//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] ACTCA 5
Court of Appeal (ACT)
2025-02-10
McCallum CJ, Mossop J and Ainslie-Wallace AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 22 ACTLR 160
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Styche v Bourke Citation: [2025] ACTCA 5 Hearing Date: 15 August 2024 Decision Date: 10 February 2025 Before: McCallum CJ, Mossop J and Ainslie-Wallace AJ Decision: (1) The appeal is dismissed.
Catchwords: APPEAL – CRIMINAL LAW – Whether a decision “should not in law have been made” for the purposes of s 219D(c) of the Magistrates Court Act 1930 (ACT) – whether failure to give adequate reasons means that decision “should not in law have been made” – it does APPEAL – HUMAN RIGHTS – Operation of right not to be tried or punished more than once under s 24 of the Human Rights Act 2004 (ACT) – interpretation of Magistrates Court Act s 219D(c) – provision for a prosecution review appeal either consistent with s 24 because that right is only engaged upon “final” acquittal or alternatively a reasonable limit upon a human right under s 28 APPEAL – CRIMINAL LAW – Whether primary judge erred in her interpretation and application of Liberato – possibility that Liberato provided a basis for acquittal not a sufficient ground in circumstances where magistrate’s reasons attended by legal error APPEAL – CRIMINAL LAW – Whether primary judge erred in not exercising her discretion to refuse relief on the principle of double jeopardy – whether rehearing in Magistrates Court would constitute abuse of process where accused had been acquitted at first instance – legislature has provided for a prosecution appeal and acquittal where there was an error of law – no abuse of process APPEAL – CRIMINAL LAW – Whether primary judge was in error in declining to consider proviso in s 219F of the Magistrates Court Act – the proviso provides for consideration of merits of the case but does not require full assessment of facts when appeal is limited to an error of law Legislation Cited: Court of Petty Sessions Ordinance 1930 (ACT) Crimes Act 1900 ss 60(1), 375, 475 Crimes Legislation Amendment Act 2008 (ACT) Human Rights Act 2004 (ACT), ss 24, 28 Justices Act 1890 (Vic), s 141 Justices Act 1928 (Vic), s 150 Justices Act 1957 (Vic), s 155 Justices Act 1958 (Vic), s 155 Legislation Act 2001 (ACT), ss 139, 140, 141 Magistrates Court Act 1930 (ACT), ss 219B, 219D, 219F, Divs 3.10.2, 3.10.3 Cases Cited: Bourke v Styche [2024] ACTSC 62; 21 ACTLR 86 Dahlstrom v Low (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 July 1996) Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Liberato v The Queen (1985) 159 CLR 507 Mark v Henshaw (1998) 85 FCR 555 Pell v The Queen [2020] HCA 12; 268 CLR 123 Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982) Saunders v King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974) Taylor v Armour & Co Pty Ltd [1962] VR 346 Young v Paddle Bros Pty Ltd [1956] VLR 38 Texts Cited: Human Rights Committee, General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial, th 90 sess, UN Doc CCPR/C/GC/32 (23 August 2007) Human Rights Committee, Views: Communication No nd 1310/2004, 92 sess, UN Doc CCPR/C/92/D/1310/2004 (3 April 2008) (‘Babkin v Russian Federation’) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Stephen Treschel, Human Rights in Criminal Proceedings (Oxford University Press, 2005)
Parties: Jordan Christopher Styche (Appellant) Bridget Bourke (Respondent) ACT Human Rights Commission (Intervener) Representation: Counsel J White SC (Appellant) K McCann (Respondent) S Fitzgerald (Intervener) Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions ACT Human Rights Commission (Intervener) File Number: ACTCA 5 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: McWilliam J Date of Decision: 12 March 2024 Case Title: Bourke v Styche Citation: [2024] ACTSC 62 THE COURT Introduction
Charges
The 10 charges of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT), related to events alleged to have occurred over five days in October 2020. They involved the appellant and six different female complainants. Each complainant was a sales assistant who assisted the appellant when he was trying on pants or tights in a changeroom. The appellant was alleged to have, by various means, directed the attention of each sales assistant to his erect penis, or an object that looked like an erect penis.
The factual allegations that formed the basis of each of the 10 charges were described in some detail by the primary judge. In summary, they were as follows: (a) CAN 14405/2020 and CAN 14406/2020: on 28 October 2020, the appellant tried on fluoro tights in a women’s activewear store in an outlet centre and walked out of the changeroom gesturing towards his erect penis, possibly with a prosthetic on it, to the first complainant. (b) CAN 14407/2020: a second complainant, working at a different clothing store in the same outlet centre, said that on either 28 or 29 October 2020, the appellant tried on pants, asked for smaller sizes twice and stepped out of the changeroom in front of the attendant while touching and grabbing his penis. (c) CAN 14409/2020: a third complainant at another clothing store located within the same outlet centre recounted that on 30 October 2020, the appellant tried on a pair of women’s leather pants, and had an erection while pointing to his penis and grabbing it in front of the complainant. (d) CAN 14410/2020, CAN 14412/2020, CAN 1124/2022: a fourth complainant, working at the same women’s activewear store as the first complainant but on 30 October 2020, said that the appellant asked for a pair of tights for an 80s themed party. The appellant then stood over the fourth complainant with an erect penis “right in [her] face”. The appellant later said that he would be back on Saturday and asked if the complainant would be there, stating that if she would not be it would be a “shame” to “miss another show”. (e) CAN 14414/2020 and CAN 14415/2020: a fifth complainant was working in a clothing store in the Canberra Centre on 2 November 2020. The appellant said he was looking for a light-coloured pair of pants. When asking how the appellant was going, the complainant saw the appellant with an erection showing through the clothing. The appellant then asked questions as to whether the complainant could see “it” and if it was noticeable, and also commented on the complainant’s appearance and her relationship status. (f) CAN 14417/2020: a sixth complainant on 2 November 2020 served the appellant at a women’s activewear store in a shopping centre in Greenway. The appellant asked to try on tights for an 80s themed party. The complainant picked out a few pairs of tights and showed him to the changerooms. The complainant offered the appellant more items to try after the appellant had returned wearing a pair of shorts, asking for the complainant’s opinion. Later, when the appellant was wearing a pair of pink tights, he visibly displayed an erection, standing in an open stance and holding his shirt out of the way. The phone rang and the complainant spoke to her manager. Security later arrived.
The proceedings before the primary judge
The appeal to the primary judge was brought pursuant to Div 3.10.3 of the Magistrates Court Act 1930 (ACT) (MC Act). Division 3.10.3 of the Act is entitled “Review appeals in criminal matters” in contrast to Div 3.10.2, which is entitled “Appeals in criminal matters”. Section 219B of the MC Act lists the decisions of the Magistrates Court or Childrens Court from which a review appeal may be brought. It includes “an order dismissing an information dealt with” under s 375 of the Crimes Act 1900 (ACT), which was the relevant provision in the present case: MC Act s 219B(1)(a)(iii)(B).
The grounds on which such a review appeal may be brought are set out in s 219D of the MC Act, which provides: 219D Grounds for review The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds: (a) that there was a prima facie case of error or mistake on the part of the Magistrates Court; (b) that the Magistrates Court did not have jurisdiction or authority to make the decision; (c) that the decision of the Magistrates Court should not in law have been made; (d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made; (e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.
The relevant provision for the purposes of the appeal before the primary judge was that in paragraph (c), namely that “the decision … should not in law have been made”. The contention of the Director before the primary judge was that the magistrate had failed to give adequate reasons for his dismissal of the charges and that a failure to give reasons meant that “the decision of the Magistrates Court should not in law have been made” for the purposes of s 219D(c).
The decision of the primary judge
Grounds of Appeal
The grounds of the appeal are that: a) The learned judge erred in her interpretation of s219D(c); b) The learned judge erred in finding that the magistrate’s decision to find the appellant not guilty was a decision which should not in law have been made; c) The learned judge erred in her interpretation and application of Liberato and the criminal standard of proof; d) The learned judge erred in failing to exercise her discretion to refuse the relief sought on the basis of the principle of double jeopardy; e) The learned judge erred in declining to consider the application of the proviso in s219F(5).
It should be noted that no ground of appeal challenged the conclusions that: (a) appeals under s 219D(c) are not confined to jurisdictional error; and (b) the reasons given by the magistrate were inadequate and that the inadequacy of the reasons constituted an error of law.
Grounds (a) and (b)
Submissions
The submissions made on behalf of the appellant addressed appeal grounds (a) and (b) together. The appellant contended that s 219D(c) was not enlivened because there was a distinction between the decision of the Magistrates Court and the process by which the decision had been made. A failure to give reasons related to the process rather than the decision. The failure to give reasons did not demonstrate that the decision to find the appellant not guilty should not have been made. As a consequence, the appellant submitted that the primary judge erred when she held (J[51]) that “if there is a legal error in the process by which that decision is made, then it is a decision that should not ‘in law’ have been made”. The appellant submitted that such an interpretation “would catch decisions of which it cannot be said they should not in law have been made, but it can be said that there was a deficit in the administration of the decision”.
The respondent submitted, first, that the appellant’s argument ignored the language of s 219D(c), which was “should not in law have been made” rather than “could not in law have been made”. That was a textual indicator in favour of a broad interpretation. The section was not limited to whether or not it “could” have been made, having regard to the legal authority or power to make the ultimate decision, but whether it “should” in fact have been made, having regard to the need to do so without legal error.
Second, because a failure to give reasons was an error of law, the decision was one which should not in law have been made.
Third, examples of decisions which the appellant accepted fell within the scope of s 219D(c) — applying the wrong elements of the offence or being under a misapprehension as to the standard of proof — in fact illustrated the correctness of the primary judge’s decision. Each of these was an error in the process by which an ultimate decision was reached and hence fell within the scope of the paragraph.
The Human Rights Commissioner, who was given leave to intervene, made submissions directed to the operation of s 24 of the Human Rights Act 2004 (ACT) (HR Act). That provides: 24 Right not to be tried or punished more than once No-one may be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with law.
The Commissioner submitted that the words “in accordance with law” ought to be interpreted as applying to the word “finally”: Human Rights Committee, Views: nd Communication No 1310/2004, 92 sess, UN Doc CCPR/C/92/D/1310/2004 (3 April 2008) (Babkin v Russian Federation) at [3.5]; Stephen Treschel, Human Rights in Criminal Proceedings (Oxford University Press, 2005) at 390. That had the effect that s 24 would not be avoided simply because there was a legal error in the conviction or acquittal. However, the Commissioner did submit that, consistent with commentary and decisions on art 14 para 7 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), the prohibition would not apply if a higher court quashes a conviction and orders a retrial: Babkin v Russian Federation at [3.5]; Human Rights Committee, General Comment No 32: Article 14: Right to equality before courts and th tribunals and to a fair trial, 90 sess, UN Doc CCPR/C/GC/32 (23 August 2007) at [56]. The Commissioner also pointed out that there is a difference between the source of reasonable limits on the right as between the ICCPR and the HR Act as a result of the existence of the express provision describing such limits in s 28 of the HR Act.
Decision
The meaning to be given to the ground of review in s 219D(c) must be worked out in accordance with the commands of the Legislation Act 2001 (ACT), in particular s 139, as well as s 30 of the HR Act. Best achieving the purpose of the Act under s 139 of the Legislation Act involves having regard to the provisions of the Act as a whole (s 140) and permits regard to be had to material not forming part of the Act (s 141). The legislative history of the relevant provisions may often indicate, for the purpose of s 139, the purpose of the relevant provisions. So far as s 30 of the HR Act is concerned, it has room to operate only once the purpose of the law has been worked out (“so far as it is possible to do so consistently with its purpose”).
The review provisions were inserted by amendment to what was then the Court of Petty Sessions Ordinance 1930 (ACT) in 1972. They picked up the language used in earlier Victorian legislation, including the Justices Act 1890 (Vic), s 141, Justices Act 1928 (Vic), s 150, Justices Act 1957 (Vic), s 155 and the Justices Act 1958 (Vic), s 155. In the 1958 Act, which was in force at the time of the 1972 amendment, the relevant provision was s 155. The grounds of review did not extend to questions of fact. Rather, any such challenge was treated in the same way as an appeal from the verdict of a jury: Young v Paddle Bros Pty Ltd [1956] VLR 38 at 41 at 43; Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351. As a result, it was not for the appeal court “to make up its own mind upon the evidence”.
This approach was followed in the ACT. In Saunders v King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974) Blackburn J said (at 71) in relation to the expression “error or mistake”: The error or mistake referred to in the section is in my opinion an error or mistake of law, or, possibly also, an error or mistake as to some material or undisputed fact, as where the Court misunderstands the evidence in a material respect, or fails to take account of an undisputed material fact, so that there is a certainty or high degree of probability that if the error had not been made the result would have been different. I am not convinced that “error or mistake” in this context includes error of fact at all; but if it does, I am clearly of the opinion that it includes only errors of fact of the kind I have indicated.
His Honour also said (at 73) that s 219F, which allowed further evidence to be called by leave, was only applicable in an “exceptional case”.
In Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982), Kelly J said that the order to review provisions were “concerned generally with questions of law” (at 15). As a consequence, his Honour, having found a magistrate’s decision to have been wrong in law, declined to consider an alternative factual basis upon which a decision of a magistrate could be upheld.
Ground (c)
Submissions
This ground asserted an error in the interpretation and application of the decision in Liberato v The Queen (1985) 159 CLR 507. The appellant objected to two passages in her Honour’s reasons. The first is at J[105], where her Honour said: It was not sufficient for the magistrate to say that he was unable to reject the respondent’s account of events in circumstances where there was no explanation of why, having found each complainant to be both credible and reliable in their accounts, he could not reject the respondent’s account as being reasonably true. The most the magistrate appears to have done is simply considered the respondent’s evidence alone and asked himself whether it was plausible.
The second is at J[121] where her Honour said: The magistrate then determined that he was “unable to reject” the respondent’s “account of events”. Again, it is not discernible from the global approach taken what that meant in circumstances where each complainant had been found to be credible and reliable.
The appellant submitted that Liberato meant that if the defendant’s version was plausible then there must be an acquittal. It was entirely possible that the magistrate could find the complainants to be credible and reliable and yet have a doubt about the appellant’s guilt. That was said to be illustrated by the decision in Pell v The Queen [2020] HCA 12; 268 CLR 123. The appellant submitted that “[t]he primary judge’s key criticism of the approach of the magistrate was accordingly based on a misunderstanding of the relevant principles”. The submission was that it was not necessary for the magistrate to explain why, having found each complainant to be both credible and reliable, he could not reject the respondent’s account. It was said that the primary judge’s reference to cases which articulated the need for reasons on a point critical to the contest between the parties was not appropriate in criminal cases because of the burden that lay upon the prosecution. The appellant contended that the primary judge’s approach to the magistrate’s reasons was based on a misunderstanding of the relevant principles and correspondingly that the magistrate’s approach, based upon Liberato, was not in error.
The respondent submitted that the passage at J[121] followed the primary judge’s explanation as to why the magistrate’s reasons were in error. For each charge, there was a direct and intractable conflict between the evidence of the complainant and the appellant. The reasons did not include any finding about what conduct the magistrate accepted occurred or did not occur and hence what each complainant was honest and reliable about. In the absence of any analysis of the prosecution case and any analysis of the evidence of the appellant against the evidence as a whole, it was impossible to understand why the magistrate concluded that the respondent’s evidence might reasonably be true. There was no explanation as to why, despite the cumulative force of the evidence in the prosecution case and accepting that each complainant was reliable and honest in their account, the magistrate could not reject the appellant’s account as being reasonably possibly true.
Decision
Of the two passages set out above (J[105] and J[121]), the first is only a partial quote of what the primary judge actually said. The quoted passage falls under the heading “The appellant’s submissions”. The first sentence of J[105] containing the quoted passage was: The appellant argued that the duty to give reasons was not satisfied by providing bare, unexplained conclusions that the respondent’s evidence could not be rejected.
Contrary to the appellant’s submissions, the passage was merely reciting an argument put forward by the respondent, the appellant below, and was not an instance of the primary judge recording her own conclusions.
That leaves, as a basis for the ground of appeal, the second passage quoted above. That passage occurred in the context of a discussion of the various ways in which the reasons were inadequate. In summary, the primary judge found: (a) The reasons did not include any specific reference to what the conduct alleged was for each charge; the global approach meant that the reasons did not disclose what conduct the magistrate accepted each complainant was honest and reliable about: J[117]. (b) These were fundamental findings on issues critical to resolving the first element of each charge: J[118]. (c) The magistrate recorded the issue as being whether the appellant’s penis was not erect or whether he touched his penis in a sexual manner, but that was only part of the conduct alleged and resulted in the magistrate not directing his attention to the totality of the conduct the subject of each charge: J[119]. (d) The magistrate referred to the variety of descriptions of the appellant’s penis as giving rise to a difficulty but did not discuss the fact that the conduct that each complainant described occurred on different days, in different stores, in different clothing and that not all accounts included the allegation that the appellant had used a phallic device: J[120]. (e) It was not discernible from the reasons what the magistrate’s reference to being “unable to reject” the appellant’s “account of events” meant: J[121]. (f) The submissions of the appellant (respondent before the primary judge) which were said to be “comprehensive” did not grapple with any factual conflict between the parties at all: J[122]. (g) The rolled-up approach also affected the tendency evidence, which did not depend upon whether the appellant’s penis was erect or whether he used a phallic device at any point: J[123]. (h) The magistrate failed to appreciate the import of the tendency evidence and, although reasons were given as to why it was rejected, those reasons did not “provide a transparent pathway or disclose that the tendency evidence that was actually before the court below had been taken into account”: J[123]. (i) As a result, the reasons did not state the findings of fact or expose the reasons for decision so as to enable a proper understanding of the basis upon which the findings of the court were reached: J[124].
Having regard to the reasons given by the primary judge as summarised above, it is clear that there was no misunderstanding of the principle derived from the decision in Liberato. The proposition that if an accused’s version of events, which is consistent with innocence, cannot be rejected beyond reasonable doubt then an acquittal must follow, does not address the defects identified by the primary judge. Each of those defects remain. That is not to deny that it may have been possible for the magistrate to ultimately have concluded that, because of the inability of the court to reject specific aspects of the evidence given by the appellant, the principle in Liberato required his acquittal. However, that possibility did not avoid the requirement for the giving of reasons which were adequate in the circumstances of the case.
Ground (d)
Submissions
This ground of appeal asserts that the primary judge erred in the exercise of her discretion because she ought to have refused the relief sought on the basis of the principle of double jeopardy.
The appellant submitted that “the re-hearing of the matter would constitute an abuse of process to which the court should not contribute” or that “to order a re-hearing would be to impeach the earlier acquittal won by the respondent”. The appellant placed emphasis on the fact that the appellant had gone into evidence and hence exposed his defence. Having done so “he won an acquittal that was clearly open on the evidence”. On a retrial, the fact that the defendant had exposed his defence would be a considerable forensic advantage to the prosecution.
The respondent pointed to the reasons of the primary judge in which she concluded that remittal of the proceedings following a successful challenge pursuant to s 219B was authorised by statute and could not be described as vexatious, oppressive or for an improper purpose so as to amount to an abuse of process.
The respondent submitted that, although double jeopardy considerations may be taken into account, it would be erroneous to deny relief simply because an offender would be required to face a further hearing. That would frustrate the purpose of the legislation which, by permitting a prosecution appeal, abrogated the rule against double jeopardy. Decision
It is not possible to accept the proposition that a remittal for rehearing of a criminal charge after a successful prosecution appeal under Div 3.10.3 would constitute an abuse of the process of the Magistrates Court. In circumstances where the legislature has provided for a prosecution appeal and has expressly permitted (s 219F(2)(d)(i)) the remittal of the proceedings to the Magistrates Court for rehearing, that course of itself could not constitute an abuse of the process of the Magistrates Court. The legislature has specifically contemplated and legislatively authorised the exposure of an accused person to jeopardy again as a result of a decision of the Magistrates Court being quashed or set aside and the proceedings remitted.
The circumstances of this case do not require any departure from that general proposition. There was nothing about the conduct of the proceedings below or the anticipated future conduct of the proceedings that would allow an order for remittal to be characterised as countenancing or requiring an abuse of the process of the Magistrates Court. The fact that the matter might be required to be reheard, after a trial at which the appellant gave evidence and an acquittal that involved an error of law, is simply a consequence of the statutory scheme.
Ground (e)
Submissions
This ground asserts that the primary judge declined to consider the application of the proviso in s 219F(5) and that this constituted an error.
The submission below was that, because the dismissal of the charges was open to the magistrate on the evidence, no substantial miscarriage of justice had actually occurred.
The appellant contended that the primary judge, in her reasons at J[140], had refused to embark upon consideration of the proviso. The appellant submitted that if successful upon this ground the matter should be remitted to the Supreme Court differently constituted for consideration of the proviso. That would then allow for consideration of the 15 pages of written submissions about the facts of the case that had been put before the primary judge.
The respondent submitted that so far as s 219F(5) was concerned, the confined nature of the appeal and the error found by the primary judge would make it inappropriate for the court to embark upon a detailed process of consideration of the merits which would amount to performing the role of a trier of fact at first instance. The respondent submitted that, as the magistrate had made no findings on critical issues in dispute, there had been a significant failure in the exercise of judicial power, and that constituted a substantial miscarriage of justice in the circumstances. As the prosecution had not contributed to the magistrate’s error and it was not intended to bring a different charge based upon the same facts, such matters did not provide reasons to refuse relief. The fact that the appellant had made a forensic choice did not render any further hearing of the charges unfair. The respondent submitted that there were no compelling reasons why the primary judge ought to have refused relief and, hence, no error was demonstrated.
Decision
Having found error, the powers of the Supreme Court are set out in s 219F. Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 at [84] established that the discretions in ss 219F(1) and (5) are “broad and complementary discretions which should both be considered by the Supreme Court after any conclusion that error is established” and that they provide “separate, overlapping, discretions to dismiss” a prosecution appeal.
After having dealt with the submissions concerning the exercise of the residual discretion, the primary judge turned to the submissions that involved a detailed analysis of the evidence in the case. Of this her Honour said: 138. Finally, in the event that the review appeal succeeded, the respondent invited the Court to embark upon the ultimate merits of the decision, providing what he described was a comprehensive analysis of the evidence in the case. 139. I note what was said in Wolter v Broomhall [2023] ACTSC 331 (Wolter) at [87]: Where an appeal is by way of rehearing, a finding of a failure to give reasons will not usually result in the setting aside of the decision below if the appellate court is otherwise satisfied that the decision of the court below was correct: New South Wales Police Force v Winter [2011] NSWCA 330 at [89]-[90]. … 140. By contrast, this was a review appeal. The residual discretion does provide for consideration of the merits of the case, but it is a step too far as part of that exercise on a review appeal for error of law for the Court to proceed to review the evidence in the matter. It would require the drawing of inferences of fact with a view to ascertaining whether the same result would have been inevitable, and thus no miscarriage of justice occurred. The confined nature of the review and the nature of the error is such that the matter should be remitted for further hearing and factual findings to be made in the Magistrates Court. This is not a case where it is appropriate to exercise the discretion.
In this passage, her Honour recognised that the residual discretion does provide for consideration of the merits of the case. However, in circumstances where the exercise required on a review appeal was to determine the existence of an error of law, it was not appropriate for the court to review the evidence and draw for itself any inferences of fact in order to reach a view as to whether the same result would have been inevitable, with the consequence that no miscarriage of justice occurred. Her Honour considered that the confined nature of the review meant that further hearing and factual findings should be made in the Magistrates Court. This approach is consistent with that of Kelly J in Priest v Cook at 15.
It is clear from her Honour’s reasons that she was ultimately considering the question of whether, for the purposes of s 219F(5), the court should engage in a task of fact-finding in order to determine whether there was no substantial miscarriage of justice notwithstanding the error that the court had found. Because her Honour was addressing the issue raised by s 219F(5), it cannot be said that she “refused even to embark” upon consideration of the proviso. What her Honour did do was decline to engage in a detailed fact-finding exercise in order to predict the ultimate outcome of the case and use that to reach a conclusion that there was no miscarriage of justice because an acquittal was the correct outcome in the circumstances of the case.
Disposition
Each of the grounds of appeal having been rejected, the appeal must be dismissed.
In the event that the appellant succeeded on the appeal, he made submissions which sought an order for costs in his favour. In circumstances where he was unsuccessful in the appeal, he simply sought that there be no order as to costs against him. In the event that the appeal was dismissed, the respondent did not seek costs. In those circumstances, it is not necessary to give any consideration to the submissions as to whether the court has power to make an order for costs on an appeal such as this, and it is appropriate to make no order as to costs.
Order
I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 10 February 2025
Styche
Bourke [2025] ACTCA 5
(1985) 159 CLR 507
(1998) 85 FCR 555
Dahlstrom v Low (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 July 1996) involved an application for review that relied upon there being “a prima facie case of error or mistake” or alternatively “that the decision of the Magistrates Court should not in law have been made” (at 2). The appeal was against the dismissal of a charge by a magistrate. In that case, the actus reus had been established but the magistrate could not be satisfied beyond reasonable doubt that the relevant mental element was present. It was contended that this “amounted to a perverse finding and that such a finding was an error of law” (at 7). Gallop J found that whether or not the mental element was established in the circumstances was a question of fact and that such a question should be treated in the same way as an appeal from the verdict of a jury. Given the finding that the mental element was not established beyond reasonable doubt was open to the magistrate on the evidence, it was not reviewable under s 219C(1).
In Mark v Henshaw (1998) 85 FCR 555 at 563, a Full Court of the Federal Court adopted the earlier authorities as to the scope of appeals by way of order to review, saying: An appeal to the Supreme Court of the Australian Capital Territory by way of order to review pursuant to Pt XI of the Act is not a rehearing. Nor is it an appeal on questions of fact. The error or mistake which has to be demonstrated pursuant to s 219C(1)(c) is confined to an error of law: Saunders v King (unreported, Supreme Court, ACT, Blackburn J, 16 September 1974); Priest v Cook (unreported, Supreme Court, ACT, Kelly J, 22 September 1982); Dahlstrom v Low (unreported, Supreme Court, ACT, Gallop J, 1 July 1996).
The point to note about these previous authorities is that they make clear that the provisions were confined to errors of law and did not generally permit any review of findings of fact.
The change from a process involving an order nisi (which reflected the process involved with prerogative writs) to one which simply permitted orders only took place after the decision in Mark. However, when that change was made in 2009 by the Crimes Legislation Amendment Act 2008 (ACT), although the procedure was changed, the grounds of review remained the same. Having regard to the line of authority outlined above, the legislative intention must be understood to be to retain grounds of the scope previously identified by the courts.
One oddity that arose from the amendments made by the Crimes Legislation Amendment Act is that, although the process for the granting of an order nisi as a preliminary part of the process of review has been abolished, the ground of review in s 219D(a) still refers to there being a “prima facie case of error or mistake”. The reference to “prima facie” makes little sense in the context of a procedure that does not involve the granting of an order nisi, as the existence of only a prima facie case of error would not be sufficient to warrant the setting aside of the decision under review unless the Supreme Court ultimately concluded that there was an error or mistake.
The other point to note about the grounds of review is that, on any view, there is very significant overlap between the various grounds. That is principally because ground (a), which might have been interpreted as extending to errors of fact, has been interpreted as being confined to errors of law and, as a consequence, overlaps very substantially with grounds (b) and (c).
The focus of the appellant’s grounds of appeal was on the scope of s 219D(c). The appellant’s contention was that because reasons are something which accompany the decision, as distinct from being part of the process leading up to the decision, an error of law arising from the failure to give adequate reasons does not mean that “the decision … should not in law have been made”.
This contention can be addressed in two steps. The first step is to recognise that errors in the process by which a decision is reached are within the scope of para (c). That is because lawful decisions arise from processes defined by law and a decision which is reached by a process that is contrary to law will generally be one which “should not in law have been made”. This general proposition is consistent with the appellant’s recognition that, for example, a failure to apply the correct burden of proof or the misstatement of an element of the offence in question would both be errors which would result in a decision that “should not in law have been made”.
The second step is to recognise that a failure to give adequate reasons is in the same category as, and cannot be distinguished from, other procedural errors. The submissions made on behalf of the appellant were to the effect that the failure to give adequate reasons did not demonstrate that the ultimate decision to dismiss the charges was one that “should not in law have been made”. That was because, in the appellant’s submission, the verdict was one which was reasonably open to the magistrate on the evidence.
However, the fact that a particular verdict was one which might reasonably be open on the evidence does not exclude it from the category of decisions which “should not in law have been made”. The submissions of the appellant proceeded as if there was, separate to the legally required judicial process, a decision which was able to be identified as one that should or should not “in law have been made”. It was by that route that the appellant sought to argue that, notwithstanding a legal error, a particular decision was one which would ultimately have been open to the magistrate.
It is not possible to engage in such an exercise because there is no decision which should in law have been made unless it is a decision that has been reached in accordance with law. It is, therefore, not possible to consider whether a decision “should not in law have been made” other than by reference to the requirements of the legal process governing the reaching of that decision. This is illustrated by the decision of the High Court in Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318. In that case, the issue was whether, for the purposes of s 475 of the Crimes Act 1900 (ACT), a “doubt or question” as to Mr Eastman’s guilt could be established by a doubt or question about his fitness to plead or any other element of the process leading to his conviction. A Full Court of the Federal Court had found that a “doubt or question” restricted to fitness to plead was not a doubt as to guilt of that person as it did not relate to his guilt in fact. The High Court unanimously found to the contrary, holding that a doubt about fitness to plead, or any other element of the process to the extent it might have affected the proper determination of the existence of guilt, could be a “doubt or question” for the purposes of the Act: see [21], [128]-[129]. The position was most clearly explained in the separate judgment of McHugh J (at [10]-[11]): Even when the primary facts are admitted, the “guilt” of an accused person depends on the law that has to be applied to those facts. Without applying the law to the facts as found or admitted, “guilt” in a legal sense is a meaningless concept. … In all these cases, it is fanciful to speak of “guilt” as being an entity that is independent of the jury's verdict. It is the conviction recording the jury's verdict that establishes the “guilt” of the prisoner. Like Bishop Berkeley who “maintained that material objects only exist through being perceived", the lawyer maintains that “guilt” exists in a criminal law context only when it is perceived as the concomitant of a conviction. To assert otherwise is to deny the presumption of innocence, a presumption that operates until the entry of a conviction rebuts it. (Footnote omitted.)
The point being made is that guilt, in the context that was being considered, meant guilt according to the criminal process, not guilt on some objective sense arising from proof of the physical and mental elements of the offence separate from the process that the criminal law prescribes.
So too here. It is not possible to talk about a decision which was open to the magistrate divorced from the legal process by which that decision was required by law to be reached. That process involves the admissibility of evidence, the burden and standard of proof, the satisfaction of the elements of the offence and all other components of a criminal trial required by law. It is therefore inappropriate to posit as a test for the application of s 219D(c) whether or not the verdict entered was correct or open. A decision will be one which “should not in law have been made” if there is a legal error which means that the order should not have been made.
Where the legal error involved a failure to give adequate reasons for the decision, that inadequacy arises because of the impossibility of properly determining the basis on which the decision was reached. Once it is accepted that an error in the process of a criminal trial may mean that a decision should not in law have been made, it must also be the case that inadequate reasons which deny to a reviewing court knowledge of the basis upon which a decision was reached must also mean that the decision should not in law have been made. For example, it could not reasonably be contended that the misunderstanding of the elements of an offence would indicate that a decision should not in law have been made, yet exclude from that concept a decision where the reasons were so inadequate that it was impossible to tell whether or not there was a misunderstanding of the elements of the offence.
A number of the submissions made on behalf of the appellant were directed to the proposition that a narrow interpretation of s 219D(c) should be adopted so as to not substantially expand the scope of review appeals available to the prosecution. The short answer to that is that the horse has bolted. Although s 219D(c) does not extend to review of factual issues, legal errors or mistakes have always been the subject of review under the section. There is nothing in the text of s 219D(c) that would indicate that it should be confined to some category of legal error but exclude others. An interpretation of para (c) so as to include procedural errors and a failure to give reasons does not involve any discernible expansion of the grounds of review. That grounds of review in paras (a)-(c) may involve overlapping formulations expressed in the language of the 1890s reflects, at the very least, the acquiescence of the Legislative Assembly despite amendments having been subsequently made to the grounds originally incorporated into what is now the MC Act in 1972.
Having regard to the fact that a purpose of s 219D(c) is to provide for a prosecution appeal against an acquittal which involves an error of law, s 30 of the HR Act has no relevant work to do. The provision of a prosecution appeal is either consistent with s 24 because that right is only engaged once the conviction or acquittal becomes final in the sense of no longer being subject to an appeal provided for by law or, alternatively, the provision of a prosecution appeal is a reasonable limit upon that entitlement provided for by s 28.
Finally, even if there was some misunderstanding of Liberato, the ground of appeal would not go anywhere in circumstances where there was no ground of appeal challenging the primary judge’s finding that the reasons were inadequate.
Where it is raised, the possible application of s 219F(5) needs to be considered on a review appeal. It remains a discretionary power (“may”) to be exercised when the court reaches a particular state of mind (“if the court considers that”). It is true that, if the court reaches the relevant state of mind, the discretion will be exercised in favour of dismissing the appeal. However, that does not compel a review of every aspect of the case in order to reach that state of mind.
That review appeals are generally limited to questions of law (as to which see [23] above) is relevant to the application of the proviso. There may be circumstances in which, notwithstanding the existence of an error of law, where it can be discerned having regard to the findings of fact or evidence in the court below, no substantial miscarriage of justice has occurred. However, the existence of the power in s 219F(5) does not mandate that the judge conduct a detailed review of the evidence in the case in order to determine whether or not there has been no substantial miscarriage of justice. To require that would be to substantially alter the nature of the appeal provided by the grounds specified in s 219D and turn a limited review based upon legal error into a substantial factual exercise, in circumstances where the appeal judge has none of the advantages of the magistrate who conducted the trial. It was clearly open to the primary judge to decline to conduct the kind of detailed factual review contemplated by the intricately crafted 15 pages of written submissions that were put forward about the evidence before the magistrate. This ground of appeal is not made out.