Brereton v Sinclair

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6170 of 1998

PETER CAMPBELL BRERETON	Appellant
v.

Respondent STUART	SINCLAIR	First
and

THE MAGISTRATES' COURT OF VICTORIA AT	Second Respondent
RINGWOOD

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JUDGES:	TADGELL, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2000
DATE OF JUDGMENT:	3 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 211

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PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Whether declaratory and prohibitive orders final or interlocutory – Extension of summons for summary offence – Whether compliance with statutory requirements – Standard of proof to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B.M. Dennis	Acting Victorian Government Solicitor
For the First Respondent	Mr M.J. Croucher	Fernandez Canda Gerkens
For the Second Respondent	No appearance
TADGELL, J.A.:

I have had the benefit of reading in draft the reasons prepared by Chernov, J.A. and concur generally in them.
I agree in particular that an appeal against the declaratory and prohibitive orders made below cannot be properly brought without leave. They were orders “in an interlocutory application” in terms of s.17A(4)(b) of the Supreme Court Act 1986, as that expression was interpreted in Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[1]. In accordance with the authorities to which Chernov, J.A. has referred the criterion to be applied is whether the orders were such that they finally determined the rights of the parties in the proceeding in the Magistrates’ Court that had been begun by the appellant’s filing a charge against the respondent. Plainly, the orders made in the Supreme Court put an end to that proceeding but, to adapt the words of Gibbs, C.J. in Computer Edge Pty. Ltd. v. Apple Computer Inc.[2], they did not finally determine, in a legal sense, all the rights of the parties that were at issue in that proceeding. On the contrary, the orders of which the appellant now seeks to complain had the effect of getting rid of the proceeding in the Magistrates’ Court without determining the rights of the parties to it. The authorities make it clear that, in determining whether or not a judgment or order is final or interlocutory (or, more accurately, in the words of s.17A(4)(b) of the Supreme Court Act, it is one “in an interlocutory application”), regard is to be had to the legal, rather than to the practical, effect of the judgment or order.
[1] [1997] 2 V.R. 49.
[2] (1984) 54 A.L.R. 767, 767-8.
Leave to appeal against the orders below being required, it should be refused for the reasons assigned by Chernov, J.A.

CHARLES, J.A.:

I have had the benefit of reading the judgment prepared by Chernov, J.A. I agree that leave to appeal against the orders below is required, and that it should be refused for the reasons given by his Honour.

CHERNOV, J.A.:

On 10 December 1997, the applicant, a policeman, (“the informant”) filed a charge and caused a summons to be issued by the registrar of the Magistrates’ Court at Ringwood alleging that, on 12 October 1996, the first respondent (“the respondent”) unlawfully assaulted Natika Jane Gough contrary to s.23 of the Summary Offences Act 1966. The summons provided that the case would be heard at the Magistrates’ Court at Ringwood on 5 February 1998 (“the mention date”). This was the second summons that the informant caused to be issued against the respondent in respect of the alleged assault. The first was issued in May 1997 but was never served and eventually, it lapsed.
The procedure for the commencement of a criminal proceeding, the issue and extension of a summons relating to the charge, its service on the defendant and the hearing of it, are dealt with in Sub-Division 1 of Division 2 of Part 4 of the Magistrates’ Court Act 1989 (“the Act”). The point to note about the relevant provisions is that they are couched in mandatory terms. Thus, s.33(1) provides that “A summons to answer a charge must direct the defendant to attend at the proper venue on a certain date and at a certain time to answer the charge.” Sub-section (2) permits the informant to make application to the appropriate registrar to extend the mention date in the summons as of right but only before the summons is served and before or within one month of the mention date. For present purposes, the principal issue in the matter before the magistrate was whether the mention date in the summons in question was validly extended by the appropriate registrar on the application of the informant. What was known (from the face of the summons) was that the mention date was extended prior to 3 April 1998 by the deputy registrar of the Magistrates’ Court at Ringwood to 23 April 1998, but neither the summons nor the court file disclosed the date on which that occurred or whether it was within the period prescribed by the legislation.
The summons, showing the new mention date, was eventually served on the respondent and when the matter came on for hearing at the Magistrates’ Court his counsel, when announcing his appearance, told the court that he appeared only conditionally and under protest because it would be his submission that the summons was defective and, therefore, the charge should be dismissed. It follows that no question can arise of the respondent having waived any defect in the proceeding by reason of such appearance; it should be said that it was not suggested on behalf of the applicant that any such waiver arose. Counsel then elaborated on his contention that the mention date had not been validly extended. He relied principally on the fact that the summons on the court file was stamped with the date 7 April 1998 which, he claimed, showed that the extension was or might have been made on that date. (Having regard to all of the evidence that was placed before the magistrate, it seems that the date was noted on the summons when the court received it from the informant after he had posted it to the respondent. His affidavit of service is on the reverse side of the summons.) Given the submission put to him at the outset of the hearing, the magistrate examined the court file and spoke with the registrar (who had been called into court) concerning the matter. After hearing further brief submissions from the respondent’s counsel and after again examining the court file the magistrate said that he did not know when the summons was extended or whether it had been extended within time. He said that he wanted to hear from the informant on this issue. Since the informant was not available to give evidence on that day, the further hearing of the case was adjourned to a mutually convenient time.
On the adjourned date, the magistrate heard the informant’s evidence concerning the extension of the mention date and, after hearing further submissions and after considering the matter, he ruled on 1 June 1998 that the mention date was validly extended and that he proposed to hear the charge.
At the request of the respondent, however, he adjourned the matter to allow the respondent to apply for a judicial review of the decision. By an originating motion filed on his behalf which was supported by an affidavit sworn by him on 31 July 1998, the respondent sought relief in the nature of certiorari and prohibition pursuant to rule 56 of the Supreme Court Rules on the principal ground that the mention date was not validly extended and that, therefore, the summons is invalid and the magistrate should not proceed to hear the charge.
The originating motion came on for hearing before a Judge of the Trial Division who, on 9 December 1998, declared that the summons had lapsed on the ground that the mention date had not been validly extended, and ordered that the magistrate be “restrained from further hearing the Summons”.
The informant has purported to appeal against that order as of right. The respondent, however, foreshadowed in the written submissions filed on his behalf that he would contend that her Honour’s judgment is interlocutory for the purposes of s.17A(4)(b) of the Supreme Court Act 1986, that leave is required before the informant can agitate the appeal and that, in the circumstances, leave should be refused. Notwithstanding this warning, no summons was filed on behalf of the informant seeking leave to appeal against her Honour’s order should this Court consider that it is interlocutory. Mr. Dennis who appeared before us for the informant, submitted that her Honour’s order is final and not interlocutory. He was effectively given leave to argue that, if the Court considered that the order is interlocutory, leave to appeal should be granted.
I turn first to consider whether her Honour’s order is final or interlocutory. The distinction between final and interlocutory orders is far from certain. The endeavour to determine into which category a particular order falls often involves the difficult process of characterising it and trying to reconcile conflicting authorities where “no golden thread of logic runs through the cases”[3]. Brooking, J.A. in Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[4] said that, in determining whether an order is final or interlocutory, regard should be had to “decided cases specifically in point or, in the absence of such a decision, to rules which are now established by decisions of the High Court”. There are certain categories of orders which have been recognised by the courts as being interlocutory. For example, it has been accepted that an order striking out or dismissing a proceeding on the ground that it is scandalous, vexatious or an abuse of process or because it discloses no reasonable cause of action, is interlocutory (Hall v. Nominal Defendant[5]; Little v. The State of Victoria[6] and Lucas v. Public Transport Corporation Victoria[7]). It has also been held that an order extending time under s.23A of the Limitation of Actions Act is interlocutory (Border[8]) and so is a refusal to set aside a default judgment (Hall[9], applied in Carr v. Finance Corporation of Australia Ltd (No.1)[10]). Similarly, it seems that where the order is ancillary to the main proceeding (in the sense that it deals with a matter other than one which is the subject of the dispute in the present proceeding) it is ordinarily treated as interlocutory. Thus, in Hornsby v. Kaschke[11] the judge quashed the order of a magistrate requiring the informant to deliver to the defendant the relevant breath analysing instrument. It was held[12] that the order was interlocutory because it was ancillary to the principal proceeding in the Magistrates’ Court which, so far as is relevant, was concerned with the allegation that the appellant was in charge of a motor vehicle while the level of alcohol in his blood was above the prescribed limit. In Brincat v. R.[13] it was held that an order for the transfer of a prisoner to Western Australia under the relevant legislation was interlocutory because it was merely a step in the process whereby the applicant was to be tried in that State. The order was necessarily ancillary to the principal matter, namely, the prosecution of the applicant.
[3]              as Kirby, P. put it in Southern Cross Exploration NL v. Fire & All Risks Insurance Co. Ltd. [No.2] (1990) 21 N.S.W.L.R. 200 at 207
[4] [1997] 2 V.R. 49 at 52
[5] (1966) 117 C.L.R. 423 at 439-440 per Taylor, J.
[6] [1998] 4 V.R. 596 at 599 per Callaway, J.A.
[7] [2000] VSCA 35
[8]              at 50 per Brooking, J.A.
[9]              at 440
[10] (1980) 147 C.L.R. 246 at 248 per Gibbs, C.J.
[11] [1999] 3 V.R. 27
[12]             at 28-29 per Callaway, J.A. (with whom the other members of the Court agreed)
[13]             unreported, Full Court of the Supreme Court of Victoria, 17 March 1995
In Brygel v. O’Keefe[14], however, it was assumed by Winneke, P. (with whom Hayne and Charles, JJ.A. agreed) that an order refusing prerogative relief in the nature of certiorari under O.56 of the Supreme Court Rules was a final, rather than an interlocutory, order. In that case the appellant had been refused a certificate which would permit him to drive a commercial passenger vehicle. He applied to the Supreme Court for a writ of certiorari. The application was made out of time, and the judge at first instance was not satisfied that “special circumstances” existed for extending the time within which the appellant had to apply, and accordingly dismissed the application. The appellant then appealed to the Court of Appeal against the refusal of prerogative relief. An issue arose as to whether the order refusing the prerogative relief was final or interlocutory such that the applicant required leave to appeal from the order. The President said[15]:
“For my own part, I have some doubt that a court’s order dismissing an originating motion on behalf of a plaintiff seeking certiorari is an interlocutory order. It would seem to me to be more in the nature of an order which finally disposes of the rights of the parties in the particular litigation that exists between them. That does not, of course, mean that the appellant is to be barred from making further applications for driver’s certificates pursuant to s.156 of the relevant legislation. I am, thus, prepared to assume that the appellant does not need the leave of this Court to appeal against the order of
Beach, J.”[16]
[14]             Court of Appeal, unreported, 17 April 1997
[15]             at p.7
[16]             In Hornsby Callaway, J.A. distinguished Brygel on the basis that it was concerned with an order that refused prerogative relief rather than an order that granted such relief, as in Hornsby and the present case. His Honour (at 28) went on to say that “[i]t may well be that such refusal finally determined the rights of the parties in a principal cause.” See, however, Monash University v. Berg [1984] V.R. 383 at 386 in which it was held by a Full Court of the Supreme Court of Victoria that an order refusing to grant a writ of certiorari is an interlocutory order. In Berg the Full Court referred to Coles v. Wood [1985] 1 N.S.W.L.R. 723. In that case an application had been made for, inter alia, an order quashing a search warrant. Hutley, J.A. (with whom Moffit, P. and Samuels, J.A. agreed) held (at 727) that “[a]n order dismissing proceedings to quash a search warrant does not determine any rights; it does not preclude another application for the same order; nor does it stand in the way of any other kind of challenge to the validity of the warrant . . . Orders in the nature of the writ of certiorari are discretionary in the sense that a court is entitled according to proper principles to consider whether there is any utility in making the order. As an order can be refused on the grounds of utility and utility can easily change, any order simply dismissing an application for such a writ is necessarily interlocutory.”
There are other categories of orders which have been treated by the courts as being interlocutory or final. Most of those categories are collected in Williams’ Supreme Court Practice at [I 64.01.445] and [I 64.01.450]. But it seems that there is no decided case which has determined whether an order such as the one under attack is interlocutory or final, and neither party has suggested that there is such authority. Thus, it is necessary to go to the more general rules which have been developed by the High Court on this issue.
In my view, the usually accepted test for determining whether an order is final or interlocutory is whether it finally determines the rights of the parties in the principal cause between them having regard to the legal, rather than the practical, effect of the judgment or order (Hall[17], Licul v. Corney[18] and Carr[19]. See also, for example, Little[20]; Christie v. Baker[21]; Kay v. Attorney-General for Victoria[22]; Southern Cross[23]; Meddings v. The Council of the City of Gold Coast[24]). Notwithstanding that this test was developed in the context of civil proceedings, it is applicable to criminal proceedings or to orders that relate to criminal proceedings (X v. Director of Public Prosecutions[25]; see also Hornsby[26]).
[17]             at 439-440 per Taylor, J. with whom Owen, J. agreed
[18] (1976) 180 C.L.R. 213 at 225 per Gibbs, J.
[19] (1980) 147 C.L.R. 246 at 248 per Gibbs, C.J.
[20]             at 597-598 per Callaway, J.A.
[21] [1996] 2 V.R. 582
[22]             [2000] VSCA at 176 [32]
[23]             at 207-8, 215 and 217 per Kirby, P., Mahoney and Handley, JJ.A. respectively
[24] [1988] 1 Qd.R. 528 at 529 per Macrossan, J. and 534-535 per McPherson, J.
[25] [1995] 2 V.R. 622 at 624 per Callaway, J.A.
[26]             at 289 per Callaway, J.A.
The focus of the test has been upon the direct legal effect of the order in question rather than its practical consequences. In Carr, Gibbs, C.J. said[27]:
“The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney[28] ...
In my opinion, the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken – an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court’s power to grant special leave to appeal.”
[27] at 248
[28] (1976) 50 A.L.J.R. 439, at p.444.
Mason, J. in that case said[29]:
“The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment.”
His Honour did not consider the second approach to be correct and observed that “.. the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal.”
[29] at 256-7
Thus, unless the order itself has the legal effect of finally disposing of the rights of the parties in the principal proceeding, ordinarily it will not be treated as final. It usually follows that, if the aggrieved party can make a fresh application of the kind that has been dismissed or rejected by the order, the order in question will be treated as interlocutory notwithstanding that the possibility of the further application succeeding is so remote as to be fanciful. If it is theoretically open for the applicant to make a fresh application, the order in question is interlocutory: Southern Cross[30]. In that case the court had ordered that, in default of certain steps being taken by the plaintiff by a particular date, “the proceeding be and stand dismissed ...”. The applicant failed to comply with the order and brought an application seeking an order that the proceeding not stand dismissed. By that time, the limitation period had expired. The application was dismissed, his Honour declaring that the proceeding had been dismissed by the operation of a self-executing order. Handley, J.A. considered[31] that the order dismissing the motion for an extension of time did not “itself” finally dispose of the rights of the parties in the action. He gave two reasons for this conclusion. First, at least in legal theory, a further application for extension of time could be brought. Secondly, the order merely refused an extension of time. The fact that the proceedings stood finally dismissed was the result of the self-executing order and not the result of the order refusing an extension of time. His Honour was also of the view that the declaration that the action had been dismissed by the operation of the self-executing order was interlocutory notwithstanding that it necessarily precluded any further application to the court for a contrary declaration. His Honour considered that the declaration did not itself foreclose the possibility of an extension of time for compliance with the self- executing order being applied for and granted. Furthermore, the declaration did not itself dismiss the action but declared that the action had been previously dismissed. Thus, the rights of the parties in the principal cause had been finally determined by the self-executing order dismissing the action. The declaration did not “deal directly with the rights in contest in the action”.
[30] at 207-8 per Kirby, P.
[31] at 217

In Meddings, Macrossan, J. (with whom Andrews, C.J. agreed) held[32] that where an order (in that case, dismissing an application to extend the limitation period) does not deal directly with the rights which are the subject matter of the action, it cannot be regarded as one finally determining those rights. Similarly, his Honour said, where there remains a right to make some further application of the kind which has been dealt with, even though such a right is a theoretical one, it cannot be held that the order which has been made finally determines the rights of the parties.
[32] at 529
It was urged on us by Mr. Dennis that, since her Honour’s order prohibited the magistrate from hearing the charge, it finally determined the rights of the parties in the principal proceeding. He relied principally on the passages from the judgment of Windeyer, J. in Hall[33] to which Handley, J.A. referred in Southern Cross[34] and on the decision of the High Court in Port of Melbourne Authority v. Anshun Pty. Ltd. (No.1)[35]. I will deal with Anshun shortly, but as to the passages in the judgment of Windeyer, J. to which Handley, J.A. referred, they do not in my view assist the appellant. Mr. Dennis emphasised that her Honour’s order results in the final determination of the proceeding and thus puts an end to the “existing dispute or existing action”.
[33] at 443-5
[34] at 217
[35] (1980) 147 C.L.R. 35
In my view, however, the submission confuses the practical effect of the order with its legal effect which is to prohibit the magistrate from embarking upon the hearing of the summons by which the respondent was ordered to attend court to answer the charge which was laid against him. The order of her Honour does not itself determine the “rights” of the parties in the principal “cause”. First, it does not directly deal with the substantive issues which are raised in the principal proceeding - that is to say, it does not determine whether the respondent is guilty of the common assault with which he was charged; it merely prohibits the magistrate from hearing the charge because of a procedural irregularity in respect of the summons. Secondly, there remains, at least in theory, a right in the informant to charge the respondent with a common assault at common law in respect of the incident of 10 December 1996, as was conceded by Mr. Dennis. If such a charge were laid and the respondent elected to have the matter determined summarily, the proceeding and the maximum penalty would be exactly the same as those that would be applied to the summary charge of common assault. It is true that s.26(4) of the Act precludes him from filing another like summary charge, but that is because of the operation of the legislation and not because of the direct legal effect of her Honour’s order.
Further, in my view, Anshun does not assist the applicant. The order in that case stayed the proceeding as an abuse of process and the reason the High Court held that it finally disposed of the rights of the parties was that the applicant for leave was precluded by a rule of law – res judicata – from pressing his claim in the proceeding. The court was not concerned with an order which resolved the question of whether the process had lapsed, which is this case.
Thus, in my opinion, her Honour’s order is interlocutory and not final. In the circumstances, unless leave is granted, the appeal is incompetent and must be dismissed as such, the court having no jurisdiction to hear it (Little v. State of Victoria[36]). Consequently, I turn to consider whether leave to appeal should be granted to the informant.
[36] [1998] 4 V.R. 596 at 597 per Callaway, J.A.
It is trite that, in order to obtain leave, the applicant must show that the decision is attended with sufficient doubt and that there is a risk that substantial injustice would be caused if the decision were to stand. In general, applications for leave to appeal are disposed of without the giving of detailed reasons (X v. Director of Public Prosecutions[37]) although it must be borne in mind that where leave is refused because a decision is not attended with sufficient doubt, the Court of Appeal does not thereby affirm the decision, nor does the decision acquire the precedential status of this Court (X v. D.P.P.[38]). In my view, her Honour’s decision is not attended with sufficient doubt to warrant it being reconsidered on appeal notwithstanding that it raises important legal issues.
[37] [1995] 2 V.R. 622 at 623 per Brooking, J.A. with whom Charles, J.A. agreed; see also Callaway, J.A. at 626.
[38] at 626 per Callaway, J.A.
Her Honour decided that, having regard to the relevant provisions of the Act and to what Hayne, J. said in Nitz v. Evans[39], the legal requirements for the extension of the mention date had to be strictly complied with and that, since the validity of that step was under proper challenge by the respondent, the prosecution was required to establish that the extension was valid, otherwise the magistrate could not properly hear the charge. In my view, the correctness of this aspect of her Honour’s decision is not attended with the necessary degree of doubt. Her Honour also concluded, in effect, that, on the evidence before the magistrate, he could not have been reasonably satisfied that the mention date was extended within the time prescribed by the Act. It was not a matter of her Honour substituting her opinion as to the adequacy of the relevant evidence for that of the magistrate as Mr. Dennis submitted was the case. What her Honour in substance decided, in the context of reviewing the magistrate’s decision, was that no magistrate, acting reasonably, could have been satisfied on the evidence that the mention date had been validly extended. Thus, her Honour concluded that the summons had lapsed and the magistrate could not properly hear the charge.
[39] (1993) 19 M.V.R. 55
In my opinion, the correctness of this aspect of the decision is also not attended with sufficient doubt. It is apparent from the informant’s evidence that he had absolutely no recollection of the date or the approximate date on which he caused the mention date to be extended; more particularly, whether it was done by 5 March 1998. His evidence on that issue was vague and uncertain. In his evidence- in-chief, in answer to a leading question, he claimed that he believed that he extended the return date within one month of 5 March 1998. The only bases for that assertion was his claimed knowledge of the “rule” (namely, the requirement of the legislation for a valid extension of the mention date) and that the registrar would not have extended the summons after the relevant period. But in cross-examination he agreed that he could not say when the mention date was extended and agreed that it could have been done in the second two weeks of March 1998 (which would have been beyond the period allowed for by s.32(2)). In my view, her Honour’s conclusion that “.. there is no satisfactory evidence that the informant [duly] extended the summons ..” was fully justified.
Furthermore, neither s.81 of the Evidence Act 1958 on which Mr. Dennis relied before us, but not, as I understand it, before her Honour, nor the common law presumption of regularity takes the matter any further. No date was appended on the summons by the deputy registrar so that it is unlikely that s.81 operated in this case. In any event, after hearing preliminary submissions from counsel for the respondent and discussing the matter with the registrar, the magistrate determined that he would resolve the issue on the evidence; he was obviously not satisfied that, in the circumstances, any relevant presumption operated to establish that the mention date of the summons was validly extended. Hence, his direction that evidence was required to establish that fact.
It was also submitted by Mr. Dennis that her Honour wrongly held that the magistrate ought to have applied the criminal standard of proof or alternatively the civil standard according to Briginshaw v. Briginshaw[40] when considering whether the evidence established that the summons was validly extended. He also contended that, in determining whether the magistrate erred in his conclusion, her Honour must have applied the criminal standard of proof or the Briginshaw civil standard. Mr. Dennis argued that the procedural issue whether the mention date was validly extended is to be determined by the court on the balance of probabilities. I agree that this issue is to be resolved on the balance of probabilities but in my view, for the reasons I briefly state later, her Honour did not err as is contended for by Mr. Dennis.
[40] (1939) 60 C.L.R. 336
In a criminal case, ordinarily it is only the facts that constitute the element of the offence charged or of a defence which is to be negated by the Crown that must be established beyond reasonable doubt unless the fact is, in a strictly logical sense, an indispensable link in the chain of sequential reasoning leading to a finding of guilty – R. v. Koeleman[41]; see also R. v. Best[42]. Thus, for example, where the issue is whether the court has jurisdiction to entertain a criminal prosecution, the Crown carries the onus of proof, but it is only required to establish the matter to the level of the civil standard of proof – Thompson v. R.[43]. Mason, C.J. and Dawson, J. said in that case[44]:
“This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged. Proof of the commission of the offence must be demonstrated beyond reasonable doubt. But this does not mean that proof of the existence of jurisdiction must first be established beyond reasonable doubt. ...
The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf. Ahern v. The Queen[45]. The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged. To extend the protection in this way would travel beyond the interests which the law seeks to safeguard in imposing the criminal standard of proof and at the same time adversely affect the public interest in the administration of justice by allowing a wrongdoer to escape conviction, notwithstanding that the balance of probabilities suggest that the wrongdoer is subject to the jurisdiction from which he seeks to escape.”
See also Brennan, J.[46] and Deane, J.[47] in that case.
[41] [2000] VSCA 141 at [27] per Tadgell, J.A.
[42] [1998] 4 V.R. 603 at 618 per Callaway, J.A.
[43] (1989) 169 C.L.R. 1
[44]             at 12-13
[45] (1988) 165 C.L.R. 87, at pp.103-5
[46]             at 29-30
[47]             at 37
As I have said, in my view, her Honour did not err on this issue. After carefully reviewing the informant’s evidence, the learned judge held, in effect, that it was not reasonably open to the magistrate to have concluded on that evidence that the informant had extended the mention date within the prescribed time. Her Honour said “there is no satisfactory evidence that the informant extended the summons [within the time allowed by the Act]”. This conclusion constituted her Honour’s relevant finding on this issue. It is apparent from the judgment that nothing said by her Honour to that point suggests that she applied a criminal standard of proof or a Briginshaw civil standard. Nor did her Honour suggest that the magistrate should have done so. It is true that some pages later in her judgment, in the penultimate paragraph of it, her Honour spoke of the standard of proof in terms that might suggest that the magistrate should have applied a higher standard. But in my view, bearing in mind that this passage in the judgment was viewed by her Honour as an “observation”, that it appears some time after she had expressed her relevant finding and that, in its terms, it is unrelated to the finding, what her Honour there said did not form part of her reasoning process which led to the relevant finding. Consequently, it can be disregarded for present purposes. Furthermore, I repeat that on the assumption that the ordinary civil standard of proof was to be applied, in my view there was no evidence that the informant extended the summons within the time allowed.
I am also of the view that no substantial injustice will result from her Honour’s decision if it were to stand, notwithstanding its practical effect is that the prosecution will not be able to issue another summons alleging common assault under the Summary Offences Act. I have mentioned that, as Mr. Dennis concedes, the prosecution can issue a summons alleging the common law offence of common assault arising out of the incident that occurred on 10 December 1996. The essential ingredients of that offence are the same as those applicable to the summary offence with which the respondent was charged. Moreover, if the respondent so elects, the common law prosecution can be tried summarily in which case the procedure for resolving the common law charge and the maximum penalty would be the same as those operating in respect of the summary charge. True it is that if there is no such election by the respondent, the prosecution will have to proceed by way of indictment, but in my view, that does not constitute substantial injustice.
For these reasons, I would refuse leave to appeal and dismiss the appeal as
incompetent.

- - -

Brereton v. Sinclair

TADGELL, J.A.

[2000] VSCA 211

3 November 2000