alleged assault. The plaintiff's counsel submitted that the plaintiff was alleged to have been acting in concert with other offenders and it was not alleged that the plaintiff had made any threats or engaged in any violence.[2] In response to that submission, Sergeant Smith submitted that the plaintiff was involved in the assault which was caught on CCTV and, according to the information he had contained in an affidavit of a Victorian police officer (presumably DSC Poynton), the plaintiff was physically involved the assault.[3]

25 On 22 October 2019, Sergeant Smith wrote to the plaintiff's solicitor by email advising the plaintiff that DSC Poynton was unable to fly to Perth for the resumed hearing as she was unwell. Sergeant Smith went on to say that Victoria Police was prepared to not oppose any extradition on bail and the prosecution would not oppose the plaintiff being bailed to appear in Victoria on his existing bail conditions. Sergeant Smith added that he had been in contact with Victoria Police who said that they would not oppose bail when the plaintiff appeared in Victoria at the initial filing hearing. In other words, the warrant has now been executed and it is not intended to bring the plaintiff to Victoria in custody.

26 The following day, 23 October 2019, Sergeant Smith sent a further email to the plaintiff's solicitor in which he said:

Also I forgot to mention in my email: I can confirm that in regards to the allegation of [the plaintiff] being involved in the actual assault, that was incorrect. At the time of making the affidavit, that was the belief of DSC Poynton. However, she has confirmed to me that following further evidence he was not involved in the actual assault but it will be alleged that he was standing by keeping people away. I was unaware of that new evidence at the time.

I will be informing the court on Thursday of that.

27 On 1 November 2019, the plaintiff commenced this proceeding, seeking orders to quash the decision to issue the warrant, prohibit any further steps being taken in relation to its execution, declaratory relief and costs.

28 Section 6 of the CPA provides that a criminal proceeding in the Magistrates' Court is commenced in one of three ways. First, by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court. The second way, which is available where the accused is arrested without a warrant and is released on bail, is commenced by filing a charge-sheet containing a charge with a bail justice. The third way is if a summons is issued under s 14 of the CPA by a police officer or authorised public official; the proceeding is commenced when the charge-sheet is signed.

29 Section 6(3) of the CPA provides that a charge-sheet must be in writing, signed by the informant personally and comply with schedule 1. Section 8 authorises the Magistrates' Court to order the amendment of a charge-sheet at any time and s 9 provides that the charge-sheet is not invalid by reason only of a failure to comply with schedule 1.

30 Part 2.3 of the CPA is headed 'Notifying accused of court appearance' and provides for three mechanisms by which an accused is notified: summons or warrant to arrest or a notice to appear. Section 12 is in the following form:

12 Court may issue summons or warrant to arrest

(1) On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of -

(a) a summons to answer to the charge directed to the accused; or

(b) a warrant to arrest in order to compel the attendance of the accused -

unless a notice to appear has been served on the accused under Division 2.

(2) An application under subsection (1)(b) must be made by the informant personally but an application under subsection (1)(a) may be made by the informant or a person on behalf of the informant.

(3) An application under subsection (1) may be made by the applicant in person or by post.

(4) On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue -

(a) a summons to answer to the charge; or

(b) subject to subsection (5), a warrant to arrest.

(5) A registrar of the Magistrates' Court must not issue in the first instance a warrant to arrest unless satisfied by sworn or affirmed evidence, whether oral or by affidavit, that -

(a) it is probable that the accused will not answer a summons; or

(b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or

(c) a warrant is required or authorised by any other Act or for other good cause.

31 Section 12 is directed to the issue of warrant 'in the first instance'. The decision to either issue a warrant or a summons is made at the commencement of the proceeding and, having regard to the importance of liberty, a warrant must not be issued at that stage unless the registrar or magistrate is satisfied as to one of the matters in paragraphs (a) to (c) of s 12(5).

32 In the event that the charged person is issued with a summons he or she will be directed to attend court on a certain day. In the event that he or she fails to do so, the court may issue an arrest warrant.[4]

Magistrates' Court Act

33 Division 3 of part 4 of the Magistrates' Court Act 1989 ('Magistrates' Court Act') deals with warrants generally. Section 57 lists the kinds of warrants that may be issued, including warrants to arrest, which are further addressed in sub-division 2. Section 61 draws a distinction between a warrant to arrest in the first instance and a warrant to arrest other than in the first instance. A warrant to arrest other than in the first instance must include a statement of the reasons for issuing the warrant.[5] The Magistrates' Court Act identifies the persons to whom a warrant to arrest may be directed[6] and the authority conferred by such a warrant.[7]

34 The person to whom a warrant to arrest is directed must cause the person named or described in the warrant when arrested to be bought before a bail justice or the court within a reasonable time to be dealt with according to law or to be released on bail in accordance with the endorsement on the warrant.[8]

35 Section 24 of SEPA provides that an initiating process in a criminal proceeding issued in a State may be served in another State. Part 5 of SEPA deals with the execution of warrants issued under a law of a State. Section 82 provides that a person named in a warrant issued in a State may be apprehended in another state. The person may be apprehended by an officer of the police force of the State in which the person is found and it is not necessary to produce the warrant when the person is apprehended.

36 Section 83 provides the procedure to apply after apprehension and requires that, as soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended.[9] The warrant or a copy of the warrant must be produced to the magistrate if it is available.[10]

37 Section 83 says what is to occur if the warrant is not produced. If, as in this case, the warrant is produced, s 83(8) provides that the magistrate must order that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies; or the person be taken, in such custody or otherwise as a magistrate specifies, to a specified place in the place of issue of the warrant.[11] It is this statutory process, of either directing the person to attend court in another State or remanding the person on custody to be taken to the other State, that is commonly called extradition.

38 The obligations that are imposed on the magistrate under s 83(8) are subject to subsections (10) and (14). Section 83(10) provides that the magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid.

39 Section 83(14) provides that for the purpose of a proceeding under s 83, the magistrate may adjourn the proceeding and remand the person in custody or on bail for the adjournment.

40 The plaintiff contends that the first defendant's decision to issue a first-instance warrant to arrest dated 10 October 2019, purportedly under s 12(5) of the CPA, was vitiated by jurisdictional error or error of law on the face of the record on the following pleaded grounds:

1.1. The decision was induced by a material mis-statement of facts, or by fraud (in the public law sense described in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189), being the incorrect and uncorrected sworn statements of the Second Defendant that:

1.1.1. The Plaintiff physically assaulted a complainant in joining in with others 'assaulting and kicking [the complainant] repeatedly', whereas the Plaintiff did not physically assault the complainant in any way;

1.1.2. The Plaintiff was on bail in Western Australia for 'minor matters', whereas the Plaintiff is on bail for a single indictable count of fraud of $125,000;

1.2. The First Defendant did not form the state of satisfaction contemplated by paragraph 12(5)(c) of the Criminal Procedure Act 2009 (Vic) because it was not formed on a correct understanding of the meaning of 'for other good cause' in that:

1.2.1. The warrant is expressed to be issued solely on the basis of 'other good cause' under paragraph 12(5)(c);

1.2.2. The sole 'ground' recited for the application were that the Plaintiff resides in Western Australia is 'wanted for arrest ... with intention of seeking extradition to Victoria', and;

1.2.3. 'Extradition from Western Australia is being sought' is not itself a sufficient 'good cause' or exposes a misunderstanding of paragraph 12(5)(c);

1.3. The First Defendant took into account the irrelevant consideration that '[e]xtradition from Western Australia is being sought' by the Second Defendant, or[12] failed to take into account the relevant consideration of whether or not the Plaintiff might simply answer a summons in Victoria;

1.4. The First Defendant's decision was arbitrary or capricious, or was disproportionate (in the sense described by French CJ & Gageler J in McCloy v New South Wales [2015] HCA 34; 257 CLR 178 at [3]), 'plainly unjust' or otherwise unreasonable, in authorising the Plaintiff's arrest and involuntary removal from Western Australia to Victoria, in the absence of any evidence from which it could be inferred that the Plaintiff might not answer a summons in Victoria;

1.5. Not pressed.

2. The warrant is otherwise invalid on its face because:

2.1. It does not disclose that a statutory precondition for the issuing of the first-instance arrest warrant under section 12 of the Criminal Procedure Act 2009 (Vic) was fulfilled, namely that the charge-sheet was filed:

2.1.1. Before the arrest warrant was purportedly issued, alternatively;

2.1.2. At all in that the charge-sheet is:

2.1.2.1. Neither signed nor authenticated within the meaning of Regulation 6 of the Magistrates' Court Authentication Rules 2011 (Vic) or at all;

2.1.2.2. Undated as to charge 1;

2.2. The charge-sheet and arrest warrant are incorporated into a single instrument, whereas sections 5, 6, 12 and 13 of the Criminal Procedure Act 2009 (Vic) implicitly require 'stand-alone' instruments, and Rule 11(c) of the Magistrates' Court Criminal Rules 2009 is invalid to the extent that Form 5 at Schedule 1 prescribes a single instrument.[13]

41 The plaintiff submits that the decision to issue the warrant to arrest was induced by a material misstatement of facts, or by fraud,[14] because the magistrate was told that the plaintiff physically assaulted the victim by 'assaulting and kicking [him] repeatedly' and that this was untrue. It was also said that the magistrate was told that the plaintiff was on bail in Western Australia for 'minor matters' when in fact he was on bail for a single indictable count of fraud of $125,000.

42 The plaintiff submits that a warrant is not issued according to law if its evidentiary basis is vitiated by fraud, a lack of good faith or a material misrepresentation, including half-truths.[15] The plaintiff does not contend that an error of fact in what the magistrate was told would be enough to vitiate the warrant.

43 In order to make out this ground, the plaintiff must establish what the magistrate was told by DSC Poynton. As noted, the application was made orally. The magistrate's reasons are brief and do not say whether he was told that the plaintiff was physically engaged in assaulting the victim. The reasons do record that the magistrate was satisfied that there were reasonable grounds for believing that the plaintiff and Corbet were involved in the alleged offending which was the subject of the proposed charges.

44 The charges detailed on the warrant allege, amongst other things, that the plaintiff made demands of the victim, with a threat to destroy property, and intentionally caused serious injury to him. The fact that the charges are formulated in that way does not allow any inference to be drawn as to whether the magistrate was told that the plaintiff physically assaulted the victim or acted in concert with another person who had carried out the physical acts constituting the assault.[16]

45 The plaintiff invites the court to infer that DSC Poynton told the magistrate that the plaintiff was physically involved in the assault on the basis of paragraph three of her affidavit in which she deposed that Bochrinis and the plaintiff 'joined Gemci and Corbet in assaulting and kicking the victim repeatedly', and the email from Sergeant Smith saying that at the time DSC Poynton made the affidavit she believed that the plaintiff was involved in the actual assault.

46 The plaintiff points to the CCTV footage in the possession of investigating police which shows two of the offenders, but not the plaintiff, kicking and striking the victim as demonstrating that DSC Poynton must have known the true position and recklessly withheld it from the magistrate in order to secure the warrant. He also notes that in her affidavit DSC Poynton says that '[i]nternal and external CCTV cameras capture the assault in its entirety'.

47 The plaintiff also submits, relying on Jones v Dunkel,[17] that the inference as to what DSC Poynton told the magistrate ought more readily be drawn given that she did not give evidence in the proceeding.

48 Jones v Dunkel provides a rule about inferences that may be drawn from established facts. As explained by the Court of Appeal in Chong v CC Containers Pty Ltd:

The rule does not enable the absence of a witness to make up any deficiency of evidence. It will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn. But where evidence has been left uncontradicted, any inference favourable to a party for which there was ground in the evidence might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied on as the ground for the inference, has not been called as a witness and the evidence provides no sufficient explanation of his or her absence. The reasoning involves the treatment of the failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default.[18]

49 An inference that the evidence of a party would not help a party's case does not allow a finding of fact to be made that is otherwise not available on the evidence.

50 The plaintiff relies on the judgment of Mahoney P, with whom Gleeson CJ and Meagher JA agreed, in Abernathy v Deitz,[19] to mount an argument that in a judicial review proceeding a government official is obliged to give evidence to explain his or her decision.

51 The appellant in that case was a deputy coroner. He had determined under s 48 of the Coroners Act 1980 (NSW) to direct the conduct of a post-mortem examination of a man who had died as a result of a motor vehicle accident. His widow, who was the executor under his will, applied to review the decision. The deputy coroner gave no evidence as to the reasons for his decision to direct the post-mortem examination.

Mahoney P accepted that, as a matter of legal obligation, the decision-maker was not obliged to give evidence. However, his Honour added that where an officer, in the exercise of a public power, elects to give no evidence regarding the reasons for a decision, it may in the context of the case be open and proper to infer that the officer could give no evidence of any reasons which would assist the officer's contention that the exercise of the power was valid. Expanding on that point his Honour said:

The inference which can and should be drawn from silence or the deficiency of evidence in this regard will, of course, depend upon the circumstances of the case. In the present case, it was, in my opinion, the obvious purpose of the plaintiff's case to establish the invalidity of the determination and to do so by establishing, by reference to the principles to which I have referred, why the power given by s 48 had not been effectively exercised. The plaintiff, by her evidence, sought to show that the grounds - perhaps, the main grounds - by reference to which a post-mortem might validly be directed, viz, those relevant to medical or legal matters, did not exist in this case. The matter was therefore in issue before the court. In my opinion, it is not open to an official - special circumstances apart - to ignore the fact that such an issue is before the court for determination and simply to refuse to call evidence upon the matter. In a case such as the present, if the official does not seek to provide a basis for the validity of what was done, it may be inferred, as the judge inferred, that nothing could be advanced in support of the validity of the determination.[20]

52 In my opinion, the effect of the decision is to reaffirm that the approach in Jones v Dunkel can apply in a judicial review context. That is not in controversy. I do not take his Honour's reasons as permitting a different mode of reasoning or a different outcome to that mandated by the line of authority commencing with Jones v Dunkel.

53 In this case, the only direct evidence of what the magistrate was told comes from his reasons, which were provided in the emails of 14 and 18 November 2019. The plaintiff submits, based on paragraph three of DSC Poynton's affidavit and the email from Sergeant Smith, that DSC Poynton believed that the plaintiff had been physically engaged in the assault and that this makes it likely that she told the magistrate this when she sought the warrant on 10 October 2019.

54 Even if DSC Poynton believed, on 15 October 2019, that the plaintiff had assaulted the victim, I am not prepared to infer that DSC Poynton told the magistrate that the plaintiff assaulted the victim rather than participated in the assault of the victim in the sense of being involved in a joint criminal enterprise.

55 First, the reasons do not permit that conclusion to be drawn. The magistrate refers to the plaintiff being involved in the alleged offending. The reasons do not suggest that whether or not the plaintiff struck the victim or was involved in the alleged offending by one of the means identified in s 323 of the Crimes Act was a matter of any great significance to the magistrate. No further reasons were sought.

56 Second, the still CCTV footage does not show the plaintiff striking the victim. The stills show the plaintiff standing next to the victim as he is struck by one or other of the offenders but, consistently with the CCTV footage,[21] there is no image of the plaintiff physically assaulting the victim. But the stills do enable an inference to be drawn that the plaintiff was involved in the assault. The proximity of the plaintiff at the point of the assault and his stance support an inference that he was involved in the alleged offending. The magistrate refers to the stills and plainly had regard to them.

57 Third, the statement of material facts, which I infer sets out the main allegations of facts against Fiore and Corbet in support of extradition, does not say that they struck the victim. That may suggest that either by the time of its preparation DSC Poynton did not believe that they had done so or that she did not regard it as material to the application for extradition under SEPA. Both inferences are open.

58 Fourth, paragraph three of DSC Poynton's affidavit is ambiguous and it is difficult to infer that, when she explained the offence to the magistrate, DSC Poynton conveyed the substance of that paragraph. The reference to Bochrinis and the plaintiff having joined Gemci and Corbet in assaulting and kicking the victim is apt to describe both a situation in which all four offenders are physically engaged in the assault but could equally describe the four offenders being joined by a common purpose in assaulting and kicking the victim irrespective of whether they were all involved in assaulting the victim physically. I would accept that the first rather than the second is the more natural reading of the paragraph.

59 The reference in paragraph 4 of the affidavit that 'all the accused were acting in concert to commit the offences' also made it less important, for the purpose of considering whether or not to issue a warrant, to identify whether all or only some of the offenders were engaged in the physical assault Even if the affidavit had clearly stated that the plaintiff had physically assaulted the victim, it does not follow that the informant would have given that version to the magistrate as opposed to the version set out in the statement of facts which does not contain that allegation.

60 I add that the premise underscoring the plaintiff's submissions that a person who is involved in the commission of an offence[22] must be less culpable than the person who strikes the victim is not self-evident. Still less would it follow that any differing degrees of culpability across co-offenders would always be relevant to the discretion to issue a warrant to arrest under s 12 of the CPA, rather than a summons, or would necessarily feature in any application for a warrant to arrest.

61 In reaching that conclusion, I am mindful that DSC Poynton did not give evidence in this Court. I have taken that into account but do not consider that it can justify drawing the inference that the plaintiff invites me to draw. Further, she was not the decision-maker. The plaintiff requested and obtained reasons for the magistrate's decision, the purpose of which was to obtain a statement setting out the material evidence relied upon and the magistrate's findings of fact, conclusions and path of reasoning. The plaintiff does not contend that the reasons provided are inadequate.

62 The plaintiff was entitled to rely on a Jones v Dunkel inference but, as I have held, that was inadequate to the task. The plaintiff did obtain documents from DSC Poynton but they did not illuminate the question in issue. There is no reason why the plaintiff could not have subpoenaed DSC Poynton to give evidence of what she told the magistrate. He had the benefit of both DSC Poynton's affidavit and the statement of material facts and the potential comfort of s 38 of the Evidence Act 2008. He chose not to take that course.

64 By this ground, the plaintiff contends that s 12(5) of the CPA is only concerned with whether or not the accused person will attend court. He says that the magistrate misconstrued s 12 of the CPA by treating the fact that the plaintiff was residing outside of Victoria, and an application for extradition was being sought, as providing a sufficient basis to conclude that there was 'other good cause' to issue a warrant within s 12(5)(c).

65 The plaintiff first submits that the only issue presented by s 12 of the CPA is whether the person was or was not likely to answer a summons. This involves a question of construction.

66 The first criterion in s 12, which is common to both a summons and a warrant to arrest, is that the registrar (or magistrate[23]) be satisfied that the charge discloses an offence known to law.[24] Self-evidently, this criterion does not require any assessment as to the strength or adequacy of the case brought against the accused person. Once that criterion is satisfied, the registrar must issue either a summons or a warrant.[25]

67 In order to issue in the first instance a warrant to arrest, s 12(5) must be satisfied. It is expressed in the negative in that the registrar must not issue a warrant to arrest unless satisfied by sworn or affirmed evidence of one of the three limbs in s 12(5)(a) to (c). The first is directed to the probability that the accused will not answer a summons; the second is that the accused has absconded or is likely to do so or is evading service of a summons; and the third is that a warrant is required or authorised by any other Act 'for other good cause'.

68 The first two conditions relate to whether a summons will effectively secure the attendance of the accused at court. Textually, s 12(5)(c) is not expressly so limited. The plaintiff submits that such a limitation is to be implied in order to further the purpose of this section and conform with the ejusdem generis rule of construction.

69 As the introductory words to s 12(1) make clear, the predicate for the power to issue a summons or arrest warrant is that a criminal proceeding has commenced by way of the filing of a charge-sheet. The purpose of a summons or warrant is to bring the charge to the attention of the accused and to ensure their attendance at court to answer the charge.

70 Both a summons and a warrant serve the administration of justice by ensuring that the accused is on notice of the charge and to enable the court to deal with the matter on the first return. In the case of a summary offence, that may include resolution of the charge on a plea of guilty, arranging for the matter to proceed to contest or even proceeding in the absence of the accused. For indictable offences, the matter will be managed through the provision of material, committal for trial or plea or resolution as a summary matter in the Magistrates' Court.[26]

71 The issue of a summons does not provide any authority to detain or arrest the accused. The accused is able, and required, to attend court on the specified day but remains at liberty. In the event of non-appearance in answer to a summons, the Magistrates' Court may issue a warrant to arrest the accused.[27] In the case of a summary charge, the Magistrates' Court is authorised to proceed to hear and determine the charge in the absence of the accused in accordance with various provisions.

72 A warrant authorises a member of the police force to arrest and detain the accused in order for the accused person to be brought as soon as reasonably practicable to the court to be dealt with according to the law. It differs from a summons in that it provides the means to compel the attendance of the accused before the court. The purpose of a warrant is to compel the person's attendance at court.

73 A warrant has the effect that the accused person is brought under the control of the court quickly. This enables the court to determine whether or not the accused is entitled to be granted bail in accordance with the Bail Act 1977 ('Bail Act'). Any grant of bail may be made subject to such conditions as may be required in the administration of justice.

74 In exercising the power under s 12(5), the issuing officer, who will usually be a registrar, must be satisfied as to the existence of one of the three limbs. Plainly, it is necessary to have regard to whether the accused would attend court under summons. However, I am not satisfied that the phrase 'other good cause' is limited to that matter.

75 First, whether the accused person would attend court in answer to a summons or avoid service is dealt with in paragraphs (a) and (b) and the plaintiff's construction of s 12(5)(c) would add little, if anything, to those provisions.

76 Second, the words 'good cause' in their ordinary meaning connote a good reason, according to the justice of the case.[28] Given the breadth of the phrase, there is no reason to give it any narrow construction.

77 Third, it would be surprising if the power to issue an arrest warrant in the first instance could not accommodate the potential for an interference with the administration of justice that might arise if the accused person were permitted to remain at liberty until the first return date listed in the summons.

78 It is useful at this point to mention the powers conferred on police officers and others to arrest without a warrant.[29] Section 459 of the Crimes Act authorises a police officer to apprehend (without a warrant) any person he or she believes on reasonable grounds has committed an indictable offence in Victoria or he or she believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria. Section 459A provides power of entry and search in aid of the arrest power.

79 Section 464A provides that every person taken into custody for an offence must be released unconditionally, released on bail or brought before a bail justice or the Magistrates' Court within a reasonable time of being taken into custody. Section 4 of the Bail Act provides that a person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision-maker is required to refuse bail under that Act.

80 Equally, the power of arrest may be used to interrupt the commission of an offence or may be deployed where there is a risk that the accused may interfere with witnesses or dispose of evidence.[30]

81 The history and purpose of arrest without warrant has been the subject of a number of High Court cases.[31] Most recently, in New South Wales v Robinson,[32] the High Court reiterated the organising principle that an arrest can only be for the purpose of taking the arrested person before a court to be dealt with according to law to answer a charge for an offence. It does not permit arrest pending an investigation or merely for interview or interrogation.[33] However, the need to bring the person before a court as soon as practicable, and to keep them in custody until that occurs, may be informed by a number of matters beyond the simple question of whether or not they would answer a summons.

82 The discretion reposed in a police officer, to either proceed by summons or to arrest the person suspected of committing an indictable offence, is principally, but not necessarily exhaustively, governed by an assessment of whether or not the person would attend court if served with a summons. There is no reason to conclude that s 12(5)(c), given the breadth of its language, could not cover similar exigencies.

83 It follows that s 12(5)(c) is not confined to questions of attendance at court although, plainly, it is likely to be an important consideration in any exercise of the power to issue a warrant to arrest.

84 The plaintiff next submits that even if s 12(5)(c) has a broader scope than securing attendance, nevertheless extradition from another state, in and of itself, cannot provide a good cause for issuing a warrant to arrest an accused person who is outside Victoria.

85 The plaintiff did not submit that extradition from another state is an irrelevant consideration in the sense that the magistrate was prohibited from having regard to it and he accepted that the magistrate was entitled to take it into account. Even on the narrowest construction of s 12(5)(c), the fact that the person is interstate is capable of bearing on whether or not the person will answer a summons. Self-evidently, the connections that a person has to the community, the seriousness of the charged offences and the nature of the alleged offending will be important matters bearing on an assessment of whether a summons will be adequate to secure the person's attendance at court.

86 Notwithstanding that the plaintiff accepted that residence intestate and extradition from that state is not an irrelevant consideration, he maintained that it provided an insufficient basis for the issue of a warrant. However, whether or not extradition alone provides an adequate reason for a warrant does not arise because I am not satisfied that extradition was the only matter that the magistrate took into account and so the ground fails.

87 Although the warrant says that it is being sought 'for other good cause namely: Extradition from Western Australia', the plaintiff accepted that it is necessary to also have regard to the grounds on which the warrant was sought, which include that the accused is permanently residing in Western Australia and is wanted for arrest for indictable offences with the intention of seeking extradition to Victoria.

88 In his reasons, the magistrate recorded that he heard a narrative of the alleged offending supplied by DSC Poynton and believed he had viewed still shots taken from the CCTV footage. He concluded that there were reasonable grounds for the belief that the persons named in the arrest warrant were involved in the alleged offending. Although the content of the narrative provided by DSC Poynton was not the subject of direct evidence, I am satisfied that the magistrate was alive to the seriousness of the charges, the fact that there were reasonable grounds for the belief that the persons named in the warrants were involved in the alleged offending and that they were residing out of Victoria.

89 It is true that, under s 12, the only criterion related to the nature of the offence is that the decision-maker be satisfied that the charge discloses an offence known to the law.[34] However, an assessment of the strength or cogency of the evidence is not, in my view, irrelevant to s 12(5)(c) and could help inform an assessment of whether detention under warrant is justified. The fact that the magistrate found reasonable grounds for the belief that the accused (one of which was the plaintiff) were involved in the alleged offending is not evidence that the magistrate asked himself the wrong question.

90 There is no reason to conclude that the magistrate only had regard to the fact that extradition was sought. The warrant and reasons provided suggest that the gravity and nature of the alleged offending, the strength of the case against the plaintiff and the fact that the offenders were resident interstate were all matters that the magistrate took into account. Certainly, the plaintiff has not established that the magistrate ignored those matters.

91 It follows that the magistrate did not issue the warrant for the sole reason that the plaintiff was a resident of another State and his extradition was being sought nor was the magistrate confined by s 12(5) to only consider the probability of whether or not the plaintiff would attend a court if he was served with a summons rather than arrested under warrant. The premise for ground 1.2 has not been established.

92 The plaintiff also submits that, as applied by the magistrate, s 12(5)(c) of the CPA discriminated against the plaintiff because he was resident of another State in breach of s 117 of the Constitution. I do not accept that submission. Section 117 of the Constitution applies to subjects of the Queen and provides that a resident in any State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

93 Section 117 requires an assessment of whether the out of State resident would be free from the relevant burden or disadvantage created by the Victorian law if they were resident in Victoria.[35] In this case, neither s 12 of the CPA nor the decision of the magistrate discriminated against the plaintiff because he was resident of another state. Whether a person may answer a summons or require to be compelled to be brought to court may, for example, depend on the connection that the person has within the community. A person who resides interstate may have no connection and for that reason be reluctant to return to the relevant state. To take that matter into account for the purpose of s 12 does not involve any wrongful discrimination. Place of residence may be a relevant factor in the exercise of the power. The facts of the present case highlight the lack of discrimination in that the two co-accused who are resident in Victoria were arrested and remanded in custody under s 459 of the Crimes Act.

95 The plaintiff submits that the magistrate failed to take into account whether or not the plaintiff might simply answer a summons in Victoria.

96 I am not satisfied, as a matter of fact, that the magistrate failed to take this matter into account. First, the warrant itself identified the potential grounds for a warrant under s 12(5), including whether it was probable that the person will not answer a summons. Further, the nature of the alleged offending, the fact that the plaintiff permanently resides interstate and that police were seeking extradition rather than simply serving a summons interstate, are all matters that could bear on whether or not the plaintiff might answer a summons. I am not persuaded that the magistrate ignored this consideration.

98 The plaintiff submits that the decision to issue the warrant was arbitrary, capricious or disproportionate (in the sense described in McCloy v New South Wales).[36] As with all grounds of judicial review, the plaintiff bears the onus of proof.

99 If a decision made in the purported exercise of a statutory power is in breach of the standard of legal reasonableness, then the decision or action is outside the scope of the authority conferred by the statutory power.[37]

100 The relevant standard is a legal standard and it is not breached merely because a court disagrees, even emphatically, with the merits of the decision. It arises because, as explained in Minister for Immigration and Citizenship v Li, there is a presumption of law that Parliament intends an exercise of power to be reasonable.[38] Put another way, it is an implied condition of the statutory conferral of power that a statutory power must be exercised 'within the bounds of reasonableness'.[39] In Minister for Immigration and Border Protection v SZVFW, Gageler J said that '[t]he implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds.'[40]

101 It is necessary to determine whether the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification.'[41] The Wednesbury[42] formulation of unreasonableness, namely, that the decision is one that no reasonable decision-maker could have arrived at, is a way of expressing the conclusion that the decision lacks an intelligible justification.[43]

102 Any assessment of the legal reasonableness of a decision must occur within the particular statutory and factual setting in which a decision is made. Indeed, 'the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case.'[44] Usually, that assessment will be directed to either the process of reasoning adopted by the decision-maker, as reflected in the reasons for decision, or the particular outcome of the exercise of power, having regard to the material that was before the decision-maker.

103 The first issue that arises is what is the evidentiary record on which the question of unreasonableness or illogicality is to be determined?

104 In the present case, the plaintiff has produced the magistrate's reasons for decision and the still footage from CCTV recordings, but not other evidence or material that was before the magistrate.

105 Having regard to his reasons for decision, I am not persuaded that the magistrate's decision to issue an arrest warrant for the plaintiff was arbitrary, capricious or disproportionate. Nor was it plainly unjust. Given the seriousness of the charges, the fact that the plaintiff was interstate, had no apparent connection to Victoria, and that the magistrate was given a narrative of the offence that permitted him to conclude that there were reasonable grounds for the belief that the persons named in the warrant were involved in the alleged offending, I am satisfied that it was reasonably open to the magistrate to issue a warrant to arrest.

106 The plaintiff submits that the court should conclude that the substance of paragraph 3 of DSC Poynton's affidavit was before the magistrate and the magistrate was told that the plaintiff had physically assaulted the victim. However, the plaintiff submits that I should not infer, in the absence of any evidence from DSC Poynton, that the balance of her affidavit or the substance of the statement of material facts was disclosed to the magistrate. In written submissions the plaintiff also refers to an apparent discrepancy between whether the plaintiff was on bail for one or more matters. Given that on any view the plaintiff was on bail, that distinction takes him no further.

107 There are a number of difficulties with the plaintiff's submission. First, to the extent that the decision was said to be unreasonable having regard to the material before the magistrate (as opposed to what is revealed by his reasons which I have already addressed), the plaintiff faces the insuperable obstacle that he has not proven what material was before the magistrate.

108 I have already rejected the factual submission that the substance of paragraph 3 was conveyed to the magistrate in dealing with ground 1.1. Second, even if I were to proceed on the basis that the substance of paragraph 3 of the affidavit was conveyed to the magistrate, there is no reason to consider that this material was the only matter contained in the affidavit or statement of material facts that was disclosed. If I were to have regard to all of the material in the affidavit and the statement of material facts, the submission that the issue of the warrant was irrational or unreasonable is even weaker. Specifically, I note the arrest and remand of the co-accused, the seriousness of the alleged offences, the apparent strength of the crown's case evidenced by the CCTV footage, the fact that the plaintiff was only in Victoria for a very short period of time and left shortly after the offences were committed and the lack of connection between the plaintiff and Victoria.

110 By this ground, the plaintiff contends that the warrant was invalid because, at the time it was issued, a charge-sheet had not been filed.

111 Section 12(1) provides that 'on the filing of a charge-sheet' an application may be made to a registrar for the issue of a summons or warrant to arrest. Section 12(4) provides that on an application under subsection (1) the registrar must, if satisfied that the charge disclosed an offence known to law, either issue a summons or a warrant.

112 The plaintiff submits that the scheme requires a charge-sheet to have been filed before the making of an application for a summons or warrant. He further says that because there was no stamp affixed on the document as contemplated by r 10 of the Magistrates' Court Criminal Procedure Rules 2009[45] I should infer that it was not filed by the time the magistrate issued the warrant.

113 Section 6(1) of the CPA provides that a criminal proceeding is commenced by filing a charge-sheet containing a charge with the registrar of the Magistrates' Court. In allowing for an application to be made 'on the filing a charge-sheet', the language of s 12(1) permits an application to be made at the same time as a charge-sheet is filed.

114 Whether a charge-sheet has been filed is a question of fact, proof of which is facilitated by the affixing of a stamp in accordance with r 10 of the Magistrates' Court Criminal Procedure Rules 2009. Rule 10 provides that any document filed with the court shall be stamped by a registrar with the date and venue of the court. It is noted that the affixing of the stamp occurs in respect of 'any document filed' and, as a matter of ordinary language, would constitute an act that is subsequent to the document being filed. The rules do not provide that a document is not filed unless and until it is stamped.

115 Although the part of the front page that deals with the warrant to arrest is signed by the magistrate, there is no separate box on the form for a registrar to sign as evidence of the charge-sheet having been filed. However, the two pages in which the charges continue are each signed and dated by the magistrate.

116 It is self-evident that the magistrate had before him a completed charge-sheet alleging five offences. The magistrate completed the venue of the court, signed and dated the charges.

117 I am satisfied that the charges were filed at the same time as the application for a warrant. The reasons of the magistrate suggest that the charge-sheets and warrants was first provided to court staff and arrangements were made for the magistrate to consider the issue of warrants based on the charges. This is permitted by s 12(1).

119 Rule 11(e) of the Magistrates' Court Criminal Procedure Rules 2009 provides that the prescribed form for a charge-sheet and warrant to arrest is Form 5. It prescribes a combined form. The plaintiff submits, under cover of this ground, that a combined charge-sheet and warrant to arrest is invalid because it is inconsistent with ss 5, 6, 12 and 13 of the CPA.

120 The plaintiff submits that the registrar or magistrate has a discretion, once a charge-sheet has been filed, to issue a summons or a warrant to arrest. He submits that the issuing officer is required to turn his or her mind to which of the two alternatives is appropriate, noting that the execution of a warrant involves a significant intrusion on the liberty of the subject. The plaintiff submits that presenting the magistrate with a combined charge-sheet and warrant blurs the distinction between filing a charge-sheet on one hand, and issuing a warrant on the other, and 'to obscure the graduated consideration of summons in the first instance, and warrant to arrest only if satisfied that that the (sic) issue of a warrant is both appropriate and necessary in the circumstances.'

121 The plaintiff submits that there is an appreciable risk that the decision-maker will be distracted from his or her task by being presented with a convenient shortcut that would compress the separate consideration required as between summons and warrant.

122 The submission should be rejected. First, the act of filing is not an act of the court but rather one of the party who seeks to commence the criminal process. The decision to issue a summons or a warrant is not unimportant. Section 12(5) clearly prescribes the circumstances in which a warrant may be issued in the first instance. I do not accept that the exercise of power contemplated by s 12(5) would be impermissibly side-tracked by the fact that the application is presented in a combined form.

123 There is nothing in the CPA that requires the charge-sheet and warrant to be on different pieces of paper. Clearly, where a warrant is issued, ss 12 and 13 require the charge-sheet and warrant to go hand-in-hand. Section 12 links the issue of a summons or warrant to the filing of a charge-sheet. Section 13 requires the summons or warrant to be served together with the charge-sheet. It is untenable to contend that a magistrate would be persuaded to issue a warrant simply because it is on the same page as the charge-sheet or merely because the informant asks for it.

124 The combined form of the charge-sheet and warrant is not invalid and therefore ground 2.2 fails.

125 None of the grounds that challenge the validity of the warrant can be accepted. The plaintiff has failed to establish jurisdictional error or error of law on the face of the record.

126 The proceeding should be dismissed. I will hear the parties on the form of order and the question of costs.

[1] The plaintiff submits that the request was made under s 8 of the Administrative Law Act 1978.

[2] Exhibit "DV10" to the Affidavit of Diana Velevski dated 13 February 2020, pp 164-165.

[5] Magistrates' Court Act s 61(6).

[6] Ibid s 63.

[7] Ibid s 64.

[8] Ibid s 64(2).

[12] The plaintiff did not press the second limb of ground 1.3 at the hearing.

[13] Amended Originating Motion for Judicial Review dated 20 December 2019.

[14] In the public law sense described in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189.

[15] Price v Elder [2000] FCA 133; (2000) 97 FCR 218, 221, [12] (Black CJ, Sackville and Emmett JJ).

[16] Crimes Act s 324 provides that a person who is involved in the commission of the offence, within the meaning of s 323, is taken to have committed the offence and is liable to the maximum penalty.

[17] [1959] HCA 8; (1959) 101 CLR 298.

[18] [2015] VSCA 137; (2015) 49 VR 402, 463, [208] (Redlich, Santamaria and Kyrou JJA).

[19] (1996) 39 NSWLR 701.

[21] Which was not before the magistrate.

[22] Crimes Act s 323.

[23] Magistrates' Court Act s 29.

[24] CPA s 12(4).

[25] Mortimer v Stecher [1971] VicRp 106; (1971) VR 866.

[27] Ibid ss 80 and 81.

[28] Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; (1993) 2 VR 382, 394 (Fullagar, Marks and J D Phillips JJ).

[29] Crimes Act ss 458 (any person) and 459 (police or protective services officers).

[30] John Bishop, Criminal Procedure (Butterworths, 1983) 60-62; Richard Fox and Nadia Deltondo, Victorian Criminal Procedure State and Federal Law (The Federation Press, 15th ed, 2019) pt 4.2.2.

[31] Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, 283 (Gibbs CJ), 292-294 (Mason and Brennan JJ) and 306-307 (Wilson and Dawson JJ). See also McLachlan v Mesics [1966] HCA 50; (1966) 116 CLR 340 and Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1 at 4 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[32] [2019] HCA 46; (2019) 94 ALJR 10.

[33] Ibid [62]-[63], [93], and [110] (Bell, Gageler, Gordon and Edelman JJ).

[35] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461.

[36] [2015] HCA 34; (2015) 257 CLR 178, 195, [3] (French CJ, Kiefel, Bell and Keane JJ).

[37] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 564, [53] (Gageler J) ('SZVFW').

[38] [2014] FCAFC 1; (2013) 249 CLR 332, 351, [29] (French CJ), 362, [63] (Hayne, Kiefel and Bell JJ), 370, [88] (Gageler J) ('Li'), cited in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, 445, [43] (Allsop CJ, Robertson and Mortimer JJ) ('Singh').

[39] SZVFW [2018] HCA 30; (2018) 264 CLR 541, 564, [53] (Gageler J).

[41] Li [2014] FCAFC 1; (2013) 249 CLR 332, 367, [76] (Hayne, Kiefel and Bell JJ); Singh [2014] FCAFC 1; (2014) 231 FCR 437, 443, [35] and 445, [44] (Allsop CJ, Robertson and Mortimer JJ).

[42] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[43] SZVFW [2018] HCA 30; (2018) 264 CLR 541, 550, [10] (Kiefel CJ).

[44] Singh [2014] FCAFC 1; (2014) 231 FCR 437, 447, [48] (Allsop CJ, Robertson and Mortimer JJ).

[45] The Magistrates' Court Criminal Procedure Rules 2019 came into operation on 13 December 2019 and the Magistrates' Court Criminal Procedure Rules 2009 have been revoked. In this judgment reference is made to the 2009 rules which were in operation at the relevant time. I note that rr 10 and 11 of the 2009 rules are replicated in rr 11 and 13 of the 2019 rules.