48 I find that the County Court did fall into jurisdictional error. Although the County Court clearly had jurisdiction to hear and determine the appeals, the mistake which I have found was made by the County Court judge amounted, in my view, to a misapprehension of the nature of her Honour's functions and powers on the hearing of the appeals. This misapprehension was constituted by her Honour by failing to ignore, or disregard, the amendments to the charges made by the Magistrate, and then proceeding to hear and determine those amended charges. This was contrary to ss 85 and 86(1)(a) of the Magistrates' Court Act. Those provisions obliged her Honour to set aside all of the orders of the Magistrates' Court, including the orders for amendment of the charges, and to start again on the basis of the original charges. As I have said, I find that her Honour was led into error in this regard and so failed to exercise the jurisdiction conferred by these provisions of the Magistrates' Court Act.
Relief: exercise of discretion
49 There remains to be considered the question of whether, in the exercise of my discretion, I should grant the plaintiffs the relief which they seek.
50 On the question of discretion to grant relief, it was submitted on behalf of the informant that I should refuse relief, even if satisfied that there has been jurisdictional error, because the plaintiffs, represented by experienced senior and junior counsel, did not "take the point" at the hearing before the County Court. In this regard, I note that there was an issue as to whether Mr Mendonca was represented before the County Court. He swore that he was not, and that senior and junior counsel only appeared on behalf of Candolim and Mrs Mendonca and, in respect of the charges against him, as amicus curiae. Mr Mendonca was cross-examined in respect of this issue. Although it is not necessary for me to decide it, having regard to the view that I take as to the proper exercise of my discretion, I find that Mr Mendonca gave instructions to and was represented by senior and junior counsel who announced their appearance on behalf of Candolim and Mrs Mendonca in the County Court.
51 I do not accept the submissions put on behalf of the informant in relation to discretion. No application was made on behalf of the informant to amend the handling charges. Nor did the County Court judge raise the issue. Although the opening remarks by counsel for the informant may have alerted counsel for the plaintiffs that there was an issue as to the form of the charges which were the subject of the re-hearing before the County Court, I am not satisfied that the failure of counsel for the plaintiffs to raise the matter with the County Court judge amounts to a waiver, if waiver of jurisdictional error is possible, or other conduct disentitling the plaintiffs to the relief which they seek.
52 In my view, as a matter of discretion, I should grant the relief sought. As I have said, it seems to me that the learned County Court judge was led into error by a combination of factors including the opening remarks of counsel for the informant and the failure of senior counsel for Candolim and Mrs Mendonca, or Mr Mendonca, to draw to her Honour's attention the fact that it was the original unamended charges which were before her by way of re-hearing.
53 However, the fact remains that the charges were not, by reason of jurisdictional error, heard and determined according to law. Findings of guilt in respect of each of the food handling charges were made against each of the plaintiffs, and convictions entered. This situation ought not be allowed to stand if infected by jurisdictional error. It may well be, if the nature of the charges had been fully explored in the County Court hearing, that the learned County Court judge would have amended the charges, either on the basis of an application made in that regard or of her Honour's own volition. However, that should not be presumed. This Court should not speculate as to what course would have been adopted if the issues concerning the nature of the charges to be heard and determined had been fully ventilated on the hearing of the appeals. In my view, the proper course is for me to exercise my discretion to quash each of the convictions against the plaintiffs on the food handling charges and to remit the appeals in respect of the food handling charges to the County Court for re-hearing according to law.
54 I will hear counsel as to the appropriate form of orders and as to costs.
------