Barnes v Omant - [2019] TASSC 38

[2019] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Omant [2019] TASSC 38

PARTIES:  BARNES, Alisha (Senior Constable)
  v
  OMANT, Diane Lee

FILE NO:  3277/2018
DELIVERED ON:  30 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  20 March 2019
JUDGMENT OF:  Wood J
CATCHWORDS:

Magistrates – Appeal and review - Tasmania – Motion to review – Other matters – Refusal of application by prosecution to adjourn sine die – Intention to proceed on substitute charges – Proposed undertaking to not proceed with complaint – Prosecution sought adjournment rather than dismissal due to impact on substitute charges – Effect of plea of autrefois acquit and incontrovertibility rule – No denial of justice to prosecution.

State of Tasmania v Finnegan [2011] TASSC 74, 21 Tas R 116, referred to.
Sali v SPC Ltd (1993) 116 ALR 625; R v Carroll [2002] HCA 55, 213 CLR 635, considered.
Aust Dig Magistrates [1349]

Magistrates – Jurisdiction – General matters – Other particular cases – Complaint dismissed – Question of jurisdiction – No election – Particulars of complaint did not disclose a monetary value – Common ground that value of alleged fraud was $8,000 – Flawed for duplicity – Inherent in prosecution's position that magistrates court had jurisdiction – No miscarriage of justice.

Justices Act 1959 (Tas), ss 29(2), 71(1), 72(2) and 110(2)(ab).
Aust Dig Magistrates [1022]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  G Stevens
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  G Stevens

Judgment Number: [2019] TASSC 38
Number of paragraphs: 52

Serial No 38/2019
File No 3277/2018

SENIOR CONSTABLE ALISHA BARNES v DIANE LEE OMANT

REASONS FOR JUDGMENT WOOD J

29 August 2019

The respondent, Ms Diane Lee Omant, was charged on a complaint alleging a single charge of fraud contrary to s 253A of the Criminal Code. She pleaded not guilty to the charge and it was listed for hearing on 26 November 2018 before Magistrate Hay. Some weeks before the hearing date, the prosecution informed the defence in writing that the charge would not be proceeded with and that, on the hearing date, there would be an application to adjourn the complaint sine die. It was explained that the intention was to proceed with a new complaint that had recently been filed. The first listing of the new complaint was on 26 November, the same date and before the same court as the original charge was listed for hearing.
When the matters were called on, the prosecutor made the foreshadowed application to adjourn sine die the original complaint, stating that the prosecution would not be seeking to have it relisted. After hearing argument about the reason for the adjournment and the respondent's opposition to that course, the learned magistrate gave an oral decision refusing the adjournment. There was then further argument as to whether the court had jurisdiction to dismiss the complaint. The learned magistrate ruled that he had jurisdiction and dismissed the complaint. The prosecution now appeals both the decision refusing the application to adjourn and the decision dismissing the complaint.
The submissions that were made before Magistrate Hay on 26 November referred to the following matters. The prosecutor informed the learned magistrate that it was intended that the original complaint would not proceed to hearing and that it be overtaken by the new complaint which was to be pursued relating to the same conduct. The new complaint provided for nine new charges of dealing with property suspected of being proceeds of crime contrary to s 66B of the Crime (Confiscation of Profits) Act 1993. They were indictable charges and had to be dealt with in the Supreme Court. The prosecutor referred to the new complaint as the "substitute" charges. He stated that the Crown had instructed that new charges be laid and that the complaint listed for hearing be adjourned sine die. The prosecutor explained to the court that he sought to adjourn the single fraud charge rather than have it dismissed so that there could be no argument at a later date that a plea of autrefois acquit applied as a bar to the new charges.
The application to adjourn the fraud charge was opposed. The arguments on the respondent's behalf were that the court was seized of the charge, and the respondent was "entitled to her trial and her trial date is today". The respondent's counsel urged the learned magistrate to dismiss the complaint if the prosecution had no evidence to offer. The respondent argued that the proposed course of adjourning sine die the original complaint was unfair, and that ultimately if the respondent was acquitted in the Supreme Court of the new charges, the prosecution could relist the original summary charge and pursue that charge, exposing the respondent to double jeopardy in the sense of the risk of conviction even though she had been acquitted of charges that involved the same allegations.
The learned magistrate heard argument from the respondent regarding the prospect that tendering no evidence on the single fraud charge may be regarded as a complete acquittal potentially giving rise to a plea of autrefois acquit or a stay of proceedings invoking principles of double jeopardy. The argument canvassed State of Tasmania v Finnegan [2011] TASSC 74, 21 Tas R 116. The respondent referred to principles distilled by the High Court in R v Carroll [2002] HCA 55, 213 CLR 635 which he submitted had application, highlighting the principle of finality of proceedings. In essence he argued that this principle required the complaint be heard and determined. If that did not occur, in the event that the respondent was acquitted in the Supreme Court of the new charges, the complaint could be re-agitated and become an instrument of oppression. He noted that it would be a different matter entirely if there had been no plea on the complaint. By pleading not guilty, the respondent put the prosecution on notice that they were required to prove their case.
The prosecutor responded by referring to the public interest, that the wrong charges were laid by the police officer, and that not allowing the adjournment would potentially prevent the Crown from adducing evidence that is common to both complaints. A concern about costs could be remedied by an application for costs. The prosecutor proposed that the prosecution provide an undertaking that the prosecution would not proceed on the fraud charge. The prosecutor stated in frank terms that the reason the prosecution was not prepared to tender no evidence was because of the case of Finnegan and the potential development that the prosecution not be able to proceed on the new charges. In the course of the submissions, the prosecutor alluded to the original fraud charge as being flawed for reasons of duplicity.

The magistrate's rulings refusing an adjournment and dismissing the complaint

His Honour referred to the authority of Finnegan and quoted from Blow J (as he then was) at [4]:
"There is a body of High Court authority that makes it quite clear that, when there is an acquittal in relation to a charge of a crime or offence, the defendant or accused person who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings and that, on a subsequent criminal trial, the acquittal in the earlier proceedings is incontrovertible."
The magistrate referred to the question also identified by Blow J as to whether the same principle applies in relation to an acquittal that comes about as a result of a prosecutor offering no evidence, and when that occurs not in a jury trial but in the Magistrates Court. His Honour quoted from the judgment of Blow J at [8]:
"…, at least as a general rule, when a magistrate acquits a defendant as a result of a prosecutor informing the magistrate that no evidence will be tendered, then that defendant in subsequent criminal proceedings is entitled to the full benefit of the acquittal, and that therefore no evidence may be adduced in those subsequent criminal proceedings of the defendant doing acts which could have led to a conviction on the charges which have been dismissed."
The learned magistrate also referred to a Magistrates Court decision of Lusted v Jenkins [2010] TASMC 12. Magistrate Pearce (as he then was) noted that the rule against double jeopardy of autrefois acquittal extends to summary proceedings and, incidentally, that there was no statutory authority for withdrawal of a complaint in Tasmania.
The magistrate then asked the rhetorical question whether it was fair in all the circumstances to adjourn the hearing. His Honour stated as follows:
"It seems very clear to me that under no circumstances is the prosecution on the first complaint against the defendant likely to proceed. If I adjourn it to another date for hearing, which is really – if I grant the adjournment, is really all I can do, apart from the adjourning to a date to be fixed, I suppose, but if I adjourn it to another date, on everything that I've been told today, there is really no prospect of that complaint being heard."
After an exchange with the prosecutor, the magistrate continued:
"The prosecutors submits this afternoon that if I do not adjourn it to a date to be fixed then it would be contrary to the public interest because it would then, probably, possibly, mean that the second complaint, alternative type of complaint, may not then be able to proceed because of the requirements of Finnegan's case – well, I suppose in some ways that's a 'so be it' situation.
…
I'm just not satisfied that I should adjourn today, I cannot see any utility in adjourning it today. The defendant is present, is ready, willing and able to proceed to a hearing, and whilst time is short, the court has many other things in its list, the matter is listed today, it's a hearing court, there are backup matters to it, and on the face of it, it can proceed. This is not a situation where the other principles at common law decisions apply about adjournments that might otherwise be relevant, because here I just cannot see, as I'm repeating, that there's just no utility in me adjourning the application today because it's unlikely , highly unlikely, that it will be heard on the next occasion if I adjourned it until tomorrow or next week or next month.
So, on that basis, I decline the adjournment application."
There were then further arguments arising from the particulars of the complaint and whether the complaint could be dismissed. The prosecutor then noted that the complaint did not particularise an amount alleged. He raised the issue of whether the court had jurisdiction in relation to the hearing. It was then submitted by the prosecutor that it was indictable and that the Magistrates Court has no jurisdiction to hear this matter. In a case where the value of the fraud is unknown there was no election available.
Mr Stevens argued that the value of the alleged fraud was known, it just had not been particularised. The complaint had not been properly drawn and should be dismissed.
After some further submissions that descended into speculation about the value of the charge, the prosecutor did not add any further points. The learned magistrate refused the "second application that the complaint represents an indictable complaint."
The prosecutor then indicated that there would be no evidence forthcoming on the single charge of fraud. The learned magistrate then dismissed the complaint. The new complaint was before the court and the respondent entered a plea of autrefois acquit on each count. The complaint was committed for trial to the Supreme Court where, in due course, the plea was to be determined. That outcome of that plea and whether it would bring an end to the indictable charges has not been determined by the Supreme Court.
The State now appeals the decision of the learned magistrate dismissing the complaint on two grounds:
"1The learned magistrate erred in refusing to grant an adjournment.
2Alternatively, the learned magistrate erred in that he had no jurisdiction to dismiss the complaint."

Ground one: The arguments on review

The applicant relied on a passage from Sali v SPC Ltd (1993) 116 ALR 625 where Brennan J (as he then was), Deane and McHugh JJ said at 631:
"It is true that it is only in extraordinary circumstances that the interests of justice would be served by the refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings."
It was argued for the applicant that the practical effect of refusing the adjournment in this case may have been the termination of the new indictable charges, having regard to the implications of the plea of autrefois acquit being entered with respect to the new complaint. In other respects it was not in the interests of justice to refuse the application for an adjournment noting:
·     This was the first time that the original charge had been listed for hearing.
·     This was a complex fraud, which, since the matter was listed for hearing, was reviewed and the original charge determined to be inappropriate. The alternative charges were laid in advance of the hearing.
·     The new charges were serious.
·     As articulated before the learned magistrate, there was no specific prejudice to the respondent flowing from an adjournment, nor was potential prejudice readily apparent.
·     An undertaking was offered that the original charges would not be proceeded with and no evidence offered once the new charges were finalised.
· Any prejudice could have been cured by an order for costs "thrown away" pursuant to s 77(7) of the Justices Act 1959.
The respondent argued that the learned magistrate was not in error in refusing the adjournment. The respondent relied heavily on the principle of finality. The respondent had pleaded not guilty. The matter was listed for hearing. The complaint was defective. The respondent was entitled to have the complaint heard and determined. In essence, the adjournment application was for a collateral purpose, not so that the prosecution could get its case in order, but to facilitate the prosecution of the respondent on the new complaint. It was submitted that the application for this purpose was an attempt to abuse the process of the court. While the prosecutor offered to give an undertaking to dismiss the complaint, that offer was without substance. The prosecutor was a police officer and the undertaking would be unenforceable. It was submitted that there was no unfairness to the prosecution in dismissing the complaint: the complaint could not be proved, the prosecution was using the defective complaint for a collateral purpose of avoiding the procedural difficulties of a plea of autrefois acquit.

Ground one refusing to adjourn sine die: a denial of justice to the prosecution?

The appeal is from an exercise of a judicial discretion. In order for the appeal against an exercise of discretion to succeed, it is not enough that the appeal court would have taken a different course. Appellate courts are reluctant to interfere with an order made in the exercise of the judicial discretion. It must appear that some error has been made in exercising the discretion. Here the error is said to be a non-specific error that is to be inferred from the determination made. That error may be shown if upon the facts the course taken is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504-505.
The principles governing appellate review of the exercise of the discretion to refuse an adjournment were stated by Brennan, Deane and McHugh JJ in Sali v SPC Ltd at 628-629. An appellate court will be slow to interfere with the discretion of a trial judge, but will do so if the refusal will result in a denial of justice to an appellant and the adjournment will not result in any injustice to any other party. The ultimate aim of a court is the attainment of justice: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 per Dawson, Gaudron and McHugh JJ at 154. For an application of these principles see Hamilton v Littlejohn [2006] TASSC 109.
It can be seen from the applicant's arguments that there were pragmatic reasons for granting the adjournment of the original charge rather than dismissing it. The prosecution was not going to proceed with it and an adjournment would avoid a strategic plea of autrefois acquit to the new charges when there had not been a hearing or a determination of the evidence. There is, at least, some superficial appeal in the considerations advanced by the applicant. However, Mr Steven's submissions for the respondent have persuaded me that there are more fundamental considerations at stake.
The question on review is whether, in light of the considerations advanced by the applicant, the refusal to adjourn the original charge resulted in injustice to the prosecution, giving rise to clear error. However, before focussing on this question and the "injustice" highlighted by the applicant, it is necessary to deal with some broader considerations.
In determining the application to adjourn the complaint sine die, the learned magistrate had to consider the consequences of granting the adjournment for both the prosecution and the defence. The applicant points to a lack of prejudice to the defence, noting that an undertaking could be provided by the Crown that the original charge would not be relisted for hearing. However, this is no answer to the prejudice that would arise if the prosecution was to pursue the original charge after an acquittal on the new charges. An undertaking by Crown counsel that the charge will not be proceeded with is not regarded by the courts as providing an adequate safeguard against an abuse of process. In Connelly v Director of Public Prosecutions [1964] AC 1254, the House of Lords rejected the Crown's argument that it could be trusted not to abuse its positon by bringing further proceedings related to the same facts on which an accused person had been convicted or acquitted. Lord Devlin at 1354 stated: "The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused." See Carroll per McHugh J at [131].
It should be pointed out that in the event that the original charge was relisted and pursued, there would be remedies available to the respondent to avoid an abuse of process. If the prosecution sought to pursue the original charge after an acquittal of the new charges in the Supreme Court, the principles of double jeopardy could be invoked in the Magistrates Court.Pursuant to s 74A(5)(c) of the Justices Act, a defendant may plead that no further proceedings may be had on the complaint. While it is the accepted position that the Magistrates Courts do not have an inherent jurisdiction to stay proceedings, (Visser v Hodgetts [2002] TASSC 44, 10 Tas R 422), there would be power, at least, to adjourn the proceedings sine die. Notwithstanding the existence of remedies to defeat the original charge if later pursued, the point can validly be made that there is nonetheless a consequence to the respondent that weighed against adjourning the original charge. Why should the respondent be subject to the stress of that potentially occurring and, in that eventuality, have to face the cost and inconvenience of resisting the prosecution when the stated intention of the prosecution is not to pursue the original charge?
The arguments for an adjournment presuppose that a plea of autrefois acquit in relation to the new indictable charges may be available to the respondent and upheld by the Supreme Court if the original charge were dismissed, rather than adjourned sine die. However, whether that would be the result is far from clear. At common law the plea of autrefois acquit has a relatively narrow application, and is not available when the subsequent offence contains elements not included in the first offence: Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [18], [24], [28] and Gummow J at [63]. The effect of s 355(1)(b)(i), (iii), (iv) and (v) of the Criminal Code is wider in scope than the common law in some respects. However, the section speaks of an "acquittal", rather than a dismissal, and arguably there is ambiguity about the meaning of "acquittal" and whether a dismissal of a charge because it is defective amounts to an acquittal.

As noted, the arguments for an adjournment before the learned magistrate referred to the decision of Finnegan. The arguments referred in general terms to a plea of autrefois acquit and the case of Finnegan. It should be noted that Finnegan was not dealing with the availability of the plea of autrefois acquit but was concerned with the admissibility of evidence and the principle of the incontrovertibility of court decisions. While the plea of autrefois acquit and the incontrovertibility rule each have a different application in the trial process, they are both manifestations of the broad principle of double jeopardy: Carroll per Gleeson CJ and Hayne J at [8]–[9], Gaudron and Gummow JJ at [84]–[85]; Pearce per McHugh, Hayne and Callinan JJ at [9].
In Finnegan the Crown sought to adduce evidence of the accused doing acts that appeared to be the subject of three complaints. These complaints had been dismissed because the prosecution had offered no evidence. Evidence of those acts was sought to be adduced as relationship evidence and/or tendency evidence on a trial of wounding.
At [4], Blow J referred to a body of High Court authority that made it clear that when there is an acquittal in relation to a charge of a crime or offence, the accused or defendant who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings. On a subsequent criminal trial, the acquittal in the earlier proceedings is incontrovertible. His Honour referred to Garrett v The Queen (1977) 139 CLR 437, R v Story (1978) 140 CLR 364, and Rogers v The Queen (1994) 181 CLR 251. The question before his Honour was whether the same principle applies in a situation where the acquittal occurred, not because a jury having heard evidence was not satisfied beyond reasonable doubt, but where the acquittal came about as a result of a prosecutor offering no evidence. His Honour considered a decision of the Victorian Court of Appeal in R v Young [1998] 1 VR 402 and concluded that as a general rule when a magistrate acquits a defendant as a result of a prosecutor informing the magistrate that no evidence will be tendered, then that defendant in subsequent proceedings is entitled to the full benefit of the acquittal. Therefore no evidence may be adduced in those subsequent criminal proceedings of the defendant doing acts which could have led to a conviction on the charges which have been dismissed. The implications of Finnegan in this case may be to prevent evidence being admitted which was the subject of the original charge. This could be fatal to the trial of the new charges.
Significantly though, Blow J noted that there were exceptions to the general rule. One exception has particular relevance here. His Honour referred to R v VN [2006] VSCA 111, 15 VR 113 and the principle that emerges from that decision that it is proper to adduce evidence that formed the basis of dismissed charges if the charges were dismissed because they were defective. In determining whether evidence of those other occasions fell within this exception and was admissible, his Honour at [21] posed the test of whether the accused could lawfully and properly have been convicted if evidence had been adduced in relation to any or all of the charges. As he could have been convicted, the evidence was admissible.
The facts here are not on all fours with Finnegan. Here, the learned magistrate was informed the original complaint was faulty and that new charges would be pursued instead. Indeed, the position was plain for all to see; the new complaint was before the court.
I do not need to decide the prospects of an argument succeeding relying on an extension of the principle articulated in Finnegan. I will proceed on the basis that the magistrate was confronted with the prospect that the defence could take advantage of a plea of autrefois acquit and also the possibility that the principle in Finnegan may apply if the original charge was dismissed, rather than adjourned sine die.
I proceed now to examine the critical question of whether there was an injustice to the prosecution arising from the learned magistrate's decision refusing the adjournment. As noted, Mr Steven's submissions on review drew on general principles as supporting the dismissal of the original charge, particularly the public interest in having cases finalised. It was submitted that it was contrary to fundamental principle to adjourn a prosecution which cannot be proved and is not intended to be pursued solely for the purpose of enabling the respondent to be prosecuted on other charges. Mr Stevens took the Court to the principles that he had relied upon before the learned magistrate, outlined in the joint judgment of Gleeson CJ and Hayne J at [21]-[24] in the High Court case of Carroll.
The case of Carroll involved the prosecution bringing a charge of perjury regarding evidence an accused gave at his trial for murder that he had not killed the victim. He had been acquitted of the murder. It was held by the High Court that the prosecution had sought to controvert the acquittal on the charge of murder, given that the charge of perjury raised the same ultimate issue as that which had been raised in the trial.
In the passage relied upon by Mr Stevens, Gleeson CJ and Hayne J addressed matters under the heading "Some fundamental underpinnings of the criminal law." It is said that these "underpinnings" are important as values to which the criminal law can be seen to give effect. That is not to suggest that they would provide the answer to an issue before the court by deductive reasoning. It was explained at [24] that: "They are values that may pull in different directions. There are, therefore cases to which a balance must be struck between them …".
There are four fundamental considerations that may be found at [21]-[22]. Two of them are "that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone's precept 'that it is better that ten guilty persons escape, than that one innocent suffer' … may find its roots in these two considerations."
Another general principle at [22] is that "Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression". Further, at [22], "finality is an important aspect of any system of justice ... and the status conferred by acquittal is important". See also Gleeson CJ and Hayne at [49] and Gaudron and Gummow JJ at [86]; Pearce v The Queen per McHugh, Hayne and Callinan JJ at [10], Gummow J at [53] and [54].These four principles were drawn on by Blow J in Finnegan in his ruling and regarded by his Honour as supporting the extension of the incontrovertibility rule analysed in Carroll.
The judgment in Carroll went on to note at [23] that these four considerations are not the "only considerations that find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it".
In this case, the "injustice" to the prosecution is said to arise from the consequence of dismissing the complaint, rather than adjourning it sine die. On the new charges the respondent may enter a plea of autrefois acquit and if successful, may obtain a permanent stay or dismissal of the new charges. Having regard to the authority of Finnegan, another potential consequence may be a ruling that evidence is inadmissible. The existence of either remedy will turn on the application of legal principle with regard to double jeopardy manifested in the plea of autrefois acquit and the incontrovertibility rule.
It is argued for the applicant that seeking to avoid the plea of autrefois acquit does not amount to an inappropriate tactic by the prosecution. Furthermore, the prosecution was entitled, in light of Finnegan, to protect its position, as a party in the litigation, so as to preserve the ability to use the evidence from the original charge in the prosecution of the new charge. It did not do so by deliberate, improper manipulation of the court's processes: R v Derby Crown Court; Ex Parte Brooks (1984) 80 Cr App R 164. There was no avoidance of due process, and the application was not inappropriate.
However, the correctness of the prosecution's application is not the issue. It may have been legitimate for the prosecution to seek an adjournment of the charge. The issue is rather, whether the court, entrusted with the fundamental values identified, in exercising its discretion should have granted the application. More precisely, the question is whether there was error in not granting the application and whether the discretion resulted in an injustice to the prosecution. Could it be said that the prosecution suffered an injustice by being exposed to a plea of autrefois acquit or an argument relying on the extended principle in Finnegan?
The answer to that question is exposed by a consideration of the fundamental principles underlying the plea, the incontrovertibility rule and, more generally, double jeopardy. These principles are the avoidance of oppressive prosecution by the State and the desirability of finality: McHugh J in Carroll at 672, Pearce at [10].
To have granted the application to have the complaint adjourned sine die for the reasons sought, would endorse the notion that the interests of justice lie in avoiding a plea of autrefois acquit or the incontrovertibility rule. In essence, the so called injustice to the prosecution is that it is precluded from sidestepping the possible availability of a remedy invoked by defendants to address injustice.
I accept Mr Stevens' argument that the refusal to adjourn the complaint is supported by the "fundamental underpinnings of the criminal law" identified in Carroll. The charge was flawed, the prosecution intention was not to proceed with it, and the court was informed of that. Justice should take its ordinary course and there ought to be finality.
Furthermore, there is another reason why there was no prejudice to the prosecution in the approach taken by the learned magistrate. The question of the impact of the plea of autrefois acquit in relation to collateral proceedings is a matter for this Court. For the magistrate to have acceded to the prosecution's request is for the Magistrates Court to accept the proposition that the law may operate in a way that will be unfair to the prosecution. I ask rhetorically what unfairness is there when the court will determine the availability of a remedy in accordance with law, underpinned by fundamental values protecting the interests of justice? In the event of error by the court in determining that question, the prosecution has a right of appeal to address any miscarriage of justice. In the ordinary course of criminal proceedings, the prosecution's interest is fully and adequately protected. When seen in this light, the consequences to the prosecution ought not to have been recognised by the court as a prejudice. Further, I cannot see that the prosecution's legitimate interests in having accused persons brought to justice collides with the approach taken by the learned magistrate.
The learned magistrate's decision refusing to adjourn sine die the complaint did not give rise to any injustice to the prosecution. Having referred to the case of Finnegan and that this case might mean that the new charges would not be able to proceed, his Honour succinctly stated: "so be it". His Honour was allowing justice to take its course. His determination conformed with legal principle, and it was in accordance with the interests of justice. The determination was untainted by error and the ground of review fails.

Ground 2: jurisdiction to dismiss the complaint?

This ground may be dealt with in brief terms. The original charge alleged a fraud contrary to s 253A of the Criminal Code. The particulars are:
"You are charged with between the 1^st January, 2016 and the 1^st October, 2017 at Rosny in Tasmania, you did, with intent to defraud, cause detriment, pecuniary or otherwise for any person, namely Bupa Pty Ltd by you did receive funds into your bank account from Bupa Pty Ltd that you were not entitled to and kept some of the funds and transferred the rest into the bank account of Oliva Rose RODGERS."
Pursuant to s 72(1) of the Justices Act, if the value of the fraud in charges contrary to s 253A of the Criminal Code is between $5,000 and $20,000, defendants may elect to be dealt with in the Magistrates Court. Section 72(1) of the Justices Act provides:
"Other crimes triable summarily
72(1) Where a person is brought before justices upon a complaint for an offence–
…
(ca)under section 253A of the Criminal Code , if the value of property obtained or delivered, or the benefit gained or detriment caused, exceeds $5000 but does not exceed $20 000; …
the justices, as specified in section 55 or 58 and in the prescribed form of words or in words of like import, may ask the defendant if he is willing to be tried or sentenced by the justices instead of by jury and, if that person, or, if he is under the age of 17 years, his parent or guardian, does not object to his being tried or sentenced by the justices, the section creating the offence shall be deemed to have created a simple offence and the complaint shall be dealt with accordingly, subject to the provisions of this section."
The respondent in this case did not elect to be dealt with in the Magistrates Court. If the value of the alleged fraud in her case was between $5,000 and $20,000, the Magistrates Court did not have jurisdiction.
It was argued for the applicant that it was "common ground" that the value of the benefit gained was $8,000. The particulars of the substituted nine charges reflect this as a total amount. Accordingly, the value exceeded the jurisdiction of the Magistrates Court, noting that the respondent had not elected to be death with summarily, and the learned magistrate had no jurisdiction to dismiss the complaint.
As can be seen, the particulars of the charge did not disclose a monetary value for the fraud, and taken at face value did not disclose that the magistrate lacked jurisdiction. The respondent argued that if no amount is specified, it should be assumed that it is either a nil amount, or, given the prosecutor's position in acceding to the original charge being listed for hearing in the Magistrates Court, it could be inferred that the Magistrates Court had jurisdiction and that it was appropriate for the learned magistrate to proceed on that basis. The respondent also highlighted the stance of the prosecutor in being prepared to give an undertaking that the original complaint would be relisted in the future in order to be dismissed.
As noted, the applicant's position is that what was "common ground" about the value of the fraud should determine the question of jurisdiction. However, even if that is the correct approach, it does not assist the applicant in this case. It was also common ground that the original charge was duplicitous in that it involved a rolled-up count instead of nine individual counts. Section 29(2) of the Justices Act, requires that where several matters of complaint are joined in one complaint, each matter of the complaint should be set out in separate numbered paragraphs. It appears from the arguments that this had not been done and that it was the flaw that had led to the new charges being laid. If the charge was duplicitous, and it seems there is no doubt about that, the prosecution may be put to an election pursuant to s 29(5) of the Justices Act and be required to proceed with "one matter of complaint". It is "common ground" that any value attaching to a single occasion, was less than $5,000 (all nine substituted charges particularised amounts of less than $5,000) and within the court's jurisdiction. Accordingly, on the basis of what was common ground, s 71 of the Justices Act applied and the court had power to dismiss the charge. Having regard to the particulars, the question of jurisdiction was unclear. However, noting what was common ground and the position of the prosecution that the Magistrates Court had jurisdiction, particularly noting that the prosecutor informed the court that the court would be requested in due course to dismiss the charge, it is arguable that error by the learned magistrate has not been disclosed. Regardless, there has been no miscarriage of justice, enabling the disposal of this ground pursuant to s 110(2)(ab) of the Justices Act. This ground of review also fails.
The motion to review should be dismissed.